      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00248-CR



                                Gregory Stuart Tapper, Appellant

                                                  v.

                                   The State of Texas, Appellee


               FROM THE COUNTY COURT AT LAW OF BURNET COUNTY,
           NO. M19517, HONORABLE WILLIAM R. SAVAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The appellant, Gregory Tapper, was arrested for driving while intoxicated in February

2005. See Tex. Penal Code Ann. § 49.04 (West 2003). After a jury trial, the appellant was found

guilty of the charged offense and was placed on two years’ probation. The appellant appeals his

conviction and argues that the trial court erred by denying his motion to suppress evidence of his

field sobriety tests and his breath-test results and rejecting his proposed jury instruction concerning

the legality of his arrest. We will reverse the judgment of the trial court.


                                         BACKGROUND

               In February 2005, paramedics and police officers were called to the scene of a one-car

roll-over accident involving the appellant. Paramedic Jeremy Driver was the first to arrive on the

scene. Driver later testified that while he was talking with the appellant, he observed beer cans

around and inside the appellant’s vehicle. After noticing the cans, Driver asked the appellant if he
had drunk any alcohol that day, and the appellant admitted that he had. Driver also testified that the

appellant was fully alert during the encounter. Further, Driver stated that because the appellant had

injured his hand in the accident, he treated and bandaged the appellant’s hand in the ambulance.

               Officer Daniel Grivas arrived on the scene soon after Driver and began questioning

the appellant regarding the cause of the accident. Shortly after initiating questioning, Grivas read

the appellant his Miranda rights, and the appellant then continued to describe the events leading up

to the accident. See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that accused must be

informed, prior to questioning, that “he has the right to remain silent, that anything he says can be

used against him in a court of law, that he has the right to the presence of an attorney, and that if he

cannot afford an attorney one will be appointed for him”). Grivas testified that while the appellant

was speaking, Grivas noticed that the appellant smelled strongly of alcohol and that the appellant

admitted that he had consumed a couple beers earlier in the day.

               Soon after Grivas finished questioning the appellant, Officer Shannon Simpson

arrived on the scene.1 Simpson began to ask the appellant questions regarding the accident. As a

preliminary matter, Simpson asked the appellant to produce his insurance information. In his

testimony, Simpson stated that when the appellant began looking through his wallet for the

information, he either dropped several items from his wallet or dropped his wallet onto the floor of

the ambulance. Simpson further testified that while he was talking with the appellant, he noticed that

the appellant smelled like alcohol. In his report made at the scene, Simpson did not indicate that the


       1
          Because Simpson was wearing a microphone, many of his statements and the appellant’s
statements were recorded onto a videotape by a camera inside Simpson’s car. The videotape is part
of the record in this appeal.

                                                   2
appellant’s speech was slurred or that the appellant had any difficulty walking. Other than the

appellant’s dropping his wallet, Simpson testified that he did not observe any behavior by the

appellant at the scene that was consistent with being intoxicated. Grivas informed Simpson that the

appellant had been read his Miranda rights and was being detained but was not under arrest.

                Shortly thereafter, Simpson decided to ask the appellant to perform several sobriety

tests, but rather than asking the appellant to perform the tests at the scene, Simpson decided to take

the appellant to jail to perform the tests. Simpson testified that he wanted to have the appellant

perform the tests at the jail because he was concerned that performing the tests at the scene would

have been unsafe due to the heavy traffic in the area and the fact that the road was very narrow and

had no shoulder.2 As a result, Simpson handcuffed the appellant, placed him in the patrol car, and

transported him to the jail. On the way, Simpson informed the appellant that he was being detained

for further tests but did not say that the appellant was under arrest. In his testimony, Simpson also

stated that he was not intending to arrest the appellant at that time. On the way to the jail, the

appellant volunteered that he had consumed a couple of beers earlier that night. In response to a

question by the appellant, Simpson informed the appellant of the consequences of

failing a breath test.

                When they arrived at the jail, Simpson read the appellant his Miranda rights. In

addition, Simpson also read to the appellant the contents of a DIC-24 form, which explains to an

individual who is about to take a breath test that he is under arrest and also explains the legal




        2
         In the video, Simpson informed the appellant that the reason that Simpson was transporting
the appellant to the jail was because the intoxilyzer was at the jail.

                                                  3
consequences of failing or refusing to take the test. Simpson then asked the appellant to perform

three sobriety tests: (1) the horizontal-gaze-nystagmus test, (2) the walk-and-turn test, and (3) the

one-leg-stand test. The appellant performed well on the walk-and-turn test and the one-leg-stand

test, but Simpson noted that the appellant exhibited all six indicators of intoxication during the

nystagmus test. The appellant then agreed to take two breath tests, and the results showed that the

appellant had a blood-alcohol level that was well over the legal limit. After the appellant finished

taking the breath tests, Simpson told the appellant that he was under arrest for the crime of

driving while intoxicated.

               Prior to his trial, the appellant filed motions to suppress any evidence obtained after

he was taken from the scene of the accident, including the results of his sobriety tests. In his

motions, the appellant argued that by taking him to jail to perform sobriety tests, the police had

improperly arrested him without probable cause. Therefore, he contended that any evidence obtained

after his arrest should be excluded. Further, he argued that he did not voluntarily consent to taking

a breath test. Ultimately, the trial court denied the motions to suppress.

               During the trial, the appellant objected to the admission of evidence obtained after

he was taken from the scene of the accident, but the trial court overruled those objections. In

addition, the appellant also requested that an instruction be given to the jury explaining that the jury

should not consider the results of his field sobriety tests and breath tests if he was arrested without

probable cause. The trial court denied the appellant’s proposed jury instruction.

               At the end of the trial, the jury concluded that the appellant was guilty of the crime

of driving while intoxicated.



                                                   4
                                    STANDARD OF REVIEW

               When evaluating a trial court’s ruling on a motion to suppress, we defer to the court’s

factual determinations, but we review the court’s application of the law to the facts de novo.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When making the ultimate

determination of whether the evidence should have been suppressed, we will sustain the court’s

ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any

theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002);

Ness v. State, 152 S.W.3d 759, 762 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). When, as

here, the trial court does not make explicit findings of fact, we review the evidence in the light most

favorable to the court’s ruling and assume that the court made findings that are supported by the

record and buttress its conclusion. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim.

App. 2000); see also Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007) (stating that

appellate courts should view evidence in light most favorable to trial court’s ruling on motion to

suppress because trial court is able to observe demeanor and appearance of witnesses).


                                           DISCUSSION

               In his first issue on appeal, the appellant argues that the district court erred when it

admitted evidence obtained after he was taken from the scene of the accident. Specifically, he

complains about the admission of evidence concerning the field sobriety tests and the results of his

breath tests. The appellant argues that this evidence should have been excluded because at the time

he was taken into custody, there was no probable cause to justify his arrest. See Porter v. State,

938 S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (stating that State has burden

                                                  5
to prove that probable cause existed to support warrantless arrest). In making this assertion, the

appellant insists that he was arrested when he was handcuffed and transported to jail or when

Simpson read the contents of the DIC-24 form to him at the jail. The appellant insists that at neither

of those times was there probable cause to justify his arrest. Moreover, the appellant argues that

Simpson did not have probable cause to arrest, if ever, until after the appellant took the field sobriety

and breath tests. As support for this assertion, the appellant points to Simpson’s statements made

while transporting the appellant to the jail indicating that the appellant was not under arrest and to

Simpson’s testimony that he did not intend to arrest the appellant when Simpson transported the

appellant to jail. The appellant also points to the fact that prior to taking the breath tests, he passed

both the walk-and-turn and one-leg-stand field sobriety tests.

                 To properly address the appellant’s claim, we must first determine at what point he

was arrested. In determining whether an individual has been placed in the custody of authorities,

courts    must    look    to   the   objective   circumstances      surrounding      the   detainment.

Stansbury v. California, 511 U.S. 318, 323 (1994); Dowthitt v. State, 931 S.W.2d 244, 255

(Tex. Crim. App. 1996). Unless they are communicated to the detained individual, the subjective

views held by the police officers concerning whether the individual was in custody are not relevant

to the determination. Dowthitt, 931 S.W.2d at 254. A person is deemed to be in custody only if a

reasonable person would believe that, under the relevant circumstances, his freedom of movement

was restricted by the same amount associated with a formal arrest. Id. An individual will generally

be deemed to be in the custody of authorities in the following circumstances:


         (1) when the suspect is physically deprived of his freedom of action in any significant
         way, (2) when a law enforcement officer tells the suspect that he cannot leave,

                                                   6
        (3) when law enforcement officers create a situation that would lead a reasonable
        person to believe that his freedom of movement has been significantly restricted, and
        (4) when there is probable cause to arrest and law enforcement officers do not tell the
        suspect that he is free to leave.


Id. at 255.

               Based on the evidence presented at trial, we must conclude that a reasonable person

under the circumstances would have believed that his freedom of movement was being restricted at

the same level associated with a formal arrest at the time that the appellant was handcuffed and

placed in Simpson’s car. First, the appellant was physically deprived of his freedom of movement

when he was handcuffed. While it is true that placing handcuffs on an individual on its own does

not necessarily constitute placing that person under arrest, see Ramirez v. State, 105 S.W.3d 730, 739

(Tex. App.—Austin 2003, no pet.), the handcuffing is not the only factor weighing in favor of our

determination. Second, prior to being handcuffed, the appellant was read his Miranda rights by

officer Grivas,3 and Simpson was informed of that fact by Grivas. Third, although Simpson did not

state that the appellant was under arrest, Simpson did place the appellant in the police car and tell

him that he was being detained and taken to the jail to undergo testing for intoxication. See

Hardinge v. State, 500 S.W.2d 870, 872-73 (Tex. Crim. App. 1973) (concluding that officer arrested

Hardinge even though officer told Hardinge that he was not under arrest).4

        3
           In the video, the appellant admitted that he was read his Miranda rights but stated that he
thought that it was a paramedic that read him those rights. However, the appellant does not make
this assertion on appeal.
        4
          We note as a matter of some significance our disapproval of the idea that an individual is
merely being detained when he is handcuffed, placed in the back of a police car, and transported to
jail. The concept of a detention—meaning preventing an individual from leaving an area—cannot

                                                  7
                Having concluded that the appellant was arrested when he was placed into the car,

we must now determine whether the arrest was proper. Police officers may stop and briefly detain

an individual if under the totality of the circumstances, the officer knows of specific articulable facts

that, when combined with the officer’s training, experience, and personal knowledge and the rational

inferences from those facts, lead one to conclude that the person detained is, has been, or soon will

be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997);

Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). The officer must point to something

that would lead a reasonable person to believe that the detainee was engaged in criminal conduct.

See Davis, 947 S.W.2d at 244. However, to arrest an individual without a warrant, the police

officers need more than reasonable suspicion. In general, a warrantless arrest is unreasonable unless

it falls within an exception set out in the code of criminal procedure and there was probable cause




be stretched to include transporting an individual to jail against his will. The handcuffing and
transportation of an individual to jail has to mean that the individual was arrested no matter what
statements the officers may make. If this type of activity were labeled a detention, police officers
would be entitled to effectively arrest an individual despite having no probable cause to believe that
the individual had committed a crime so long as the officers had reasonable suspicion to believe that
the individual was or had been engaged in criminal conduct—the lower standard used to determine
whether a temporary detention was justified. See Glazner v. State, 175 S.W.3d 262, 266 (Tex. Crim.
App. 2005) (noting that detention was proper because officer had reasonable suspicion to believe
individual was or had been engaged in criminal activities). We will not endorse such an argument,
nor will we equate detention with arrest. Rather, we continue to hold that police officers must have
probable cause to make a warrantless arrest of an individual.

         In this case, the appellant did not ask the police to remove him from the scene of the accident
and take him to jail. Moreover, on the way to the jail, the appellant informed Simpson that the
appellant’s house was close by, stated that all he wanted to do was go home and go to bed, and
questioned the necessity of going to the jail. In light of these statements, there can be no argument
that the appellant was merely being detained rather than arrested because a reasonable person would
have concluded that his freedom of movement was being restricted by the same level associated with
a formal arrest.

                                                   8
to arrest the individual in question. Torres v. State, 182 S.W.3d 899, 901-02 (Tex. Crim. App.

2005); see Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (West 2005 & Supp. 2006) (listing exceptions

to warrant requirement).

               In determining whether there was probable cause justifying an arrest, courts must look

to the totality of the circumstances. Torres, 182 S.W.3d at 902. Probable cause exists if the officer

has a reasonable belief that an offense has been committed and that belief is based on facts and

circumstances that are within the officer’s personal knowledge or about which the officer has

reasonably trustworthy information. See id.; State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App.

1999) (explaining that probable cause exists if officer has reasonably trustworthy information

sufficient to warrant reasonable person to believe that particular person has committed criminal

offense). But a mere suspicion, an officer’s unarticulated hunch, or the good faith of the arresting

officer does not constitute probable cause to support a warrantless arrest. See Torres, 182 S.W.3d

at 902. Although the words used in both standards are similar, probable cause requires a higher level

of suspicion than reasonable suspicion.         See Coleman v. State, 188 S.W.3d 708, 718

(Tex. App.—Tyler 2005, pet. ref’d); see also United States v. Sokolow, 490 U.S. 1, 7 (1989) (noting

that police officers may stop and briefly detain person for investigative purposes if officers have

reasonable suspicion that criminal activity may be occurring, even if officers lack probable cause).

               For the reasons that follow, we conclude that the appellant’s arrest was not supported

by probable cause. During the trial, Simpson testified that his suspicion that the appellant was

intoxicated at the time of the accident was based on the facts that the appellant was involved in a

single-car collision, smelled like alcohol, and dropped his wallet. The smell of alcohol and the

discovery of beer cans in and around the vehicle is evidence that the appellant had consumed


                                                 9
alcoholic beverages, but without more, it is not evidence that the appellant was legally intoxicated.

Furthermore, at the time of his arrest, the appellant had not taken nor failed any field sobriety tests.

See Nottingham v. State, 908 S.W.2d 585, 588 (Tex. App.—Austin 1995, no pet.) (holding that

probable cause existed to support arrest because Nottingham smelled like alcohol, admitted to

drinking, and failed horizontal-gaze-nystagmus field sobriety test). Moreover, with the exception

of the appellant either dropping his wallet or the items in his wallet, Simpson testified that the

appellant did not display any signs of being intoxicated. In fact, Simpson testified that the appellant

did not slur his speech and that his ability to walk was not impaired. See Carrasco v. State,

712 S.W.2d 120, 121-22 (Tex. Crim. App. 1986) (holding that probable cause to arrest Carrasco

existed when she was involved in single-car accident; her eyes appeared glassy; her speech was slow,

deliberate, and slurred; and her movement was impaired). Finally, the fact that the appellant either

dropped his wallet or some of the items in his wallet when asked to retrieve his insurance

information is not enough to justify his arrest, even when considered along with the smell of

alcohol and the fact that it was a single-car accident, when the appellant’s action is considered in

light of the fact that he had just been involved in a roll-over accident and had injured his hand during

the accident. Although the factors testified to by Officer Simpson may have supported a finding of

reasonable suspicion for further investigation into the circumstances surrounding the accident, they

do not satisfy the heightened standards required to find probable cause. Because Simpson did not

have probable cause to believe that the appellant was intoxicated, the arrest was unlawful.

                Because we have concluded that the appellant’s arrest at the scene of the accident was

not supported by probable cause, we hold that the trial court erred in admitting the evidence of the

appellant’s field sobriety tests and breath results. See Tex. Code Crim. Proc. Ann. art. 38.23

                                                  10
(West 2005) (mandating that “[n]o evidence obtained by an officer or other person in violation of

any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the

United States of America, shall be admitted in evidence against the accused on the trial of any

criminal case”). Therefore, we sustain the appellant’s first issue on appeal.

               In his second issue on appeal, the appellant contends that the trial court erred by

denying his proposed jury charge. However, because we sustained the appellant’s first issue on

appeal, we need not address this issue.


                                          CONCLUSION

               Having sustained the appellant’s first issue on appeal, we reverse the judgment of the

trial court and remand the case for proceedings consistent with this opinion.




                                               David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Henson

Reversed and Remanded

Filed: August 23, 2007

Do Not Publish




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