Mohammad Zibafar v. State

Opinion issued October 6, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01139-CR

———————————

Mohammad Zibafar , Appellant

V.

The State of

Texas , Appellee

On Appeal from the County Criminal Court at Law #11

Harris County, Texas

Trial Court Case No. 1690851

MEMORANDUM OPINION

After the

trial court denied his motion to suppress evidence, appellant, Mohammad

Zibafar, with an agreed punishment recommendation from the State, pleaded

guilty to the offense of driving while intoxicated. [1] In accordance with the plea agreement, the

trial court sentenced appellant to one year in jail, suspended the sentence,

placed him on community supervision for two years, and assessed a fine of

$100. In two issues, appellant contends that

the trial court erred in denying his motion to suppress evidence on the ground

that the arresting officer did not have reasonable suspicion to detain him. [2]

Background

At the hearing on appellant’s motion

to suppress evidence, La Porte Police Department (“LPPD”) Officer B. Boles

testified that on April 3, 2010, he, based on an anonymous telephone call made

for emergency assistance, was dispatched to find a car that was driving

recklessly and “swerving in his lane” on highway 146. The caller followed the car up until Boles,

in his patrol car, made contact with the car.

Boles then matched appellant’s car to the description given by the

anonymous caller, and he followed appellant’s car into the parking lot of a

Burger King restaurant. As appellant

“circled [his car] around the building,” Boles saw the car “nearly strike the

drive-through menu,” back up, and then enter the drive-through lane. He explained that it “looked like [appellant]

had misjudged the drive-through lane and had to bring his vehicle to an

immediate stop before striking the sign.”

Boles noted that “the action of the vehicle corroborated the caller’s

information,” and he decided to “make contact” with appellant. After appellant “pulled [his car] up” to the

cashier’s window, Boles parked his patrol car parallel to appellant’s car and

approached appellant. Boles did not

activate the siren or emergency lights of his patrol car. As Boles approached appellant’s car,

appellant “looked directly” at him, “reached up to the center console [in his

car], . . . took a white Styrofoam cup, and poured the contents of that cup

into the passenger side floorboard.”

When Boles got closer, he detected the “odor of what appeared to be an

alcoholic beverage” coming from the car.

Boles then asked appellant what he poured onto the floorboard, and

appellant replied, “I don’t know what you’re talking about.” Boles then had appellant exit the drive-through

lane and park his car in order to speak with him.

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress

evidence, we apply a bifurcated standard of review. Carmouche

v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial

court’s determinations on all fact questions and on application-of-law-to-fact

questions [3]

that turn on an evaluation of credibility and demeanor. Johnson

v. State , 68 S.W.3d 644, 652 (Tex. Crim. App. 2002). We view the record and all reasonable

inferences from the record in the light most favorable to the trial court’s

ruling and sustain the ruling if it is reasonably supported by the record and

is correct under any theory of law applicable to the case. Villarreal

v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). However,

the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility. Maxwell v. State , 73

S.W.3d 278, 281 (Tex.

Crim. App. 2002) . Accordingly, the trial court may choose to

believe or to disbelieve all or any part of the witnesses’ testimony. State v. Ross , 32

S.W.3d 853, 855 (Tex. Crim. App. 2000) . When, as here, the parties do not request, and

the trial court does not make, findings of fact and conclusions of law, we view

the evidence in the light most favorable to the trial court’s ruling and assume

that the trial court made implicit findings of fact that support its ruling as

long as those findings are supported by the record. Id.

Encounter

In his first issue, appellant argues

that the trial court erred in concluding that Officer Boles’s initial approach

of his car did not constitute a seizure of him because he was not free to leave

and was thereby detained by Boles. See U.S. Const. amend. IV; Tex. Const. art. I, § 9.

The Fourth Amendment of the United States Constitution and article

I, section 9 of the Texas Constitution protect against unreasonable searches

and seizures. Atkins v. State , 882 S.W.2d 910, 912 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d). However, not every

encounter between police officers and citizens implicates constitutional

protections. Hunter v. State , 955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (citing

Florida v. Bostick , 501 U.S. 429,

434 , 111 S. Ct. 2382, 2386 (1991)). Generally,

t here are three distinct categories of

interactions between police officers and citizens: encounters, investigative

detentions, and arrests. Crain v. State , 315 S.W.3d 43, 49 (Tex.

Crim. App. 2010); State v. Perez , 85

S.W.3d 817, 819 (Tex. Crim. App. 2002).

In determining which category an interaction falls into, courts look at

the totality of the circumstances. Crain , 315 S.W.3d at 49 .

The State

asserts that Officer Boles engaged appellant in a consensual encounter by approaching

him to request his identification and ask whether he had anything illegal in

his possession. Appellant asserts that

under the circumstances, a reasonable person would not have felt free to

disregard Boles’s actions.

An encounter is a

consensual question-and-answer interaction between a citizen and a police

officer in a public place that does not require reasonable suspicion and does

not implicate constitutional rights. See

Florida v. Royer , 460 U.S. 491 ,

497–98, 103 S. Ct. 1319 , 1323–24 (1983); Perez , 85 S.W.3d at 819 . An encounter is usually a friendly

exchange of pleasantries or mutually useful information. Gaines

v. State , 99 S.W.3d 660, 666 (Tex. App.—Houston [14th Dist.] 2003, no

pet.). The encounter should be

considered consensual as “long as a reasonable person would feel free ‘to disregard

the police and go about his business.’” Hunter , 955 S.W.2d at 104 (quoting Bostick , 501 U.S. at 434 , 111 S. Ct. at

2386 ). In Hunter , the Texas Court of Criminal Appeals explained that “[a]

police officer’s asking questions and requesting consent to search do not alone

render an encounter a detention.” 955

S.W.2d at 106 . Only when an officer

conveys a message that compliance is required does a consensual encounter

become a detention. Id .

An investigative

detention occurs when an individual is encountered by a police officer, yields

to the officer’s display of authority, and is temporarily detained for purposes

of an investigation. Johnson v.

State ,

912 S.W.2d 227, 235 (Tex. Crim. App. 1995). A person yields to an officer’s display of

authority when a reasonable person would not feel free to continue walking or

otherwise terminate the encounter. Bostick , 501 U.S. at 436 , 111 S. Ct. at 2387 ; State

v. Velasquez , 994 S.W.2d 676, 679 (Tex. Crim. App.

1999); Johnson , 912 S.W.2d at

234–35. An investigative detention is

constitutionally permissible if, under the totality of the circumstances, an

officer has reasonable suspicion supported by articulable facts that the person

detained is, has been, or soon will be engaged in criminal activity. [4] Terry v. Ohio , 392 U.S. 1 , 21–22, 88 S. Ct. 1868, 1880

(1968); Ford v. State , 158 S.W.3d 488 ,

492–93 (Tex. Crim. App. 2005).

In a case similar to

the instant case, a police officer received a dispatch based on a call for emergency

assistance regarding a reckless driver. Banda v. State , 317 S.W.3d 903, 906 (Tex.

App.—Houston [14th Dist.] 2010, no pet.).

The caller then followed the reckless driver until he stopped his car in

a neighborhood. Id . The officer then

approached a group of people and asked who had been driving the car in

question. Id. at 907 . The defendant

told the officer that he had been driving, and the officer, after noticing the defendant’s

glassy eyes, administered a field sobriety test and arrested him for the

offense of driving while intoxicated. Id.

The court concluded that the initial interaction constituted a

consensual encounter as the record indicated no use of authority, a threatening

presence, a display of a weapon, or the activation of a siren or emergency

lights by the officer that would have caused the defendant to feel that he

could not refuse the officer’s initial questioning. Id.

at 909 .

Here, after receiving

an anonymous tip regarding a reckless driver, Officer Boles saw appellant

nearly strike the drive-through menu at the Burger King restaurant. Boles then parked his patrol car parallel to

appellant’s car, exited his patrol car, and approached appellant. Boles did not activate his patrol car’s siren

or emergency lights, did not use coercive language to assert authority, and did

not display his firearm or other police equipment in a fashion that would lead

appellant to believe that he was not free to leave the drive-through lane. See id .

at 909–10; cf. State v. Garcia-Cantu ,

253 S.W.3d 236 , 249–50 (Tex. Crim. App.

2008) (holding that officer’s use of spotlight, positioning of officer’s car

behind defendant’s, use of flashlight, and officer’s coercive language would

leave a reasonable person to believe that he would not be free to leave). Instead, appellant poured the contents of a

Styrofoam cup out onto the floorboard of his car as he watched Officer Boles

approach him. Accordingly, we hold that

the trial court did not abuse its discretion in concluding that the initial

contact between appellant and Officer Boles was an encounter. See Johnson , 912 S.W.2d at 235 .

We overrule appellant’s first

issue.

Reasonable Suspicion

In his second issue, appellant argues that the trial court erred in

denying his motion to suppress evidence because the State failed to prove that

Officer Boles had reasonable suspicion to detain him. See

U.S.

Const. amend. IV; Tex. Const. art. I, § 9.

A “stop” by a law enforcement officer “amounts to a

sufficient intrusion on an individual’s privacy to implicate the Fourth

Amendment’s protections.” Carmouche , 10 S.W.3d at 328 . However, it is well-established that a law

enforcement officer may stop and briefly detain a person suspected of criminal

activity on less information than is constitutionally required for probable

cause to arrest. Terry , 392 U.S. at 21 , 88 S. Ct. at

1880 ; Carmouche , 10

S.W.3d at 328 . In order to stop or

briefly detain an individual, an officer must be able to articulate something

more than an “inchoate and unparticularized suspicion or ‘hunch.’” Terry , 392 U.S. at 27 , 88 S. Ct. at 1883 . Instead, an officer must have “reasonable

suspicion” that an individual is violating the law. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when the officer

has some minimal level of objective justification for initiating the detention,

i.e., when the officer can “point to specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant

[the] intrusion.” Terry , 392 U.S. at 21 , 88 S. Ct. at

1880 ; see also Alabama v. White ,

496 U.S. 325 , 329–30, 110 S. Ct. 2412, 2416 (1990). We disregard the subjective belief of

the officer in our reasonable suspicion analysis and consider the totality of

the circumstances objectively. Ford , 158 S.W.3d at 492–93.

Reasonable

suspicion need not arise from the officer’s personal observations, but can

arise from the gathering of information from other people who witness specific

events. Garcia v. State , 296 S.W.3d 180, 185 (Tex. App.—Houston [14th

Dist.] 2009, no pet.). When gauging the

reliability of citizen-tips, the reliability of the information is judged by

the description of the wrongdoing and whether the event was witnessed

firsthand. Id. An officer generally

cannot rely only upon a police broadcast of an anonymous telephone call to

establish probable cause or reasonable suspicion. Davis

v. State , 989 S.W.2d 859 , 862 – 63 (Tex. App.—Austin 1999, pet. ref’d).

However, an anonymous tip, corroborated by the officer’s personal

observations, may be sufficient to give an officer reasonable suspicion to

detain an individual. Garcia , 296 S.W.3d at 185 (concluding

that informant who provided detailed description of defendant’s car and

swerving to police dispatcher along with officer’s observation of defendant’s

car swerving between lanes was sufficient to support finding of reasonable

suspicion).

The

Texas Court of Criminal Appeals has rejected the argument that because an

officer did not personally witness any erratic driving, there was no basis for

a reasonable suspicion to detain. Brother v. State , 166 S.W.3d 255, 256

(Tex. Crim. App. 2005). In Brother , a citizen reported to a police

dispatcher that he saw a car speeding, tailgating, and weaving through traffic. Id.

at 256 . The citizen then followed the

car, and, while remaining on the telephone call with the dispatcher, provided a

detailed description of the car and its location. Id.

at 256 – 57. The court concluded that “the factual basis

for stopping a vehicle need not arise from the officer’s personal observation,

but may be supplied by information acquired from another person.” Id.

at 257 . The court further noted that “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.” Id.

at 259.

Here,

Officer Boles received a dispatch in regard to the anonymous caller’s description

of appellant’s car as swerving in a fashion that caused concern. The caller then provided a detailed and

accurate description of the car and its location, allowing Boles to properly

identify the car in question.

Furthermore, the caller followed the appellant’s car until Boles arrived

on the scene. Boles then saw appellant

nearly run into the drive-through menu at the Burger King restaurant and drive

on the wrong side of the drive-through lane.

When he initially approached appellant’s car, Boles saw appellant pour

liquid out of a Styrofoam cup onto the floorboard of his car. When he reached appellant’s car, Boles

detected an odor of alcohol in the car.

We conclude that Officer Boles’s observations of appellant’s actions in

the drive-through lane, coupled with the information obtained from the

anonymous caller, were sufficient to give Boles reasonable suspicion that

appellant had been driving while intoxicated.

Accordingly, we hold that the trial court did not err in denying

appellant’s motion to suppress evidence.

We overrule appellant’s second

issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. § 49.04

(Vernon 2009).

[2] See

U.S. Const. amend. IV; see also Tex. Const. art. I, § 9.

[3]

These are also referred to as

“mixed questions of law and fact.” Guzman v. State , 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997).

[4]

Texas courts follow the federal Terry standard with respect to temporary

investigative detentions, and the Texas Court of Criminal Appeals has found no

reason to employ a more stringent standard under the Texas Constitution with

respect to such detentions. Davis v. State , 829 S.W.2d 218, 219

(Tex. Crim. App. 1992).