Susan Marie Nacu v. State

• Court: Court of Appeals of Texas
• Decided: May 16, 2012
• Docket: 04-11-00281-CR
• Status: Published

Opinion

OPINION No. 04-11-00281-CR

Susan Marie NACU, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2007CR3364 Honorable Melisa Skinner, Judge Presiding

Opinion by: Rebecca Simmons, Justice Concurring Opinion by: Steven C. Hilbig, Justice

Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: May 16, 2012

AFFIRMED

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. 04-11-00281-CR

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 customers, 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 car 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 between 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.

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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 (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, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (citing Terry, 392 U.S. at 21). The totality

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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 (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 (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

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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, 125 S.W.3d 535, 538–39 (Tex. App.—Houston [1st

Dist.] 2002, no pet.); Fudge, 42 S.W.3d at 232.

Here, Williams identified herself to Officer Hoffman as a manager at a restaurant where a

customer had become intoxicated, and she explained that the customer was too intoxicated to

drive. She then identified the intoxicated person by pointing to Nacu’s vehicle. This

information is sufficient for establishing the first and second factors for determining reliability.

See Arizpe, 308 S.W.3d at 92; see also Brother, 166 S.W.3d at 258. There is no evidence that

Nacu was a paid informant; therefore, the third factor is satisfied. See Arizpe, 308 S.W.3d at 92;

see also Brother, 166 S.W.3d at 258. Finally, the facts show Williams placed herself in a

position to be held accountable for her report. See Arizpe, 308 S.W.3d at 92; see also Brother,

166 S.W.3d at 258. Williams explained to Hoffman that she was a manager at a restaurant.

Officer Hoffman’s testimony was inconsistent regarding whether Williams stated the name of the

restaurant she managed. However, it is undisputed that Officer Hoffman’s vehicle was parked in

the vicinity of Crabby Jacks and that Hoffman returned to Crabby Jacks after apprehending Nacu

where Williams positively identified Nacu and voluntarily agreed to be a witness against her.

Based on these facts, Williams placed herself in a position to be identified and held accountable

for the information she provided. See Arizpe, 308 S.W.3d at 92; Fudge, 42 S.W.3d at 232;

Pipkin, 114 S.W.3d at 655.

Considering all four factors we used in Arizpe, we conclude that Williams’ information

was reliable. See Arizpe, 308 S.W.3d at 92; see also Brother, 166 S.W.3d at 258.

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2. Corroboration

Having determined Williams’ information was reliable, we must determine “whether the

totality of that reliable information provided specific, articulable facts that, combined with

reasonable inferences to be derived from those facts, would lead to the reasonable conclusion

that the appellant was committing . . . some type of criminal activity.” See Derichsweiler v.

State, 348 S.W.3d 906, 915–16 (Tex. Crim. App. 2011); see also Martinez, 348 S.W.3d at 923.

Before detaining a suspect, an officer must corroborate the facts supplied by a citizen-

eyewitness. Brother, 166 S.W.3d at 258–59, 259 n.5. However, corroboration does not require

the officer to personally observe criminal conduct; “[r]ather, corroboration refers to whether the

police officer, in light of the circumstances, confirms enough facts to reasonably conclude that

the information given to him is reliable and a temporary detention is thus justified.” Id. at 259

n.5; see also Dixon v. State, 206 S.W.3d 613, 616 n.13, 617 n. 17, 618–19 (Tex. Crim. App.

2006).

Considering the totality of the circumstances, Officer Hoffman’s seventeen years of

police experience, and the reliability of Williams’ information, we hold Officer Hoffman

corroborated enough facts to justify a temporary detention of Nacu. See Derichsweiler, 348

S.W.3d at 916 (Tex. Crim. App. 2011); Brother, 166 S.W.3d at 258–59. Williams ran into a

parking lot while holding a cordless indoor-phone. She obtained Officer Hoffman’s attention by

tapping on his police car’s window. She explained that she was the manager of a restaurant, a

customer became intoxicated at her restaurant, and now the customer was attempting to drive

away. There was a restaurant in the vicinity of Hoffman’s patrol car. Williams identified the

intoxicated customer by pointing to the customer’s vehicle and describing it as the one that was

trying to get through two metal poles. The metal poles were too narrow to allow passage of

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Nacu’s vehicle, and Nacu almost ran into them. Hoffman testified that Williams appeared

trustworthy. Because of the immediacy and danger that intoxicated drivers pose to the public,

Hoffman pursued Nacu without obtaining further identifying information from Williams.

These are sufficient facts to establish reasonable suspicion. See Martinez, 348 S.W.3d at

923; cf. Derichsweiler, 348 S.W.3d at 917 (determining reasonable suspicion existed where

officer was dispatched because a motorist was pulling up to parked vehicles and staring at them

in a “bizarre” manner). Because Officer Hoffman corroborated Williams’ reliable information,

he was not required to follow Nacu until he personally observed a traffic violation. Brother, 166

S.W.3d at 259 (“To require officers who are apprised of detailed facts from citizen-eyewitnesses

to observe suspects and wait until additional suspicious acts are committed, would be foolish and

contrary to the balance of interests struck in Terry and its progeny.”).

3. Conclusory Statements

Nacu contends that even if Williams’ information was reliable and was corroborated, the

information did not justify the stop because the statement “too intoxicated to drive” is purely

conclusory. Nacu relies on the court of criminal appeals’ holding in Ford to support her claim.

See Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005).

In Ford, the court determined that a trooper’s statement that he believed the defendant

was “following too closely,” without more specific, articulable facts, was insufficient to establish

reasonable suspicion. Id. Because the trial court was provided only with the conclusory

statement that Ford violated the law, the court determined there was no way of assessing whether

the conclusory opinion was “objectively reasonable.” Id. In Castro, the court further explained

when a conclusory statement will suffice for establishing reasonable suspicion. Castro v. State,

227 S.W.3d 737, 742 (Tex. Crim. App. 2007). When reasonable suspicion is based on an

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objective observation or fact such as whether a defendant used his turn signal, a conclusory

statement may suffice for determining reasonable suspicion. See id. In dicta, the court stated

that “being intoxicated” can be an example of a subjective determination that must be

accompanied by specific and articulable facts to establish reasonable suspicion. See id.

Absent any context, Williams’ statement that Nacu was “too intoxicated to drive” is

conclusory. However, Williams’ explanation that the driver of a vehicle had previously been in

her restaurant, was intoxicated, and trying to drive through metal poles too narrow to

accommodate a car, gave Hoffman specific, articulable facts that would allow a reviewing court

to determine whether Nacu’s detention was objectively reasonable. See Derichsweiler, 348

S.W.3d at 917; Castro, 227 S.W.3d at 742; Ford, 158 S.W.3d at 493.

Moreover, Nacu’s narrow interpretation of Ford does not comport with the court of

criminal appeals’ holding in Derichsweiler. In Derichsweiler, an informant testified at the

suppression hearing and stated that the defendant pulled up beside her and her husband at a

restaurant drive-through and “[j]ust kind of grinn[ed]” at them. Derichsweiler, 348 S.W.3d at

909–10 (first alteration in original), cert. denied, 132 S. Ct. 150 (2011). The defendant lingered

beside them for less than a minute and drove around the lot. Id. The driver repeated this

behavior two more times, drove off, and pulled up to at least two other vehicles in a nearby lot.

Id. The couple dialed 911 and reported this behavior. Id. The court determined that the reliable

informants’ tip to the 911-dispatcher describing the defendant’s “bizarre” and “scrutinizing”

behavior was sufficient for establishing reasonable suspicion. Id. at 917.

What sets Derichsweiler’s facts and the facts underlying Nacu’s detention apart from

those in Ford are the specific and articulable facts provided by the detaining officers to support

the witnesses’ conclusory statements. In Ford, the only testimony offered to support a finding of

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reasonable suspicion was that the suspect was following too closely. Ford, 158 S.W.3d at 493.

In Derichsweiler, the specific and articulable facts testified to were that a suspicious driver was

grinning and staring at parked motorists, the driver repeated this behavior, and that it was

directed toward at least three different parked vehicles. See Derichsweiler, 348 S.W.3d at 909–

10. Here, it is arguable that the testimony offered by Hoffman provided the trial court with more

specific and articulate facts that Nacu was engaged in criminal activity than did the detaining

officer in Derichsweiler. Compare id. at 917. Additionally, the difference in experience levels

between Officer Hoffman (seventeen years) and the detaining officer in Derichsweiler (less than

a year) further supports a determination that the detention of Nacu was objectively more

reasonable than that of Derichsweiler. Id. at 910; see also Davis v. State, 829 S.W.2d 218, 220

(Tex. Crim. App. 1992) (“In justifying a stop, the police officer can make rational inferences

from the articulable facts based upon the officer’s personal knowledge and experience.”).

We also note that the underlying facts and legal principles surrounding Nacu’s detention

are distinguishable from those in Torres. See Torres v. State, 182 S.W.3d 899, 900–03 (Tex.

Crim. App. 2005). After Torres crashed his vehicle into a homeowner’s porch, two sheriff’s

deputies were the first on the scene to investigate the accident. Id. The deputies called a state

trooper to investigate the accident. Id. The deputies explained to the trooper “only that they

believed that appellant was intoxicated,” and left the scene. Id. The trooper questioned Torres

but did not ask him if he had been drinking. Id. After seeing Torres favor one arm, the trooper

arrested him without performing field sobriety tests. Id. The court held that the deputies’

unexplained opinions that Torres was intoxicated were not sufficient for establishing probable

cause. Id. at 903. Notably, the court in Torres was concerned with probable cause, see id. at

901, a standard that is more exacting than the standard for determining reasonable suspicion, see

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Derichsweiler, 348 S.W.3d at 916; accord Alabama v. White, 496 U.S. 325, 330 (1990).

Additionally, the arresting officer did not give any specific and articulable facts that supported a

determination that Torres was intoxicated. See Torres, 182 S.W.3d at 903. As discussed above,

Officer Hoffman supplied the court with numerous specific and articulable facts that supported

the trial court’s determination that Hoffman had reasonable suspicion to detain Nacu.

Because Williams’ reliable, conclusory statement was supplemented with objective,

specific, and articulable facts that were corroborated by Officer Hoffman, the trial court did not

err in denying Nacu’s motion to suppress.

CONCLUSION

For the reasons stated above, the trial court did not err in denying Nacu’s motion to

suppress evidence. Accordingly, we affirm the trial court’s judgment.

Rebecca Simmons, Justice

PUBLISH

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