An Appeal of an Order Granting a Motion to by kmw34260

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									                              No. 10-08-00042-CR

______________________________________________________________________________

                      IN THE TENTH COURT OF APPEALS
                           SITTING WACO, TEXAS

______________________________________________________________________________

                        THE STATE OF TEXAS, Appellant

                                      V.

                       BOBBY WAYNE O’NEAL, Appellee

______________________________________________________________________________

           An Appeal of an Order Granting a Motion to Suppress
                 Trial court Number No. 2007-3613- CR1
                      From the County Court at Law
                       of McLennan, County, Texas
                    The Hon. Mike Freeman, Presiding
__________________________________________________________________

                            APPELLEE’S BRIEF


                                    Tom L. Ragland
                                    SBN 16471000
                                    801 Washington Ave., Ste. 217
                                    Waco, TX 76701-1281
                                    Phone: 254-753-0233
                                    FAX: 254-753-0244

                                    Attorney for Bobby Wayne O’Neal
                                    Appellee

                        ORAL ARGUMENT REQUESTED
                               ORAL ARGUMENT REQUESTED

        The proper disposition of this case will require the interpretation and application of the
Fourth and Fourteenth Amendments to the Constitution of the United States of America, Article
I, Section 9 of the Texas Constitution as well as Chapter 543, Texas Transportation Code
generally and §§543.003 - 543.007 in particular and applicable statutes and case law dealing with
warrantless arrests.
        Oral argument should be helpful to the Court in reaching the proper disposition of this
case.




                                                  i
               IDENTITY OF PARTIES AND COUNSEL


The State has properly identified the parties and counsel.




                                         ii
                                            TABLE OF CONTENTS


ORAL ARGUMENT REQUESTED ............................................................................I
IDENTITY OF PARTIES AND COUNSEL................................................................ii
TABLE OF CONTENTS .......................................................................................iii, iv
INDEX OF AUTHORITIES ...................................................................................iv, v
STATEMENT OF THE CASE ....................................................................................1
REPLY POINTS ..........................................................................................................2
STATEMENTS OF FACT ..................................................................................3, 4, 5
SUMMARY OF THE ARGUMENT .......................................................................6, 7
STANDARD OF REVIEW ......................................................................................7, 8
ARGUMENT AND AUTHORITIES ..........................................................................8
         1. The odor of alcohol alone will not support a finding of reasonable
         suspicion or probable cause. ............................................................................9


         2. Reasonable suspicion for speeding traffic violation not transferrable to
         DWI investigation. ..........................................................................................10


         3. Speeding is not an offense which authorizes an officer to arrest a
         driver. ..............................................................................................................11


         4. Speeding, the sole reason for the traffic stop in this case, was
          abandoned. .....................................................................................................16


         5. Speeding is not evidence of Driving While Intoxicated. ..........................17

                                                                 iii
EXCERPTS FROM DAVIS S. STATE ......................................................................18
CONCLUSION ............................................................................................................19
PRAYER ......................................................................................................................20
CERTIFICATE OF SERVICE ....................................................................................20
APPENDIX


                                             INDEX OF AUTHORITIES
Cases                                                                                                                     Page(s)


Amador v. State, 242 S.W.3d 95, 101 (Tex. App. Beaumont 2007) on Remand, 221
          SW3d 666 (Tex. Crim. App -2007) ...........................................................................10
Christine v. State, 592 S.W. 2d 625, (Tex. Cr. App. 1980) ...................................................14
Davis v. State, 947 S.W. 2d 240, 242 (Tex Crim. App. 1997)..........................................15, 18
Delgado v. State, No. 10-07-0007 (Tex. App. -Waco April 16,2008).....................................7
Domingo v. State, 82 S.W. 3d 617 (Tex. App. Amarillo, 2002).........................................9, 14,
Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319 (1983)..........................................11, 16
Guzman v. State, 955 SW2d 85, 89 (Tex. Crim. App 1997)....................................................7
Howell v. State, 175 SW3d 786, 792, (Tex Crim. App. 1990) ................................................7
Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, (1998).........................................................12
Montgomery v. State, 170 S,W,2d 750, 752 (Tex Crim. App. 1943).....................................12
Montgomery v. State, 810 SW2d 372, 380 (Tex Crim App 1990) ..........................................7
Ohio v. Robinette, 519 U.S. 33, 41, 117 S. Ct. 417 ( 1996) ...................................................16
Pennsylvania v. Mimms, 434 U.s. 106; 98 S, Ct. 330 ( 1977) ...............................................17
Sedani v. State, 848 S. W.2d 378, 380 (Tex. Cr. App.1975)..................................................12
State v. Aviles, No. 10-07-00371-CR, Tex App.-Waco, April 16, 2008 (Not Designated For
          Publication ) ................................................................................................................7
State v. Ballard, 987 SW2d 889,891 (Tex. Crim. App. 1997) .....................................8
State v. Dixon, 206 SW3d 587,590 ( Tex. Crim. App. 2006) ......................................7
State v. Thirty Thousand Six Hundred Sixty Dollars & no /100, 136 S.W.3d 392,403,

                                                                      iv
Tex. App.-Corpus Christi (2004)................................................................................11
Terry v. Ohio, 329 U.S. 1; 88 S. Ct. 1868 (1986) .......................................................10
Texas Commerce Bank N.A. v. Frizzle, 96 S.W.3d 240, 250 ( Tex 2007) ..................11
Texas Department of Public Safety v. Rodriguez, 953 S.W. 362 , 364, Tex. App.-
        Austin (1997) ...................................................................................................11
Torres v. State, 518 S.W.2d 378, 380 (Tex. Crim. App.1975) ...................................12
Wolf v. State, 137 SW3d 797, (Tex -App. - Waco 2004, no pet.)..................................7


                                                 OTHERS
TEXAS CONSTITUTION
        Art. I § 9 ....................................................................................................12, 18
TEXAS TRANSPORTATION CODE
        §543.004 - 543.006 ...............................................................................2, 7, 8,14
        §545.351 ...........................................................................................................6
        §545.352 ...........................................................................................................6
        §543.005 .............................................................................................11, 13, 15
        §543.004 ...................................................................................................11, 13
        §543.002 .........................................................................................................12
        §543.003-543.007 ...........................................................................................12
        §543.008 ..........................................................................................................13
        Chapter 543................................................................................................11, 20
TEXAS PENAL CODE
        Article 49.01 ....................................................................................................9
        Article 49.02 ....................................................................................................9
        Article 49.04 ................................................................................................6, 9




                                                                v
                       STATEMENT OF THE CASE


Appellant’s Statement of the Case is essentially correct.




                                         1
                                      REPLY POINTS


                                       REPLY POINT ONE
                              (In response to Appellant’s Point one)


The arresting officer articulated no objective facts to establish reasonable suspicion required to
extend the traffic stop of Appellee beyond a reasonable time necessary to issue him a citation
(ticket), or notice of warning, in compliance with the mandatory provisions of §§ 543.004-
543.006 of the Texas Transportation Code. Thus the Trial Judge did not abuse his discretion in
granting the motion to suppress.


                                      REPLY POINT TWO
Having failed to articulate objective facts to establish reasonable suspicion required to extend the
traffic stop of Appellee beyond a reasonable time necessary to issue him a citation (ticket), or
notice of warning, in compliance with §§543.004-543-006 of the Texas Transportation Code, the
arresting officer violated the rights guaranteed Appellee by the Fourth and Fourteenth
Amendments to the Constitution of the United States.


                                     REPLY POINT THREE
Having failed to articulate objective facts to establish reasonable suspicion required to extend the
traffic stop of Appellee beyond a reasonable time necessary to issue him a citation (ticket), or
notice of warning, in compliance with §§543.004-543-006 of the Texas Transportation Code, the
arresting officer violated the rights guaranteed Appellee by Article 1, section 9 of the Texas
Constitution.

                                                 2
                                 STATEMENT OF FACTS
       Bobby Wayne O’Neal was forty-nine years of age the time of his arrest without a warrant
on May 13, 2007. He held a valid Texas Commercial Drivers License which also authorized him
to operate a “Tank vehicle & Hazardous materials.” Defendant’s Exhibit MS 1. He was
operating his personal pickup truck at the time of his arrest. (4-RR 7-1).
       The arresting officer testified that he stopped O’Neal for exceeding the posted speed
limit. (4-RR 6). Before making the traffic stop for speeding he activated his on-board video
equipment for about 300 yards before O’Neal found a place to pull over out of the traffic. (4-RR
12). The video tape would show “exactly what [he] testified about” at the hearing on the motion
to suppress. (4-RR 12 - 15). The State did not offer the video into evidence and refused to
produce it at the hearing for O’Neal to place it in evidence. (4-RR 13;35-25 through 40). He
made no complaint about O’Neal’s driving except for the alleged “speeding” offense.( 4-RR 14).
The arresting officer could not remember if O’Neal activated his turn signal when he pulled over,
but testified “I’m sure if I looked at the video I could tell”. ( 4-RR 14-25, 15-2).
       After O’Neal stopped his vehicle, the arresting officer walked to the passenger side of his
pickup truck and was “pretty sure” he tapped on the window glass of the truck and “he
believe[d]” that O’Neal rolled the glass down at which time he told O’Neal that he was stopping
him for exceeding the speed limit. (4- RR16).
       He then asked for O’Neal’s driver’s license and insurance papers. He believed that
O’Neal immediately handed them to him (I’m assuming he did. Of course, looking at the
video—If he did, you know, “once I do look at the video, I can see”. ( Emphasis supplied ) Both
documents were in order. (4-RR 16, 17). He claimed to have detected the odor of an alcoholic
beverage while examining the driver’s license and insurance papers. (4-RR 7).


                                                  3
       He did not charge O’Neal with exceeding the speed limit, but claimed to have given him
a warning. Neither he or the State’s attorney could find a copy of the warning citation or ticket.
(4-RR 19,20).
       Once the arresting officer detected the odor of an alcoholic beverage he immediately went
from a speeding ticket mode to a DWI investigation mode and decided to subject O’Neal to a
field sobriety test. There was no reason for his decision to subject O’Neal to such test except the
odor of alcohol.( 4-RR 9) (Direct Examination). His testimony on cross-examination revealed
that he abandoned the charge of speeding upon smelling an alcohol beverage.
                                   * * ** * * * * * * *
       Q. Mr. Perez, when you walked from the passenger side around to the
       driver’s side, the only thing that you had on your mind that constituted
       reasonable suspicion for testing this man on DWI was the smell of alcohol
       from the interior of the cab of the truck; wasn’t it?

       A. Yes, sir.

       Q. That’s the only thing.

       A. Yes, sir.

       Q. And when you smelled the alcohol, you abandoned the speeding allegation;
       didn’t you?

       A. No, sir.

       Q. Well, you didn’t charge him with speeding.

       A. Well, I didn’t charge, him, no sir.

       Q. And the reason you didn’t charge him is because you knew under the law
       if you did charge him you would have to release him unless he - - - you would
       have had to release him if he signed a promise to appear. You knew that
       didn’t you?

      A. Yes. If I was going to write him a citation yes, sir.

      Q. And you didn’t want to release him, so you just abandoned that cause and moved
      directly in - - - told hm to get out and let’s go do a field sobriety test; didn’t you?

      A. Once I smelled the alcohol, yes, sir. (RR 25,26) (Emphasis supplied)

                                     **********

                                                4
       Q. You smelled alcohol and at that time you decided that you were going to
       subject him to a field sobriety test; didn’t you?

       A. Yes. Once I smelled the alcohol, yes, sir. Asked him to step out of the vehicle.
       (RR 27). (Emphasis supplied)

       From the passenger side of the Defendant’s vehicle , Trooper Perez asked Defendant for
his drivers license and insurance papers, which were given to him in a reasonable amount of time.
(Finding of Fact no. 11).


       The trooper wrote a “warning” citation for speeding. (Finding of Fact no. 12)
       When the trooper smelled the odor of an alcoholic beverage, prior to collecting any
additional information he decided to issue a warning violation for speeding. (Finding fo Fact
no. 13.)
           The trooper told the Defendant of get out of his vehicle in order to conduct field sobriety
tests. (Finding of Fact no. 14).
       On the occasion in question the trooper did not have a warrant for the arrest of the
Defendant. (Finding of Fact no. 15).
       Once he told the Defendant to exit his vehicle, the trooper observed what was possibly
some staggering or strange walking by Defendant as Defendant walked to the rear of his vehicle.
Finding of Fact no. 16.
       Trooper Perez testified “He kind of - - Of course, just the way he was - - It didn’t appear
he was walking - - kind of looked like he was walking - - maybe a little staggering.” (RR 10).
(Emphasis supplied.)




                                                    5
                          SUMMARY OF THE ARGUMENT

       O’Neal was arrested for driving a motor vehicle while “intoxicated by not having the
normal use of mental or physical faculties by reason of the introduction of alcohol into the body”
(CR1), also known as Driving While Intoxicated and commonly referred to as “DWI”, in violation
of Article 49.04, Texas Penal Code.
       At the hearing on Appellee’s Motion to Suppress, (CR 8), and his Supplemental Motion to
Suppress Evidence, (CR 42), the State had the burden of proof to establish by a preponderance of
the evidence that the arresting officer had probable cause to make the arrest without a warrant.
The State failed to meet its burden of proof and the trial judge granted the motion and suppressed
all evidence except that evidence dealing with the traffic offence of “speeding”.
       Appellee contends that the trial judge did not abuse his discretion in granting the motion to
suppress because the State failed to prove that the arresting officer had reasonable suspicion to
believe that a crime for which Appellee could be arrested without a warrant had been or was
about to be committed by him.
       A Texas driver may not be arrested for the offense of speeding if he or she signs a citation
form promising to appear at the time and place stated thereon. The arresting officer
acknowledged that in his testimony. He also acknowledged that he abandoned the speeding
offense claim because he wanted to extend the detention for the speeding stop to include a DWI
investigation. He testified that he gave Appellee a “warning” about speeding, but no citation.
       The only reason (fact) the arresting officer gave at the hearing for wanting to extend the


                                                 6
traffic stop to include a DWI investigation was that he smelled the odor of an alcoholic beverage
coming for Appellee’s pickup truck. He did not testify that Appellee’s driving was erratic or
posed a hazard to others on the roadway. He did not testify that Appellee was rude, discourteous,
uncooperative or combative at any time during the traffic stop or during the illegal detention. He
did not testify that the alleged speed of Appellee was not reasonable and prudent under the
circumstances immediately before Appellee’s arrest, which is the standard for excessive speed
established by the legislature. §545.351, Texas Transportation Code. Exceeding the posted speed
limit is not a crime in itself. A properly posted speed limit merely creates a rebuttable
presumption that a speed in excess of the posted speed is unreasonable. §545.352, Texas
Transportation Code. But Appellee was denied the right to rebut that presumption.
         Having failed to articulate objective facts to establish reasonable suspicion to extend the
traffic stop of Appellee beyond a reasonable time necessary to issue him a citation (ticket), or
notice of warning, in compliance with §§543.004-543-006 of the Texas Transportation Code, the
arresting officer failed to establish a crucial element of probable cause for a warrantless arrest.
         Appellee contends that considering the totality of the circumstances surrounding the
warrantless arrest on May 13, 2007 the arresting officer violated the rights guaranteed him by the
Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, §9 of
the Texas Constitution and the trial judge did not abuse his discretion in granting the motion to
suppress.
                                    STANDARD OF REVIEW
         On appeal the trial judge’s ruling on a motion to suppress evidence is reviewed by the
abuse of discretion rule. State v. Aviles, No. 10-07-00371- CR, Tex. App. - Waco, April 9, 2008
(Not Designated For Publication), citing State v. Dixon, 206 SW3d 587, 590 (Tex. Crim. App.
2006).
         The test for abuse of discretion “is not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court’s action; rather, it is a question of whether
the trial court acted without reference to any guiding rules or principles, and the fact that a trial
court may decide a matter within its discretionary authority differently than an appellate court
does not demonstrate such an abuse.” Delgado v. State, No. 10-07-0007,( Tex. App. - Waco,
April 16, 2008 ) (Not Designated for Publication), quoting Howell v. State, 175 SW3d 786,792
(Tex. Crim. App 2005) and citing Montgomery v. State, 810 SW2d 372, 380 (Tex. Crim. App.


                                                   7
1990) (op. orig. submission).
        Texas appellate courts give almost total deference to the trial court’s determination of
historical fact. Because the Fourth Amendment is applicable to the states through the Fourteenth
Amendment, both state and federal case law is considered in the analysis. If the facts are not
disputed, as here, the review is limited to the application of law to facts. Wolf v. State, 137 SW3d
797, (Tex - App.- Waco 2004, no pet.) and the same amount of deference should be afforded to
the trial court’s rulings on the application of law to the facts if the resolution of those ultimate
questions turn on an evaluation of the credibility and demeanor of the witnesses. Guzman v. State,
955 SW2d 85,89 (Tex. Crim. App. 1997)
        In reviewing the trial court’s decision on a motion to suppress evidence the evidence
received by the trial court is viewed by the appellate court in the light most favorable to the trial
court’s ruling. State v. Ballard, 987 SW2d 889,891 (Tex. Crim. App. - 1999).


                          ARGUMENT AND AUTHORITIES
                                         REPLY POINT ONE
                                (In response to Appellant’s Point one)
                                              (Re-stated)


The arresting officer articulated no objective facts to establish reasonable suspicion required to
extend the traffic stop of Appellee beyond a reasonable time necessary to issue him a citation
(ticket), or notice of warning, in compliance with the mandatory provisions of §§ 543.004-
543.006 of the Texas Transportation Code. Thus the Trial Judge did not abuse his discretion in
granting the motion to suppress the evidence.
        A review of the Reporters Record reveals that about the only thing about which the
arresting officer was certain was that when he smelled the odor of an alcoholic beverage from
the cab of O’NEAL’s pickup truck he abandoned the alleged speeding violation and
immediately went into a DWI investigative mode. His testimony is copied above under the
STATEMENT OF FACTS and will not be repeated here. The trial court included the following
in his CONCLUSIONS OF LAW:
        2. Once Defendant was stopped, the trooper needed additional reasonable suspicion or
probable cause, beyond the speeding violation, to conduct a DWI investigation.

                                                   8
       3. It is not a criminal offense for an adult to consume alcoholic beverages in Texas,
subject to reasonable regulation.
       4. The “strong odor” of an alcoholic beverage coming from inside a vehicle does not
provide sufficient evidence to raise a reasonable suspicion to detain and investigate whether that
person had committed the offense of Driving While Intoxicated.
       5. The trooper abandoned the reason for the initial response, speeding, in order to
conduct field sobriety tests as soon as he smelled the odor of alcohol, while there was
insufficient reasonable suspicion before telling the Defendant to exit the vehicle.
       7. Trooper Perez failed to articulate additional facts sufficiently to require Defendant’s
further detention. ( Findings of Fact and Conclusions of Law, CR 108)
       The trial judge granted O’Neal’s motion and suppressed all evidence gathered by the
arresting officer after he smelled the odor of an alcoholic beverage inside his pickup truck.
(CR 75) , and he did not abuse his discretion in so doing.
        The odor of alcohol alone will not support a finding of reasonable suspicion or
probable cause.
       The National Highway Traffic Safety Administration’s DWI Detection and Standardized
Testing, August, 2006, Exhibit MS2, is considered the “Bible” for DWI investigations (4-RR 30)
which the arresting officer read in school and still “looks at” as a reference tool. (4-RR 31).
That publication of a federal agency classifies “Odor of alcoholic beverage from the driver” as a
mere suggestion or hint of impairment, but certainly not intoxication, (App 1 page V-7) ,which
does not rise to the level of reasonable suspicion that a crime had been committed. Nor would
such odor justify the extended detention of appellee because it is not unlawful to smell like
alcohol. Neither is the odor of alcohol beverage alone enough to support a finding of
reasonable suspicion or probable cause for the offense of Driving While Intoxicated.
Domingo v. State, 82 S.W.3d 617 (Tex. App–Amarillo, 2002) .
       In Domingo the arresting officer saw a group of men in an area that had a reputation
for criminal activities. He approached Domingo to talk to him. He did not see any criminal
activities nor did he see Domingo drink any alcoholic beverage, but did detect a “strong” odor
of alcohol on his breath. He decided to investigate Domingo for “public intoxication”. (The
definition of intoxication, § 49.01, Penal Code , (App. 2 ) applies to the offense of Public
Intoxication, § 49.02 and Driving While Intoxicated, § 49.04, Penal Code). When the arresting

                                                 9
officer asked Domingo his name he gave him a name which later proved to be false. The police
took Domingo to the police station where they learned his true name and learned that he had
outstanding warrants for his arrest. The police arrested him on the outstanding warrants and
charged him with giving a false name.
       Domingo then filed a motion to suppress evidence obtained as a result of his detention for
investigation for public intoxication on the grounds that his detention was in violation of his 4th
Amendment rights, which motion was denied by the trial judge. The Amarillo Court of Appeals
held that [‘***we do not find articulable facts which could have led a reasonable officer to
suspect [Domingo] of public intoxication other than the strong odor of alcohol about which
[the arresting officer] testified and on which he based his opinion,” and “*** so long as
consumption of alcohol is not illegal in and of itself, a standard permitting or requiring
detention and investigation of persons for public intoxication based solely on whether the odor
of alcohol on a person’s breath is “strong”, “moderate”, or “weak” or some other
classification invites unwarranted police intrusion into the affairs and freedom of persons”,
citing Terry v. Ohio ,392 U.S. 1; 88 S. Ct. 1868 (1968).
       The observations of Amarillo Court of Appeals in Domingo were cited with approval
in Amador v. State, 242 SW3d 95,101, (Tex. App. - Beaumont, 2007) on Remand, 221
SW3d 666 (Tex. Crim. App - 2007). The Beaumont Court appears to have given great
weight to the testimony of the DPS Trooper in that case in which “— she agreed that the
odor of alcohol is not indicative of intoxication” in a DWI case.The court of appeals held that the
evidence was inadmissible and reversed the trial court.
       The evidence is undisputed that the only reason the arresting officer abandoned the
speeding allegation and began the DWI investigation was the odor of alcohol inside
O’Neal’s pickup truck.
                                     ********
               Q. —the only thing that you had on had on your mind that constituted
reasonable suspicion for testing this man for DWI was the smell of alcohol from the
interior of the cab of the truck: wasn’t it?
               A. Yes, sir.
               Q. That’s the only thing.
               A. Yes, sir. (4-RR 25)


                                                 10
                                     ********
       The odor of alcohol at the time of a traffic stop is not sufficient evidence to
constitute a new “reasonable suspicion” that will justify extending the initial detention
for investigation of a non-existent crime.
Reasonable suspicion for speeding traffic violation not transferrable to DWI
investigation.
        Although the arresting officer may have had reasonable suspicion to stop appellee
for speeding, he had no legal authority to detain and arrest him for that offense unless
appellant refused to sign a promise to appear. His only options were: (1) release
appellant without a citation, (2) release him with warning, or (3) issue him a citation with
a promise to appear at a specified time and place and “promptly release him from
custody.” § 543.005, Texas Transportation Code. The reasonable suspicion of speeding,
if any, is not transferable to the subsequent allegation of Driving While Intoxicated. The
“stop”, if justified, could not exceed the time necessary to issue O’Neal a citation (ticket)
or warning for speeding. Texas Department of Public Safety v. Rodriguez, 953 S. W.362.
364, Tex. App.-Austin (1997) [Here the justified “stop” was in regard to Rodriguez’s
speeding violation. Absent additional evidence, there was no justification for any “stop”
that exceeded what was necessary to ticket Rodriguez for speeding.] O’Neal was stopped
for speeding, but that claim was quickly abandoned by the officer without giving O’Neal
a ticket or warning and releasing him as required by law. Thus, the subsequent field
sobriety tests, which resulted in hearsay evidence based on subjective conclusions of the
officer, were illegal and cannot be used to create a new “reasonable suspicion” element
of the required probable cause for a warrantless arrest. State v. Thirty Thousand Six
Hundred Sixty Dollars and no/100, 136 S.W. 3d 392,403, Tex App.-Corpus Christi
(2004) [We will not allow the State to benefit from its unreasonable invasion of privacy
by relying on circumstances uncovered by illegal police conduct to create a new
reasonable suspicion.], relying on Florida v. Royer, 460 U.S. 491,500, 103 S. Ct. 1319
(1983). [“–an investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop”.] The claimed “reasonable suspicion”
for O’Neal’s stop was speeding and that reasonable suspicion evaporated when the
officer abandoned the issue.


                                                 11
3. Speeding is not an offense which authorizes an officer to arrest a driver.
        Reasonable suspicion to stop a driver for speeding cannot, under the controlling
law of this case, be transferred to a predicate for establishing probable cause for an arrest
for the offense of Driving While Intoxicated.
       Chapter 543, Texas Transportation Code, (App. 3 ) governs the procedures which
must be followed by a police officer when making a traffic stop for “speeding.” When
enacted by the legislature Chapter 543 of the Transportation Code became the public
policy of the State of Texas. Texas Commerce Bank, N.A. vs. Grizzle, 96 S.W.3d 240,
250 (Tex. 2002). [Public policy in this state is reflected in the statutes enacted by the
legislature.] § 543.004 requires the arresting officer to offer to the driver an opportunity
to sign a “promise to appear,”then “promptly release the person from custody” unless the
driver refuses to sign the Promise to Appear which is mandatory. If the driver
refuses to sign the promise, he “shall be taken immediately before a magistrate.”
§ 543.002 (b). See also, Torres v. State, 518 S.W.2d 378,380 (Tex. Cr. App. 1975).
[Except for the offense of speeding, an officer may arrest and take into custody one seen
committing a traffic offense.]
       An officer who violates §§ 543.003-543.007 is guilty of misconduct in office and
may be removed from his position. § 543.008. The provision for such sanctions makes
the procedure mandatory, Sedani v. State, 848 S.W.2d 314, 318 (Tex. App-Houston, pet.
ref’d,, 2003).
       The provisions of §§ 543.003-543.007 are not of recent origin. They have existed
since 1923. Montgomery v. State, 170 S.W.2d 750, 752, (Tex. Crim. App., 1943). In
Montgomery the appellant was a law officer who arrested a driver for “speeding” and
failed to offer him an opportunity to sign a citation and Promise to Appear in lieu of
appearing before a magistrate. The driver made a complaint against the officer, who
was then indicted for False Imprisonment, tried and convicted and the conviction was
affirmed by the Texas Court of Criminal Appeals. Thus, the public policy of the state
represented by §§543.003 -543.007 is mandatory.
       The United States Supreme Court has decided a case very similar to the one before
this court.
       In the case of Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484 (1998), the facts are


                                                 12
similar to the facts in the case before the court and it is controlling with regard to the
Defendant’s 4th Amendment complaint and, by implication, his claim regarding his rights
under Art. I, §9 of the Texas Constitution, because the two provisions are similar in
verbiage and purpose: to prevent unreasonable searches, seizures and arrests without a
warrant and the suppression of evidence obtained contrary to the provisions of either.
The opinion in Knowles is very short and a copy appears at (App. 4 ).
       In Knowles the defendant was stopped by a policeman for driving 43 mph in a
25 mph zone. Iowa law permitted the policeman to either arrest the defendant or issue a
citation to appear in court at a specified time. He chose to issue a citation rather than
arrest him, following which the policeman conducted a full search of the car and found
marijuana and a “pot pipe”. He was arrested for possession of a controlled substance.
                Knowles contended in the Iowa courts that “because the officer had no
probable cause and no search warrant, --- the search cannot otherwise be justified under
the Fourth Amendment, [and] the search of the car was unconstitutional”. Knowles at
487.
       The Iowa Supreme Court had upheld the constitutionality of the search because
“so long as the arresting officer had probable cause to make a custodial arrest, there
need not in fact have been a custodial arrest.” Knowles at 487. The U.S. Supreme
Court identified the issue as follows: “whether the search at issue, authorized as it was
by state law, nonetheless violates the Fourth Amendment”. (emphasis supplied). The
Supreme Court concluded that it did and reversed the Iowa Supreme Court. Knowles at
487.
       In the process of reversing the Iowa Supreme Court the U.S. Supreme Court
discussed the “search incident to arrest” exception recognized for a warrantless arrest and
search and found that those exceptions did not apply to the case. Nor do they apply
in this case.
       It is significant to note the similarities and differences between the two cases. The
applicable Iowa statute provided that the issuance of a citation in lieu of an arrest “does
not affect the officer’s authority to conduct an otherwise lawful search”. Knowles at
487. It was the latter provision upon which the state of Iowa relied to justify the full
blown search in Knowles. On the other hand, the applicable Texas statute, § 543.004,


                                                  13
Texas Transportation Code, mandates that the defendant be offered an opportunity to
sign a written promise to appear (a citation) if the alleged offense is speeding or
violation of the open container law. An arrest can be made only if the defendant refuses
the offer. If the citation is signed, “The officer shall then promptly release the person
from custody.” (emphasis supplied). § 543.005 Transportation Code. If the arresting
officer fails to follow the mandate of the code his/her actions constitutes “misconduct in
office and the officer is subject to removal from the officer’s position”. § 543.008.
       The arresting officer in this case stopped O’Neal for “speeding”. At that time the
officer had two options:(1) give O’Neal a warning citation or (2) give him an
opportunity to sign a “Promise to Appear” (citation) for speeding and “promptly release
him from custody” if he signed it, pursuant §543.005. The officer could not arrest
O’Neal for the offense of speeding unless he refused to sign the citation, so he chose
option 1.The arresting officer was fully aware of the provision of §543.004-543-006 of the Texas
Transportation Code but nevertheless intentionally and knowingly ignored the mandatory
provisions of the public policy of the State of Texas. He testified thusly:
                                    ****
       Q. Well, you didn’t charge him with speeding
       A. Well, I didn’t charge him, no, sir
       Q. And the reason you didn’t charge him is because you knew under the law you if you did
charge him you would have to release him unless he - you would have had to release him if he
signed a promise to appear. You knew that; didn’t you.
       A. Yes. If I was going to write him a citation, yes , sir (4 RR 26)
No articulated facts to justify O’Neal’s removal from his truck.
       The arresting officer articulated no facts to justify his removal of O’Neal from his
vehicle. The only reason given for his removal was the officer’s claim that he detected a
strong odor of an alcoholic beverage from the passenger side of O’Neal’s vehicle. (4
RR 26.) He did not express fear for his safety. He did not see contraband in plain view
in the truck. He did not fear that O’Neal possessed a weapon. There was no evidence of
speeding, which could have been destroyed, to be found inside the truck. His sole
reason for removing O’Neal from the truck was that he smelled an alcoholic beverage
inside the truck. At that point the arresting officer had no reasonable suspicion that
O’Neal was intoxicated while driving his vehicle and had no probable cause to arrest him

                                                  14
for Driving While Intoxicated. Domingo v. State, 82 S.W.3d 617 (Tex. App–Amarillo,
2002).
         Although the issue in Knowles was the propriety of the search of his automobile,
the necessity of proof of reasonable suspicion and probable cause for warrantless
searches and warrantless arrests are the same. In Christian v. State, 592 S.W.2d 625,
(Tex. Cr. App. (1980) [on motion for rehearing ] appealed from the 54th District Court,
McLennan County, the court had before it the question of whether the arresting officer
seeing a shotgun on the floorboard of the car he had stopped for speeding was evidence
to support a claim of reasonable suspicion to search the person of the driver. The Court
of Criminal Appeals held that it was not. [Given the propensity of many citizens of this
state to carry about in their vehicles otherwise legal firearms----the incidence increase
depending on the season----we are not prepared to say that merely sighting [sic] a
shotgun in the floorboard area of a car whose driver is stopped for excessive speed is
sufficient justification under the Terry standards to conduct a frisk of the driver who is
standing well away from his car in the charge of another officer. Possession of the
shotgun is not an offense. Presumptively, then, its presence in the car was for a legal
purpose. Without other articulable facts and circumstances giving rise to a reasonable
belief that appellant was carrying a weapon on his person and was dangerous, the
Terry gambit never came into play, and the frisk and search of appellant were not
authorized. ] [emphasis supplied] Christian at [5], 631. The case was affirmed on other
grounds.
         If a lethal weapon on the floorboard of a vehicle was not evidence of reasonable
suspicion to search the driver of a car stopped for speeding in Christian then certainly the
odor of an alcoholic beverage in appellee’s vehicle cannot constitute evidence to support
a finding of reasonable suspicion to arrest him for Driving While Intoxicated, because it
is not a crime to smell like an alcoholic beverage.
         Most of the cases appellee has found dealing with similar facts use the term
“traffic offenses” as a generic term without distinguishing between those offenses which
authorize the arrest of a driver for its violation and the mandatory provisions of
§543.005 of the Transportation Code. A majority of the cases dealing with similar facts
were decided before the 1998 opinion of Knowles.

                                                 15
4. Speeding, the sole reason for the traffic stop in this case, was abandoned.
       No traffic citation was issued to appellant in this case although the sole reason for
his being stopped was the alleged excessive speed of his vehicle.
       The arresting officer stated that he observed appellant “speeding”, initiated a
traffic stop, approached appellant’s vehicle on the passenger side, asked him to roll down
his window, smelled a “strong” odor of an alcoholic beverage, asked for appellant’s
driver license and proof of insurance. (4 RR 8). He noticed nothing unusual other than
the odor of alcohol. (4 RR 9). However, the arresting officer abandoned the “speeding”
claim and moved directly into an “investigative detention” which must be reasonably
related in scope to the circumstances that justified the interference in the first place.
Davis v. State, 947 S. W. 2d 240, 242 (Tex. Crim. App. 1997). Such investigative
detention must be temporary and last no longer than is necessary to effectuate the
purpose of the stop Florida v. Royer, 460 U.S. 491,500, 103 S. Ct. 1319,
(1983) . This limitation means that once the reason for the stop has been satisfied, the
stop may not be used as a “fishing expedition” for unrelated criminal activity. Ohio v.
Robinette, 519 U.S.33,41, 117 S. Ct.417 (1996). There was no evidence connecting
speeding to Driving While Intoxicated in this case.
       In the present case the reason for appellant’s stop was “satisfied” when the
arresting officer abandoned the speeding allegation and moved directly into a fishing
expedition for the offense of Driving While Intoxicated without reasonable suspicion that
a crime (other than speeding) had been committed. Clearly the only reason appellant was
stopped was for the alleged speeding offense and Chapter 543 of the Transportation Code
applied.
Warnings are for traffic law violations of a relatively minor degree or less than clear-cut
and substantial.
       The arresting officer testified that he gave O’Neal a “warning” for his alleged
speeding violation (4 RR-20) and the trial judge so found. (Finding of Fact 12, CR -
107). If he issued the warning in accordance with the official policy of the Texas
Department of Public Safety he must have classified O’Neal’s traffic infraction minor or
less than clear-cut and substantial. The department rule provides:
Rule 3.22, Written Warning

                                                  16
              (a) General. The department believes that warnings given for traffic law
violations constitute acceptable enforcement action when given under proper
circumstances. Warnings will be given traffic law violations of a relatively minor degree.
              (b) Use of written warning.
               (1) Persons stopped by department of public safety traffic law enforcement
officers for traffic law violations of a relatively minor degree or less than clear-cut
and substantial and who are not arrested or issued a citation will be issued a written
notice of warning.
              (2) (Not applicable) Texas Administrative Code, Part 1, Chapter 3,
Sub chapter B, Rule 3.22 (Emphasis supplied)
       The arresting officer had O’Neal’s drivers license and it would have taken only a
few moments to issue him a warning notice. Ordering him to get out his vehicle and
questioning him extensively unreasonably extended the time necessary to accomplish the
purpose the initial minor traffic stop. Even if the arresting officer had decided to give
O’Neal a regular citation he (O’Neal) was required to give the arresting officer only his
name, residence address and date of birth, all of which is on his valid Texas drivers
license. Rule 3.23 Texas Administrative Code, Part 1, Chapter 3, Subchapter B. There is
no justification in this record for O’Neal being subjected to any questioning beyond that
necessary to comply with Department of Public Safety Rule 3.22 or 3.23.
5. Speeding is not evidence of Driving While Intoxicated.
       The Student Manual entitled DWI Detection and Standardized Field Sobriety
Testing prepared and published by National Highway Traffic Safety Administration
(NHTSA) , an arm of the U.S. Department of Transportation, is used by the Texas
Department of Public Safety in training its officers who will enforce Texas traffic laws
(4-RR 31) This manual contains 24 “cues” which police officers may use to detect
nighttime impaired (not intoxicated) drivers, and excessive speed is not one of them.
 (App. 5 , pages V-3 through V-7). A “cue” is defined as a “suggestion or hint”.
(App. 6 Page 1)
       The National Highway Traffic Safety Administration does not consider “speeding”
to even rise to the level of a “suggestion or hint” of intoxication and speeding certainly


                                                 17
cannot be considered evidence to support a finding of reasonable suspicion or probable
cause for an arrest for the offense of Driving While Intoxicated . O’Neal suggests that if
the arresting officer thought he detected any one of the twenty- four “cues” (App. 5 V4- V7)
which constituted reasonable suspicion to extend the traffic stop or probable cause for
appellant’s arrest he would have testified about them, even though they were only
“hints”, and the state would have quickly produced the video of the traffic stop and arrest
and it would have been introduced into evidence .

Appellant’s reliance on Pennsylvania v. Mimms is misplaced.
       Appellant’s reliance on Pennsylvania v. Mimms , 434 U.S. 106; 98 S. Ct. 330 (1977), is
misplaced because the State expands the Supreme Court holding beyond “the narrow question of
whether the order to get out of the car, issued after the driver was lawfully detained, was
reasonable and thus permissible under the Fourth Amendment.” Mimms, at 109. In Mimms the
driver was told to get out of his car after he was stopped for having expired license tags. When he
got out of the car the policemen noticed a bulge under the driver’s sports jacket. The case turned
primarily on balancing Fourth Amendment rights of Mimms and the safety of the policeman
performing his job.
       The Supreme Court addressed the safety issue and Mimms in Knowles v. Iowa, supra,
holding “But while the concerns of officer safety in this context [traffic stop] may justify the
‘minimal’ additional intrusion of ordering a driver and passengers out of the car, it does not by
itself justify the often considerable greater intrusion attending a full field-type search.” Knowles
at 488. The Supreme Court continued by saying that a more invasive search of a driver and
passengers may be conducted “upon reasonable suspicion that they may be armed and
dangerous”, which is not a claim made by the State in this case.
       In the present case there is no evidence that the arresting officer was fearful that O’Neal
would harm him. He simply abandoned the speeding issue and began gathering subjective
evidence in an attempt to establish probable cause to arrest O’Neal for Driving While Intoxicated.
In the process he violated the Fourth Amendment of the U.S. Constitution an Art. 1, §9 of the
Texas Constitution, and the trial judge correctly granted O’Neal’s motion to suppress the evidence
gathered as a result of such illegal conduct.
       The case of Davis v. State, 947 S.W. 2d 240, Tex. Crim. App. (1997) provides an


                                                  18
excellent review of the law concerning warrantless arrests and searches. Davis applies
with equal meaning to Article 1, Section 9 of the Texas Constitution. Internal citations
have been omitted.
                       EXCERPTS FROM DAVIS V. STATE
       To determine the reasonableness of such an investigative detention the [U.S. Supreme]
Court adopted a dual inquiry: (1) whether the officer’s action was justified at its inception; and,
(2) whether it was reasonably related in scope to the circumstances which justified the
interference in the first place. Davis at 242
       In assessing whether the intrusion was reasonable, an objective standard is utilized; would
the facts available to the officer [at the moment of the seizure or search] warrant a man of
reasonable caution in the belief that the action taken was appropriate. Davis at 243
       An investigative detention, like any other search, must be strictly circumscribed by the
exigencies which justified its initiation. Davis at 243.
       The scope of the search must be limited because a search which is reasonable at its
inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.
Davis at 243.
       This much, however, is clear: an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop. Davis at 243.
       This limitation means that once the reason for the stop has been satisfied, the stop may not
be used as a “fishing expedition” for unrelated criminal activity. Davis at 243.
       Consequently, a detention that is not temporary and reasonably related in scope to the
circumstances which justified the interference, is unreasonable and, thus, violative of the Fourth
Amendment. Davis at 243.
       A temporary detention is not permissible unless the circumstances upon which the officers
rely objectively support a reasonable suspicion that the person detained actually is, has been, or
soon will be engaged in criminal activity. Davis at 244.
       Reasonable suspicion requires that there is something out of the ordinary occurring and
some indication that the unusual activity is related to a crime. Davis at 244.
       Investigative detentions become unreasonable when they are not reasonably related in
scope to the circumstances which justified the interference in the first place. Davis at 244.
       An investigative detention must be temporary and last no longer than is necessary

                                                  19
to effectuate the purpose of the stop. The police may not carry out a full search of the person or
his effects. Nor may they verify their suspicions by means that approach an arrest. Davis at
244-245. Davis was decided in 1997 and Knowles was decided in 1998. The essence of
§543.003-543.004, Transportation Code, has been the public policy of this state since 1923.
                                        CONCLUSION
        The undisputed facts of this case , and the law applicable thereto, overwhelming supports
the trial courts action in granting Appellee’s motion to suppress the ill gotten evidence in this
case. Just as the State failed to carry its burden of proof in the trial court it has also failed to
establish here that the trial court abused it’s discretion in granting the motion.
        The record in this case is equally compelling that the arresting officer abandoned the
speeding allegation and immediately “went fishing” for subjective evidence in an attempt to
establish probable cause to arrest O’Neal for Driving While Intoxicated. And his fishing
expedition resulted in his flagrant violation of the rights guaranteed to O’Neal, and every citizen
of this State, by the Fourth Amendment to the Constitution of the United States and Article I,
Section Nine of the Texas Constitution. The trial court should be affirmed.


                                                PRAYER
        Appellee submits this case on the record and this brief and prays that the order of the trial
court be in all things affirmed.
                                                         Respectfully submitted,




                                                         Tom L. Ragland
                                                         No. 16471000
                                                         801 Washington, Ste. 217
                                                         Waco, Tx. 76701-1282
                                                         Phone: 254-753-0233
                                                         FAX: 2540753-0244
                                                         Email: tragland@hot.rr.com



                                   CERTIFICATE OF SERVICE


                                                    20
I certify that a true and correct copy of the foregoing document was HAND DELIVERED to Mr.
John Messinger, Attorney for the State, 219 N. 6th Street, Waco, Texas, 76701 on the ______day
of May, 2008.


                                                          ____________________________
                                                                Tom L. Ragland




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