holding that defendant was not in custody even though the investigating officer took the defendant’s car keys before asking the defendant questions to investigate a possible driving while intoxicated offense
How later courts described this case
- holding that defendant was not in custody even though the investigating officer took the defendant’s car keys before asking the defendant questions to investigate a possible driving while intoxicated offense
- holding that the existence of probable cause or reasonable suspicion is not dependent solely upon the information known to the detaining officer but rather the cumulative knowledge of those officers involved
- applying the constitutional error harm standard of rule 44.2(a) to decide that there was no harm from a violation of a defendant’s right to receive Miranda warnings and declining to conduct a separate analysis of harm, relating to a violation of article 38.22, under rule 44.2(b)’s nonconstitutional error standard
- applying Rule 44.2(a) in determining that there was no harm from a violation of a defendant’s right to receive Miranda warnings and declining to conduct a separate analysis of harm, relating to a violation of article 38.22, under Rule 44.2(b)
Written by the judges who cited it.
The opinion
LEE ANN DAUPHINOT, Justice,
concurring.
I concur in the majority’s thoughtful and well reasoned opinion. A new folk myth appears to have developed among law enforcement officers, judges, and lawyers that driving while intoxicated (DWI) is an exception to the protections of the Fourth and Fifth Amendments to the Constitution of the United States and to the protections of the comparable portions of our state constitution and code of criminal procedure. I write separately to point out the confusion that has arisen in our law regarding what the holding in Miranda v. Arizona 1 means.
[T]he prosecution may not use statements, whether exculpatory or in-culpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. *240 By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 2
In Hiibel v. Sixth Judicial Dist. Court 3 the United States Supreme Court clarified the parameters of the investigative detention and interrogation. In an analysis similar to that employed in Crawford v. Washington, 4 the Court concentrated on whether the questioning during an investigative detention was testimonial:
To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.
.... “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in [U.S. v.] Hubbell, [ 530 U.S. 27 , 120 S.Ct. 2087 , 147 L.Ed.2d 24 (2000) ] acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].”
[[Image here]]
As we stated in Kastigar v. United States, [ 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972) ] the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” 5
The three prongs of the test to trigger the Fifth Amendment, then, are that the statement is testimonial, incriminating, and compelled. The Miranda court held that a statement is compelled when it is in response to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 6
Based on Sergeant Pollens testimony, he had probable cause to arrest Appellant Trent Michael Campbell for reckless driving or a traffic violation. As the majority so cogently points out, when Officer Al-dridge walked up to Appellant who was sleeping, Aldridge had probable cause to arrest Appellant for public intoxication. Any claim that further investigation was necessary regarding the reckless driving is specious. Appellant was finished driving for the night. When Appellant attempted to reach for the keys in the ignition, the officer took the keys away and told him to get out of the car. Not only should it have been clear to Appellant that his movements were restricted to those permitted by the police officers, had he tried to leave, he would have been guilty of a criminal offense.
Section 38.04 of the penal code provides that a person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or even merely to detain him. 7 In *241 Texas and under the mandate of section 38.04, a person whom a police officer decides to detain is never free to leave. No matter how temporary the detention, that person is not free to leave until the officer decides to allow him to leave. Clearly, when a peace officer in Texas decides to detain a person, that person has been “deprived of his freedom of action in [a] significant way,” 8 and to attempt to do anything other than submit to the officer’s show of authority constitutes a crime punishable by incarceration. As I have stated elsewhere,
Although courts speak of a person’s being free to leave when a police officer approaches him, courts also hold fairly regularly that walking or running away when an officer approaches provides reasonable suspicion for the officer to detain the person. It is, indeed, a lose, lose situation for any person a police officer wants to speak to. He is free to leave, unless he leaves. 9
To claim that Appellant was free to leave after the police cars converged on the scene would be a fiction totally unsupported by the record. And as the majority so astutely notes, Appellant was going to jail for something. The only question was what.
Courts and lawyers and commentators have spent years trying to construe exactly what the Miranda court meant by
[T]he prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 10
Perhaps it is time to conclude that sometimes courts mean exactly what they say: the prosecution may not use any statement stemming from questioning initiated by law enforcement officers when a person is not free to walk, or to run, or to drive away, unless the person has been warned on the spot that he does not have to answer the questions, can have a lawyer present to give him advice, even if he is so poor that the government has to pay for the lawyer, and that he can stop answering questions anytime he decides to stop.
Maybe the Miranda court meant just exactly what they said. And under Texas law, a person must be warned anytime the police detain him and start asking questions because that person is never free to leave. And if he had been free to leave, deciding to walk away would have put an end to that freedom.
Because in the case before us the officer candidly admitted that he believed DWI, public intoxication, and minor in possession offenses to be exceptions to the mandates of the prohibitions against self-incrimination, and because he acted accordingly, the trial court should have suppressed the statements that were testimonial and incriminating (although the Miranda court specifically referred to both inculpatory and exculpatory statements). 11 But be *242 cause the remaining evidence of guilt is both overwhelming and untainted by the improperly admitted statements, I join the majority’s conscientiously accurate and legally sound opinion.
. 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
. Id. at 444 , 86 S.Ct. at 1612 (emphasis added).
. 542 U.S. 177 , 124 S.Ct. 2451 , 159 L.Ed.2d 292 (2004).
. 541 U.S. 36, 38 , 124 S.Ct. 1354, 1357 , 158 L.Ed.2d 177 (2004).
. Hiibel, 542 U.S. at 189-90 , 124 S.Ct. at 2460 (citations omitted).
. 384 U.S. at 444 , 86 S.Ct. at 1612 .
. Tex. Penal Code Ann. § 38.04 (Vernon Supp. 2009).
. 384 U.S. at 444 , 86 S.Ct. at 1612 (emphasis added).
. State v. Woodard, 314 S.W.3d 86, 103 (Tex.App.-Fort Worth 2010, pet. filed) (Dauphinot, J., dissenting).
. 384 U.S. at 444 , 86 S.Ct. at 1612 (emphasis added).
. See id.