Nacu v. State

373 S.W.3d 691, 2012 WL 1708042, 2012 Tex. App. LEXIS 3832
CourtCourt of Appeals of Texas
DecidedMay 16, 2012
DocketNo. 04-11-00281-CR
StatusPublished
Cited by14 cases

This text of 373 S.W.3d 691 (Nacu v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nacu v. State, 373 S.W.3d 691, 2012 WL 1708042, 2012 Tex. App. LEXIS 3832 (Tex. Ct. App. 2012).

Opinions

OPINION

Opinion by:

REBECCA SIMMONS, Justice.

Appellant Susan Marie Nacu was charged with felony driving while intoxicated, third offense. After the trial court denied her motion to suppress evidence, Nacu entered a plea of nolo contendere. She now challenges the trial court’s ruling on her motion to suppress evidence. We affirm the trial court’s judgment.

Background

On the evening of March 7, 2007, Peggi Ann Williams, the manager of a Crabby Jacks’ restaurant, observed an intoxicated customer, Nacu, disturbing other custom[693]*693ers, using profanity, throwing napkins and sugar packets, and asking other customers to buy her alcohol after Crabby Jacks’ employees had refused Nacu further alcohol service. Williams recognized that Nacu was intoxicated and asked Nacu on several occasions if she would accept a cab ride home. Nacu refused each offer. When a customer informed Williams that Nacu was in her ear in the parking lot attempting to drive away, Williams grabbed a cordless office phone and ran outside.

Before she could dial the non-emergency police line to report Nacu, Williams noticed a police car parked in a lot adjacent to the Crabby Jacks parking lot. Instead of phoning the police, she tapped on Officer Steven Hoffman’s window. Hoffman was patrolling for car burglars, and his presence in the parking lot was purely coincidental. Williams testified that she told Officer Hoffman that a “woman had been in my restaurant, I noticed her to be intoxicated and she had gotten in a car.” Officer Hoffman asked, ‘Which woman?” Williams pointed to Nacu’s car, and explained, “that vehicle trying to drive ber tween the two metal poles.” Williams testified that the two poles were not wide enough to allow Nacu’s vehicle to pass and that Nacu almost hit the poles. Hoffman immediately spotted and drove toward Nacu’s vehicle without obtaining any further information from Williams. Hoffman followed Nacu for a short distance without activating the patrol car’s overhead lights. Nacu drove about twenty feet on a highway frontage road and pulled her vehicle into a different parking lot. Hoffman parked behind her and then activated his overhead lights. Once Hoffman physically approached Nacu, he immediately noticed signs of her intoxication.

Williams and Officer Hoffman testified at the suppression hearing. Hoffman testified that he did not personally observe Nacu commit any traffic violation. He stated his sole basis for the traffic stop was Williams’ - unsolicited statement, “[Nacu] was too intoxicated to drive.” The trial court found both Williams and Hoffman to be credible. The trial court denied Nacu’s motion to suppress evidence, and she pleaded nolo contendere to driving while intoxicated. Nacu appeals the trial court’s ruling.

Motion to Suppress

Nacu contends the trial court erred in denying her motion to suppress and raises two issues on appeal: (1) Officer Hoffman lacked reasonable suspicion to stop Nacu because he failed to corroborate Williams’ information, and (2) Williams’ conclusory statement to Hoffman that Nacu was “too intoxicated to drive” does not give rise to reasonable suspicion.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010); Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). We give almost total deference to the trial court’s factual determinations, but we review de novo the application of law to the facts. Valtierra, 310 S.W.3d at 447-48.

B. Reasonable Suspicion

A valid temporary detention must be reasonable and justified at its inception. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004). An officer is justified in initiating a traffic stop “if the officer, based upon specific and articulable facts, reasonably surmises that the detained person may be associated with a crime.” Davis v. State, [694]*694829 S.W.2d 218, 219 (Tex.Crim.App.1992) (citing Terry, 392 U.S. at 21, 88 S.Ct. 1868). The totality of the circumstances is considered when making a reasonable-suspicion determination, and the standard is an objective one. Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.2011). An officer need not personally observe the traffic violation; under certain circumstances, a stop may be justified if the facts underlying the traffic stop are observed by a civilian-informant. Brother v. State, 166 S.W.3d 255, 257-58 (Tex.Crim.App.2005) (citing Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). A citizen’s tip may justify the initiation of a stop if the tip contains “sufficient indicia of reliability.” Arizpe v. State, 308 S.W.3d 89, 92 (Tex.App.-San Antonio 2010, no pet.) (quoting Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (internal quotation marks omitted)).

1. Reliability

The main issue in this case is the reliability of Williams’ information. At the time of the incident, Williams did not identify herself by name to Officer Hoffman. Consequently, we treat her as an anonymous citizen informant. We evaluate four factors in determining the reliability of an anonymous citizen’s information: “(1) whether the informant provide[d] a detailed description of the wrongdoing; (2) whether the informant observed the wrongdoing firsthand; (3) whether the informant is somehow connected with the police (e.g., a paid informant); and (4) whether the informant place[d] himself in a position to be held accountable for the report.” Arizpe, 308 S.W.3d at 92 (citing Pipkin v. State, 114 S.W.3d 649, 655 (Tex.App.-Fort Worth 2003, no pet.)); accord Brother v. State, 166 S.W.3d 255, 258 (Tex.Crim.App.2005). When determining an informant’s reliability, courts distinguish between anonymous 911-callers and unidentified informants who give unsolicited information to officers in a face-to-face manner. Arizpe, 308 S.W.3d at 92-93; accord State v. Fudge, 42 S.W.3d 226, 230 (Tex.App.-Austin 2001, no pet.). The face-to-face informant is inherently more reliable than the anonymous 911-caller because the face-to-face informant places himself in a position to be held responsible for his intervention. Arizpe, 308 S.W.3d at 93; see also Mitchell v. State, 187 S.W.3d 113, 117-18 (Tex.App.-Waco 2006, pet. ref'd); Hawes v. State,

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Bluebook (online)
373 S.W.3d 691, 2012 WL 1708042, 2012 Tex. App. LEXIS 3832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nacu-v-state-texapp-2012.