                                      NO. 07-06-0099-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                      OCTOBER 9, 2007

                            ______________________________


                        CHARLES RAY GIBSON, JR., APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE

                          _________________________________

                FROM THE 121 S T DISTRICT COURT OF TERRY COUNTY;

                   NO. 5273; HONORABLE KELLY G. MOORE, JUDGE

                           _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   CONCURRING OPINION

       I agree with the majority’s conclusion (footnote 3) that the trial court erred in failing to

submit an instruction to the jury in accordance with article 38.23 of the Texas Code of

Criminal Procedure; and, therefore, to the extent that the majority concludes that the judgment

should be reversed, I concur. I respectfully disagree, however, with the conclusion that the

trial court erred in denying Appellant’s Motion to Suppress. Considering the totality of the
evidence, I would conclude that Officer Carrillo was justified in stopping Appellant based upon

a reasonable exercise of the community caretaking function.


       The temporary detention of an individual during the stop of a motor vehicle by the

police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of that

person within the meaning of the Fourth Amendment, Whren v. United States, 517 U.S. 806,

809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and both the Fourth Amendment to the

United States Constitution and article 1, section 9 of the Texas Constitution require that the

seizure be reasonable. The reasonableness of a given seizure depends upon a balance

between the public interests and the individual’s right to personal security free from arbitrary

interference. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357(1979).

The constitutionality of a seizure involves balancing three factors: (1) the gravity of the public

interest, (2) the degree to which the seizure advances the public interest, and (3) the severity

of the interference with individual liberty. Id. 443 U.S. at 51-52. As a general principle, the

decision to temporarily stop a motor vehicle is constitutionally reasonable where the police

have probable cause to believe that the stop is necessary to locate and secure a missing child

under the “community caretaking” exception to the Fourth Amendment.


                               Community Caretaking Function


       The term “community caretaking function” was first used by the Supreme Court in Cady

v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In that case, a law

enforcement officer made a warrantless search of a vehicle that had been involved in an

accident to determine if his service revolver had been accidently dropped in the vehicle during

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the course of an accident investigation. In finding that the search was constitutionally

reasonable, the Court recognized that police officers frequently investigate accidents in which

there is no claim of criminal activity and concluded that a search which was totally divorced

from the detection, investigation, or acquisition of evidence relating to criminal activity could

be a permissible community caretaking function. Relying on Cady the Texas Court of

Criminal Appeals recognized the community caretaking function as an exception to the Fourth

Amendment’s warrant requirement. Wright v. State, 7 S.W .3d 148, 151 (Tex.Crim.App.

1976). The application of that exception is, however, to be narrowly applied, given the totality

of the circumstances. Laney v. State, 117 S.W .3d 854, 858-59 (Tex.Crim.App. 2003). In

Wright the Court set forth four factors to consider in determining whether or not the police

activity was constitutionally premissible.1


       In applying the first Wright factor, the majority focuses upon the nature and level of

distress exhibited by C.W . in determining whether the stop of Appellant was justified as an

objective exercise of the community caretaking function.2 C.W .’s mother and legal guardian,



       1
         The factors set forth in Wright are as follows: (1) the nature and level of the distress
exhibited by the individual; (2) the location of the individual; (3) whether or not the individual
was alone and/or had access to assistance independent of the assistance offered by the
officer; and (4) to what extent the individual, if not assisted, would present a danger to himself
or others. Id. at 152.
       2
        In its analysis of the trial court’s ruling on the Motion to Suppress, the majority
assumes, without deciding, that the community caretaking function justifies the seizure of an
individual other than the individual believed to be in need of assistance. To the extent that
the majority opinion casts doubt on this assumption, I would specifically hold that objective
application of the community caretaking function makes no distinction between the individual
detained and the individual in distress so long as the detention is incident to and a necessary
part of the officer’s reasonable exercise of that function. In this case, the detention of
Appellant was incident to and a necessary part of Officer Carrillo’s attempt to respond to
C.W .’s mother’s request for public assistance for the perceived safety of the minor child.

                                                3
Rose W aitman, had reported C.W ., a minor child, as missing and as a possible run-away.

At the time and under the circumstances surrounding the stop, the officer knew that the

missing person was a 15 year old female, that she was suspected to be in the company of a

30 year old man,3 and that she was suspected to be in a specifically identified motor vehicle.

Under those circumstances, Officer Carrillo’s failure to stop that specific vehicle and

investigate the whereabouts and condition of the juvenile in question would have been a

dereliction of his duty to “serve and protect” the public.


       In its analysis of the second factor, the majority concludes that the proximity of the

juvenile’s residence to the location of the stop militates against the stop being reasonable.

In doing so, the majority fails to also consider the fact that Officer Carrillo had attempted to

initiate the stop several blocks from the residence and that another patrol vehicle had even

“pulled to the side to see if we could slow the vehicle” before they were able to effectuate the

stop. Furthermore, the vehicle’s proximity to C.W .’s residence is only as relevant as Officer

Carrillo’s knowledge that Appellant was intent on delivering the child to her residence. Officer

Carrillo specifically testified that he was not sure of Appellant’s intentions and the trial court

was in the position to judge the weight and credibility of that testimony. Just as reasonably,

it could be argued that the second Wright factor, the location of the person in perceived

danger, was the very purpose of the stop, i.e. determination of the location of the minor child.




       3
         Officer Carrillo testified that he had previous encounters with Appellant. Although
there is no direct testimony that at the time of the original stop, Officer Carrillo had knowledge
of Appellant’s prior felony record, we do know that he was aware of the fact that Appellant did
not have a driver’s license and it is reasonable to assume that Appellant’s felony record may
have been made known to Officer Carrillo.

                                                4
The majority considers the third factor a non-factor because Officer Carrillo could not identify

the individuals in the vehicle. Again, the purpose of the stop was to determine the safety of

a minor child and the circumstances of the stop in question support the trial court’s implicit

determination that the stop was reasonable and necessary to determine the location, safety

and welfare of the child. In its analysis of the fourth factor, the majority concludes that the

record provides no evidence that C.W . was in danger. W hen the welfare of a child is at stake,

the perception of danger is just as real and just as important as the actual danger to which the

child is exposed. Rose W aitman perceived C.W . to be in danger and she sought the

assistance of law enforcement to protect her child.


       Based upon my analysis of the four Wright factors, I would reach a conclusion contrary

to the conclusion reached by the majority in that I would find that the evidence establishes that

Officer Carrillo had probable cause to believe that a missing child would be located in the

specific vehicle stopped and that the stop of Appellant’s vehicle was an objectively reasonable

exercise of the community caretaking function and, therefore, constitutionally permissible.


       Finally, although I believe that the stop here was permissible under the community

caretaking exception discussed in Cady and Wright, it could be argued that the information

available to Officer Carrillo might well have justified a brief investigatory detention based upon

reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Applying the factors from Brown, (1) the public concern served was the safety and welfare of

a minor child, (2) the brief investigatory stop advanced that concern by establishing or

eliminating whether the missing child was in a specific vehicle, and (3) the severity of the



                                                5
interference was minimal. Officer Carrillo was not stopping every citizen on the streets.

Instead, he had probable cause to believe that this specific vehicle might reasonably contain

the missing minor child. In a world of increasing awareness and sensitivity to crimes against

children, and in a society where “Amber Alert” laws have been enacted to assist law

enforcement in the recovery of missing children,4 the limited intrusion of a brief traffic stop

under circumstances like those present in this case cannot easily be seen as unlawful.

Accordingly, I would find that the trial court did not err in denying Appellant’s Motion to

Suppress.




                                                          Patrick A. Pirtle
                                                             Justice

Publish.




       4
           Texas Gov’t Code § 411.351 et seq. (Vernon 2003).

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