PD-1664-14
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 2/4/2015 12:19:57 PM Accepted 2/6/2015 2:35:03 PM ABEL ACOSTA
CLERK
PD-1664-14
IN THE
COURT OF CRIMINAL APPEALS AT AUSTIN
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NO. 01-13-00259-CR
IN THE
FIRST DISTRICT COURT OF APPEALS HOUSTON, TEXAS
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February 6, 2015 ALYSSA PULLEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
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CAUSE NO. 1817849
IN COUNTY CRIMINAL COURT AT LAW NO. 4 HARRIS COUNTY, TEXAS
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APPELLANT’S PETITION FOR DISCRETIONARY REVIEW GARY S. MILLER
State Bar No: 24051050
1018 Preston St., Suite 500 Houston, TX 77002
tel: (713) 223-4200
fax: (713) 568-2820
gary@millerdefense.com
ORAL ARGUMENT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT Pursuant to TEX. R. APP. P. 68.4 (c), Appellant requests oral argument.
Issues raised in this petition are fact specific and oral argument would allow the parties to address any concerns or questions this Court may have. The First Court of Appeals’ opinion conflicts with decisions from the U.S. Supreme Court. Additionally, the issue presents an important question of law that has not yet been addressed by this Court.
IDENTIFICATION OF THE PARTIES AND COUNSEL Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all interested parties is provided below. Counsel for the State on appeal:
Carly Dessauer — Assistant District Attorney of Harris County 1201 Franklin St., Suite 600, Houston, Texas 77002
Devon Anderson ⎯ District Attorney of Harris County 1201 Franklin St., Suite 600, Houston, Texas 77002
Counsel for the State at the trial court:
Matt Harding ⎯ Assistant District Attorney of Harris County 1201 Franklin St., Suite 600, Houston, Texas 77002
Coby Leslie ⎯ Assistant District Attorney of Harris County 1201 Franklin St., Suite 600, Houston, Texas 77002
__________________________________________________________________
Appellant:
Alyssa Pullen
Counsel for Appellant:
Gary S. Miller
1018 Preston St., Suite 500, Houston, Texas 77002
Counsel for Defendant at trial court:
Gary S. Miller
Laine D. Lindsey
Trial Judge:
Honorable John Clinton
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT……………………………… 2
IDENTIFICATION OF THE PARTIES AND COUNSEL……..………………… 3 INDEX OF AUTHORITIES……………………………………………………… 5
STATEMENT OF THE CASE……………………………………………………..7 STATEMENT OF THE PROCEDURAL HISTORY………………………………7 REASONS FOR REVIEW…………………………………………………………8 GROUND FOR REVIEW………………………………………………………….8
Is it reasonable under the Fourth Amendment for an officer with superior expertise conducting DWI investigations to detain a suspected intoxicated driver for thirty minutes to wait for another officer with inferior DWI expertise with no video recording equipment?……………………………………………………………….……..……. 9
PRAYER FOR RELIEF………………….……………………………………… 18 CERTIFICATE OF SERVICE……………….………………………………..… 18 CERTIFICATE OF COMPLIANCE……………………………………………. 19
INDEX OF AUTHORITIES
CASES
Belcher v. State, 244 S.W.3d at 539 (Tex. App.—Fort Worth 2007, no pet.)………………………… 11, 12
Bullock v. State, No. 01-11-00347-CR (Tex. App—[1st Dist.], Nov. 21, 2012)………………… 11, 12, 13
Cady v. Dombrowski, 413 U.S. 433, 437 (1973)………………………………………………….….……..… 14
Florida v. Royer, 460 U.S. 491, 500 (1983)…………………………………………………………….… 8
Hartman v. State, 144 S.W.3d 568, 572 (Tex. App.—Austin 2004)………………………….…… 11, 12, 14
Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004)……………………………………………. 14
Michigan v. Summers, 452 U.S. 692 (1981)……………………………………………………………………. 8
Sibron v. New York, 392 U.S. 40 (1968)…………………………………………………………………….. 17
Smith v. State, No. 03-06-00085-CR, 2007 WL 700834 (Tex. App.—Austin Mar. 7, 2007, pet. ref.’d)(mem. op., not designated for publication)……………… 11, 17
United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004)………………………………………………….……14
United States v. Sharpe, 470 U.S. 675 (1985)………………………………………………………… 8, 10, 11, 14
RULES TEX. R. APP. P. 66.3 (c)…………………………………………………………… 7 TEX. R. APP. P. 68.2 (a)…………………………………………………………… 6
TEX. R. APP. P. 68.4(a)……………………………………………………………. 3 TEX. R. APP. P. 68.4 (c)….……….…………………………………………..…… 2
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
Appellant was charged by information with driving while intoxicated. (CR 3). A jury convicted Appellant of the charged offense and the trial court sentenced her to 3 days in the Harris County Jail and a $1,500.00 fine. (CR 58).
STATEMENT OF THE PROCEDURAL HISTORY On August 26, 2014, a unanimous panel of the First Court of Appeals issued an unpublished opinion affirming the trial court’s denial of Appellant’s motion to suppress. Pullen v. State, No. 01-13-00259-CR (Tex. App. — Houston [1st. Dist.] Aug. 28, 2014, pet. filed) (not designated for publication). A motion for en banc rehearing was filed by Appellant on October 10, 2014, which was denied on November 20, 2014. The First Court of Appeals also issued an order on November 20, 2014, titled “corrected pages to opinion issued.” (See Appendix A). After one extension was granted, this petition for discretionary review is timely if filed by January 21, 2015. See TEX. R. APP. P. 68.2(a).
The First Court of Appeals held that the trial court did not err in denying Appellant’s motion to suppress because the thirty minute detention of Appellant was reasonable under the Fourth Amendment. Pullen, 14. The Court held that the thirty minute delay was justified by legitimate law enforcement purposes in furtherance of the investigation. Id. at 13. The First Court of Appeals also held that the duration of Appellant’s detention was also reasonable under the Fourth Amendment. Id. at 14.
REASONS FOR REVIEW
This petition for discretionary review should be granted because the First Court of Appeals’ decision conflicts with U.S. Supreme Court cases, namely United States v. Sharpe, 470 U.S. 675 (1985), Florida v. Royer, 460 U.S. 491, 500, (1983), and Michigan v. Summers, 452 U.S. 692 (1981). See TEX. R. APP. P. 66.3(c). Appellant’s warrantless detention for thirty minutes failed to effectuate the purpose of the detention because the delay was solely to wait for an “designated DWI Unit” with inferior expertise and no additional necessary video equipment.
GROUNDS FOR REVIEW
The U.S. Supreme Court has strictly limited the duration of warrantless seizures to the amount of time necessary to quickly dispel the suspicion of criminal activity. Sharpe, 470 U.S. at 686. The U.S. Supreme Court has never found that a citizen could be reasonably detained strictly because of personnel assignments or “designations” of particular officers within a police department. Namely, this Court should determine whether a thirty minute detention by an officer with superior expertise and knowledge is reasonable under the Fourth Amendment in order to wait for an officer with inferior knowledge and less experience but had the personnel assignment of being an “designated DWI Unit.” This investigation was not conducted more efficiently or enhanced by waiting for thirty minutes for the arrival of the “designated DWI Unit” HPD Officer Sanchez. Officer Musket had no video recording equipment and neither did Officer Sanchez. Legitimate law enforcement purposes have never been defined by this Court under the reasonableness standard of the Fourth Amendment and the courts of appeals have improperly expanded permissible legitimate law enforcement purposes.
GROUND FOR REVIEW
Is it reasonable under the Fourth Amendment for an officer with superior expertise conducting DWI investigations to detain a suspected intoxicated driver for thirty minutes to wait for another officer with inferior DWI expertise with no video recording equipment?
The First Court of Appeals ignores the fact that the thirty minute delay waiting for “designated DWI Unit” did not directly effectuate the purpose of the detention — after the delay an officer with inferior expertise arrived with no necessary video equipment. This Court has the opportunity to define the permissible of legitimate law enforcement purposes during warrantless detentions in Texas under the Fourth Amendment. The entire purpose of a warrantless detention by one officer is to delay to allow for another officer to arrive in order to elevate the investigation through superior knowledge, expertise or equipment — thereby, making the delay a worthy and reasonable endeavor.
The sole reason for the thirty minute delay of Appellant was waiting for the “designated DWI Unit” to arrive the scene. Both Officers Muskiet and Sanchez did not have video recording devices on their HPD patrol vehicles. Musket never testified he felt that he was in danger or needed back-up officers for officer safety purposes. No evidence was presented that the “designated DWI Unit” had superior training or experience, in fact, the opposite was true. Officer Muskiet (the initial officer) had conducted far more DWI investigations in his career than Officer Sanchez. Muskiet testified that he was fully qualified to conduct DWI investigations and had done so many occasions and could efficiently and effectively investigate Appellant’s suspected intoxication. (RR III 38, 47). Nothing prevented the fully trained and available officer from investigating Appellant except Muskiet calling in for a “DWI Unit” - anticipating and expecting an officer with superior knowledge and expertise (like a HPD DWI task force officer) to arrive. HPD Officer Sanchez’s investigation at the scene was a total of eight minutes compared to the delay of 30 minutes waiting for her arrival. She failed to even offer the Appellant the full battery of the three standardized field sobriety tests — contrary to her training, again, demonstrating her detriment to the investigation.
In United States v. Sharpe, 470 U.S. 675 (1985), the U.S. Supreme Court found that the patrol officer was justified in waiting for the DEA agent to arrive because he knew about the investigation and had superior training, knowledge, and experience in handling narcotics investigation. Id. at 687. The Supreme Court’s standard in Sharpe exemplifies the direct nature of the delay — it enhanced and furthered the investigation in order to be conducted by an expert officer. Appellant’s case is the reverse of the officers involved in Sharpe - the thirty minute delay was spent waiting for an officer with inferior training, knowledge and experience handling DWI investigations. Court of appeals in Texas have improperly expands the U.S. Supreme Court’s definitions of legitimate law enforcement purposes in order to find that legitimate law enforcement purposes existed in Appellant’s case.
Courts of Appeals throughout Texas have routinely affirmed warrantless detentions based on the reasonable detention of DWI suspects while waiting for a DWI Task Force officer to arrive at a scene. Bullock v. State, 426 S.W.3d 226 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Hartman v. State, 144 S.W.3d 568, 573 (holding that a five to fifteen minute delay in DWI investigation so another officer could arrive at the scene with a video camera served a legitimate law enforcement purposes); Belcher v. State, 244 S.W.3d 531, 541 (Tex. App. Fort Worth 2007, no pet.) (holding that the initial officer asked the suspect questions in furtherance of the DWI investigation, such as where the suspect had been drinking, where he had been prior to the stop and where he was going. Also the initial officer had less experience and was less efficient at conducting DWI investigations.); Smith v. State, No. 03-06-00085-CR, 2007 WL 700834, at 3–4, Tex. App.—Austin Mar. 7, 2007, pet. ref.’d)(mem. op., not designated for publication)(holding an investigative delay waiting for a rookie officer for the purpose of training was reasonable because it further a legitimate law enforcement purpose.) [emphasis added].
In Belcher v. State, the court held that a twenty-seven minute delay waiting for a more experienced officer who could perform the investigation quicker was not unreasonable in duration and served a legitimate law enforcement purpose. Belcher v. State, 244 S.W.3d 531, 540-541 (Tex. App.—Fort Worth 2007, no pet.). Inherently, DWI task force officers are experts in efficiently investigating, identifying, conducting standardized field sobriety tests, documenting and testifying about their findings in court. The delay in Belcher is directly justified and effectuated by an improvement in the investigation as a result of it being conducted by an officer with more DWI investigation expertise. The distinction in Appellant’s case occurs because the delay was waiting for a non- DWI Task Force officer — this distinction is never discussed in Appellant’s case. The delay in the Hartman case was directly justified as legitimate law enforcement purposes by the assistance of waiting for the second officer with a video recording equipment to arrive at the scene. Again, neither Officer Muskiet or Sanchez had video recording equipment, therefore, no directly related investigative tool caused the delay.
In Bullock v. State, 426 S.W.3d 226 (Tex. App.—Houston [1st Dist.] 2012, no pet.), specifically involved a delay waiting for a DWI task force officer after the initial officer had the suspect perform the HGN test (a standardized field sobriety test), he first called for a DWI task force officer and even made a second follow-up call during the delay to check on the status of the DWI task force officer. Appellant’s case is factually distinguishable on many levels from Bullock (besides, there is no DWI task force officer whatsoever); including the lack of investigative activity taken by Muskiet. Musket was fully trained and qualified to have had Appellant perform the HGN standardized field sobriety test during the delay but he simply waited instead. Muskiet never made a second call during the delay to inquiry regarding the arrival time of Sanchez.
The Court of Appeals’ opinion on pages 12-13 stated the following:
“Muskiet also explained that while a designated DWI Officer is conducting her investigation, it is the “usual practices” of patrol units to begin completing necessary paperwork, such as completing a “tow slip” if a defendant’s automobile must be towed from the scene.”
However, none of these actions are found in the record as actually being performed by Muskiet. No evidence of written paperwork by Muskiet was presented or offered into evidence by the State during trial. Muskiet never testified that he actually completed any paperwork in Appellant’s case - including no mention at all of completing a “tow slip.” Muskiet did not write an Offense Report or a supplement regarding any investigative actions he undertook. No tow slip was ever offered into evidence during the trial by the State. Absent from the record is any mention of whether or not Appellant’s vehicle was towed from the scene. Therefore, the opinion relied upon non-existent legitimate law enforcement purposes to justify the thirty minute detention of Appellant. This vague reference fails to articulate any concrete facts in order to justify Appellant’s detention. The distinct lack of specific details of legitimate law enforcement purposes undermines the State’s arguments and the Opinion issued.
The lack of any diligent investigation into Appellant’s suspected intoxication by Muskiet also rendered the duration detention unreasonable under the Fourth Amendment. The length of a temporary investigative detention is generally considered reasonable as long as the police are diligently engaged in a means of investigation that is likely to permit the officers to quickly and efficiently confirm or dispel their reasonable suspicions of criminal activity. Sharpe, 470 U.S. at 686, Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004). The question is also whether the law enforcement officer acted unreasonable in failing to choose a less intrusive method. Hartman, at 574 citing Sharpe, 470 U.S. at 687, (quoting Cady v. Dombrowski, 413 U.S. 433, 437 (1973). There is no bright line rule as to how long a traffic stop may reasonably continue; however, courts consider “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76; see United States v. Brigham,382 F.3d 500, 511 (5th Cir. 2004). Musket failed to administer any standardized field sobriety tests, failed to ask Appellant any questions about her activities that evening, how many alcoholic drinks she consumed, where she was coming from, what she had to eat, etc. He did not perform any other actions in furtherance of the investigation of Appellant’s suspected intoxicated. Muskiet had thirty minutes which provided him an abundance of time to complete the entire investigation of Appellant with his DWI expertise.
The thirty minute detention of Appellant (at her own apartment complex -
with her expectation of returning to her residence) was almost four times as long in duration as Sanchez’s entire investigation which only lasted eight minutes. The only action that Musket took was to call for “a designated DWI patrol officer” even though it caused the thirty minute delay. Muskiet made a single request and then waited and did not exercise any due diligence to investigate Appellant. He failed to ask Appellant any questions about her activities that evening, how many drinks she consumed, where she was coming from, what she had to eat, etc. He did not perform any other actions in furtherance of the investigation of Appellant’s suspected intoxicated. Muskiet had thirty minutes which provided him an abundance of time to complete the entire investigation of Appellant. Eavesdropping on Appellant’s phone conversation does not demonstrate any diligence on Muskiet’s behalf because that was not conducted in furtherance of investigating her suspected intoxication.
Sanchez’s inexperience and inadequate knowledge regarding DWI investigation were repeatedly demonstrated throughout the trial. The officer conducted an improper HGN demonstration, she did not know the three phases of DWI investigation and detection as taught by NTSHSA (RR III 127)., had only been involved in maybe a total of four prior DWI investigations, she had only been out the police academy six months prior to Appellant’s arrest, she was not a member of the Houston Police Department DWI Task Force, there was no video camera in her car, she needed assistance from Officer McRae, and she signed the DIC-23 document without actually personally reading it to Appellant.
It is inherently unreasonable under the Fourth Amendment to wait for an inexperienced officer whom is not a member of HPD DWI Task Force to arrive to conduct an investigation when Officer Muskiet, the initial officer, is much more qualified to continue the investigation without any delay. Muskiet is present at the scene and fully qualified to investigate Appellant’s suspected intoxicated - nothing prevented him from continuing. His decision to wait thirty minutes intentionally delayed the investigation which made it more complex and slower. The HPD policy is for patrol units to call for HPD DWI Task Force members to assist them on scene. Being labeled as a “DWI Unit” does not mean Sanchez has any specialized DWI knowledge or training - she was grossly mis-assigned that evening. Muskiet failed to comply with HPD policy - the entire reason the DWI Task Force exists is because of their superior expertise and knowledge regarding
DWI investigations. Muskiet called for a HPD DWI Task Force member to come to Appellant’s scene. Sanchez was not a member of the HPD DWI Task Force and had less knowledge than Muskiet which the panel’s opinion fails to analyze or acknowledge.
Muskiet never testified that he was purposely holding Appellant for Sanchez to gain experience as a new officer– contrary to the initial officer in the Smith case whom purposely waiting for a rookie officer so they could gain experience. Smith, at 3-4 (unpub.). The record is silent as to whether Muskiet was concerned about officer safety and was not argued by the State as a reason to justify Appellant’s detention.
The mere existence of a police policy alone does not render a particular search or seizure reasonable or otherwise immune from scrutiny under the Fourth Amendment. See Sibron v. New York, 392 U.S. 40, 61, (1968) (“The question in this Court upon review of a state-approved search or seizure is not whether the search (or seizure) was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment”). A police department whom assigns officers without any specialized knowledge or expertise in the particular subject matter should not be allowed to detain citizens pursuant to such a policy — in order to wait for for an inferior investigator with no necessary equipment. Delays in an investigation must directly enhance and elevate law enforcement officers’ investigative efforts, if not, the Fourth Amendment protects citizens from warrantless detentions.
PRAYER FOR RELIEF
It is respectfully requested that this Petition be granted, the First Court of Appeals’ judgment be reversed, and the court ordered to enter findings consistent with this Court’s opinion.
Respectfully submitted:
/S/ GARY S. MILLER
GARY S. MILLER
Attorney for Alyssa Pullen State Bar No: 24051050
1018 Preston St., Suite 500 Houston, TX 77002
phone: (713) 223-4200
fax: (713) 568-2820
gary@millerdefense.com
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, this certifies that on January 21, 2015, a copy of the foregoing Petition was mailed to the following address: Assistant District Attorney Carly Dessauer, Harris County District Attorney’s Office, 1201 Franklin Street, Houston, Texas 77002. The revised version was sent by e-mail on February 4, 2015.
/S/ GARY S. MILLER
GARY S. MILLER
CERTIFICATE OF COMPLIANCE I, Gary S. Miller, hereby certify that the Appellant’s Petition for Discretionary Review contains 3,489 words according to Apple Pages 5.1 which was used to generate this document according to TEX. R. APP. P. 9.4 (3).
GARY S. MILLER /S/
GARY S. MILLER
Date: January 21, 2015