      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00457-CR



                                Ryan Cameron Foster, Appellant

                                                  v.

                                   The State of Texas, Appellee


               FROM COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
          NO. C1-CR-07-218663, HONORABLE JAN BRELAND, JUDGE PRESIDING



                                           OPINION


               The State charged Ryan Cameron Foster with the Class B misdemeanor of driving

while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (West 2003). Following the

trial court’s denial of Foster’s motion to suppress, Foster pleaded no contest. The court sentenced

him to 120 days’ confinement and a $2,000 fine, but suspended imposition of this sentence and

placed him on community supervision for eighteen months. In one point of error, Foster argues that

the trial court erred by not suppressing evidence obtained by the police during his investigative

detention and subsequent arrest because the police did not have reasonable suspicion to investigate

him for driving while intoxicated. Because Foster’s detention was not supported by reasonable

suspicion, we reverse the order of the trial court.
                                            BACKGROUND

                   On September 13, 2007, at approximately 1:30 a.m., Kurt Thomas, an Austin Police

Department detective, was stopped at a red traffic light in downtown Austin at the intersection

of Eighth Street and the southbound frontage road of Interstate 35, near the downtown Austin

police station.1

                   Thomas testified that while he was stopped at the traffic light, Foster drove up behind

him in a Ford F-150 truck, with his headlights shining directly into Thomas’s rearview mirror.

Foster pulled extremely close to Thomas’s unmarked vehicle, but did not actually make contact with

Thomas’s vehicle. According to Thomas, he heard a revving sound and noticed Foster’s truck lurch

forward once, then a second time, as if attempting to maneuver into the empty lane to the left.

During the second lurching movement, Foster’s vehicle moved slightly to the left but could not move

into the empty lane because it was too close to Thomas’s vehicle.

                   Immediately after the second lurching movement, a marked Austin Police Department

patrol car driven by Sergeant Eric De Los Santos pulled alongside Thomas and Foster. Because

Foster’s truck was stopped on a two-lane, one-way street, he was effectively prevented from moving

by the presence of the two police vehicles. Thomas and De Los Santos then exited their respective

vehicles and approached Foster.

                   Upon approaching Foster’s vehicle, Thomas and De Los Santos detected the odor of

an alcoholic beverage. Foster was removed from his truck and a responding DWI enforcement

officer conducted field sobriety tests, resulting in Foster’s arrest for driving while intoxicated.



        1
         The facts recited herein are drawn from the testimony and exhibit admitted at the pretrial
suppression hearing.

                                                     2
               In a pretrial motion, Foster moved to suppress all evidence obtained as a result of the

stop on the grounds that his detention was improper because it was not supported by reasonable

suspicion. The trial court denied the motion to suppress, making express findings that Thomas’s

testimony was credible and that Thomas had reasonable suspicion to detain Foster in light of the time

of night, the location near Austin’s downtown bar district, and Foster’s erratic driving, particularly

the two lurching movements described in Thomas’s testimony. This appeal followed.


                                           DISCUSSION

               On appeal, Foster contends that the trial court erred in denying the motion to

suppress because the stop violated the prohibition of unreasonable searches and seizures found in

the Fourth Amendment to the United States Constitution and article I, section 9 of the

Texas Constitution. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. In response, the State argues

that Foster was not detained until he was removed from his truck, at which time Thomas had not

only observed Foster driving in an erratic fashion late at night near a bar district, but had also

detected the odor of alcoholic beverages coming from Foster’s vehicle. The State also argues that

Thomas was justified in detaining Foster because he had reasonable suspicion that Foster had

committed the traffic offenses of unsafe start from a stop position and reckless driving.2




       2
          At the suppression hearing, the State did not contend that the detention occurred only after
Thomas and De Los Santos detected the odor of alcoholic beverages, nor did it argue that the
detention was justified by any traffic violations. Instead, the State took the position that Thomas had
reasonable suspicion to detain Foster based on his unsafe and erratic driving, combined with the
lateness of the hour and the proximity of the Sixth Street bar district.

                                                  3
Standard of Review

                The appropriate standard of review for a suppression ruling is a bifurcated review,

giving almost total deference to the trial court’s findings of fact, but conducting a de novo review

of the court’s application of law to those facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.

App. 2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000)); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.

App. 1997). When reviewing the trial court’s decision, an appellate court views the evidence in the

light most favorable to the trial court’s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim.

App. 1999). The trial court’s ruling must be upheld if it is reasonably supported by the record and

is correct under any applicable legal theory. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.

App. 2006). This rule holds true even if the trial court gave the wrong reason for its ruling.

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).


The Detention

                A police officer may stop and briefly detain a person for investigative purposes if the

officer, in light of his experience, has a reasonable suspicion, supported by articulable facts, that

criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968); Carmouche, 10 S.W.3d

at 328. When a warrantless seizure occurs, the burden is on the State to show that the officer had

reasonable suspicion to believe that an individual was violating the law. Castro v. State, 227 S.W.3d

737, 741 (Tex. Crim. App. 2007). “[R]easonable suspicion requires ‘that there is something out of

the ordinary occurring and some indication that the unusual activity is related to crime.’” Davis

v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (quoting Viveros v. State, 828 S.W.2d 2, 4


                                                  4
(Tex. Crim. App. 1992)). A reasonable suspicion means more than a mere hunch or non-specific

suspicion of criminal activity. Tanner v. State, 228 S.W.3d 852, 855 (Tex. App.—Austin 2007,

no pet.). We take into consideration experienced police officers’ perceptions and review their

perceptions objectively, rather than subjectively. Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim.

App. 2005). The reasonableness of a temporary detention must be examined by considering the

totality of the circumstances at its inception and the detention will only be justified if the officer can

point to specific articulable facts that, when combined with rational inferences from those facts,

would lead him to reasonably suspect that a specific person had engaged in or was or soon would

be engaging in criminal activity. Id.; Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

We look only at those facts known to the officer at the inception of the stop—a stop or search

unlawful at its inception may not be validated by what it turns up. See Wong Sun v. United States,

371 U.S.471, 484 (1963).


When was Foster detained?

                The State argues that because Foster’s truck was “at a standstill of its own accord,”

Foster was not detained until he was removed from his truck and only after the officers detected a

strong odor of alcoholic beverages coming from the vehicle. In essence, the State argues that the

two officers were simply initiating a consensual encounter with Foster which then turned into an

investigative detention when they detected the odor of alcoholic beverages.

                An investigative detention is distinguishable from a consensual encounter, which does

not infringe on a constitutional right and requires no justification. Florida v. Royer, 460 U.S. 491,

497-98 (1983). An officer without reasonable suspicion of criminal activity may question an

individual during a consensual encounter, “as long as the person to whom questions are put remains

                                                    5
free to disregard the questions and walk away.” United States v. Mendenhall, 446 U.S. 544, 554

(1980). However, an investigative detention occurs when a person’s freedom of movement is

restrained, either by physical force or a show of authority. Johnson v. State, 912 S.W.2d 227, 236

(Tex. Crim. App. 1995). A detention occurs when a person yields to an officer’s show of authority

or when a reasonable person would not feel free to decline the officer’s requests or otherwise

terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436 (1991); State v. Velasquez,

994 S.W.2d 676, 678-79 (Tex. Crim. App. 1999). Determining at what point in time someone is

detained is a question of law. Davis v. State, 22 S.W.3d 8, 11 (Tex. App.—Houston [14th Dist.]

2000, no pet.).    An investigative detention constitutes a seizure and invokes constitutional

safeguards. Mendenhall, 446 U.S. at 553.

               In this case, Foster was stopped on a two-lane, one-way street when he found himself

barricaded on the front and side by two vehicles, one of which was a marked police car. While

Foster was hemmed in by the two vehicles, police officers exited from the vehicles and began

approaching his truck. Under such circumstances, a reasonable person would not only feel that he

was not free to leave, but would be physically prevented from doing so, absent an attempt to exit the

vehicle and flee on foot. On that basis, we hold that Foster was detained at the time the police

officers blocked his vehicle, preventing him from leaving the scene, and began to approach. Thus,

the detention must be justified based on the totality of the circumstances at that time.3


       3
           The State cites Martin v. State, 104 S.W.3d 298, 301-02 (Tex. App.—El Paso 2003,
no pet.), in which the court held that a police officer, by pulling up behind a vehicle broken down
at an intersection and turning on his lights to warn approaching traffic of the stopped vehicle, merely
instigated a consensual encounter, rather than a detention. However, the facts of Martin are
distinguishable from the present case, as Foster’s vehicle was not broken down in the roadway,
creating a potential hazard for approaching traffic, but was stopped at a traffic light when the police
vehicles blocked his path and prevented him from leaving the scene.

                                                  6
Reasonable Suspicion

               On appeal, the State presents two theories to justify the stop. First, the State argues

that Thomas was justified in detaining Foster based on reasonable suspicion that a traffic offense had

occurred. See Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982) (“It is well settled

that a traffic violation committed in an officer’s presence authorizes an initial stop.”). Second, the

State argues that the stop was justified based on reasonable suspicion that Foster was intoxicated.

See Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.—Austin 1998, pet. ref’d) (reviewing

“reasonableness of the stop on the basis of a suspicion that appellant was intoxicated”). We will

examine each of these theories in turn.


               1.      Was there reasonable suspicion of a traffic offense?

               The State contends on appeal that Thomas was justified in making the stop because

he had reasonable suspicion that Foster had committed the traffic violations of unsafe start from a

stop position and reckless driving. See Tex. Transp. Code Ann. §§ 545.401(a), .402 (West 1999).4

An officer may legally initiate a detention if he has a reasonable basis for suspecting that a person

has committed a traffic offense. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

A traffic stop will be deemed valid as long as a reasonable officer in the same circumstances could

have stopped the car for the suspected offense. Whren v. United States, 517 U.S. 806, 808 (1996).

There is, however, no requirement that an actual traffic offense be committed, just that the officer



       4
         Section 545.402 provides, “An operator may not begin movement of a stopped, standing,
or parked vehicle unless the movement can be made safely.” Tex. Transp. Code Ann. § 545.402
(West 1999). Section 545.401(a) provides, “A person commits an offense if the person drives a
vehicle in wilful or wanton disregard for the safety of persons or property.” Id. § 545.401(a)
(West 1999).

                                                  7
reasonably believed that a violation was in progress. Davy v. State, 67 S.W.3d 382, 393

(Tex. App.—Waco 2001, no pet.); Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.—Houston

[14th Dist.] 1997, no pet.).5

                In the instant case, Thomas testified at the suppression hearing that Foster drove up

and stopped extremely close to his vehicle at a traffic light, but that he did not hear any sounds of

tires screeching as Foster approached. Thomas then heard a revving sound from Foster’s engine and

observed the truck make two forward lurching movements. Based on these movements, Thomas

concluded that Foster was attempting to move into the next traffic lane, but was too close to

Thomas’s vehicle to do so. Foster’s vehicle never actually left his lane or made contact with

Thomas’s vehicle. Thomas testified that he considered Foster’s driving to be unsafe, and that, in

light of the time of night and proximity to the local bar district, he suspected that the driver

was impaired.

                Viewing Thomas’s observations objectively, we conclude that the circumstances did

not warrant a reasonable belief that Foster had committed a traffic violation at the time he was

detained. Poor or even rude driving habits do not necessarily translate into traffic violations. There

was no evidence that Foster was out of control at the time he stopped behind Thomas’s vehicle or

that he was otherwise driving recklessly. Foster’s vehicle never actually left its lane of traffic, nor

was there any evidence that it was dangerous to change lanes at the time Foster appeared to be

attempting to do so. Foster may very well have intended to move into an open traffic lane while



       5
          On the other hand, reasonable suspicion of an alleged traffic violation cannot be based on
a police officer’s mistaken understanding of traffic laws. See United States v. Granado, 302 F.3d
421, 423 (5th Cir. 2002); Fowler v. State, 266 S.W.3d 498, 504 (Tex. App.—Fort Worth 2008,
pet. ref’d).

                                                  8
waiting at a traffic light and simply realized, after beginning to initiate the lane change, that he did

not have sufficient room to maneuver—a common driving scenario that does not rise to the level of

a traffic violation. Based on the totality of the circumstances, we hold that reasonable suspicion did

not exist to justify the detention of Foster’s vehicle in order to investigate the two proffered traffic

violations of unsafe start from a stop position and reckless driving.


               2.      In the absence of a traffic offense, was there reasonable suspicion of
                       intoxication?

               The trial court determined that Foster’s two lurching movements, when combined

with the late hour and proximity of the Sixth Street area, were sufficient to justify the detention for

the purpose of investigating whether the driver was intoxicated. We disagree. As previously

discussed, the lurching movements were not unreasonably dangerous, reckless, or even inexplicable.

While the Court of Criminal Appeals no longer employs the “as consistent with innocent activity as

with criminal activity” test for reasonable suspicion, the plausibility of an innocent explanation in

this case affects our determination of whether there was a reasonable basis for suspecting that Foster

was intoxicated. See Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007). Intoxication

cannot be inferred from the lurching movements alone, and while the lurching movements may be

more suggestive of intoxication when combined with the location and time of night, the combined

weight of these circumstances is not so much greater than the aggregation of their individual weights

that it allows for a rational inference of intoxication. Time of day, by itself, is “owed virtually

no weight” as a factor in determining reasonable suspicion. State v. Thirty Thousand Six Hundred

Sixty Dollars & No/100, 136 S.W.3d 392, 400 (Tex. App.—Corpus Christi 2004, pet. denied).

Similarly, location is generally “an insufficient basis for a rational inference that would lead to a


                                                   9
reasonable suspicion.” Id. at 401.6 Furthermore, Thomas’s testimony that the lurching movements

led him to suspect that Foster was intoxicated does not necessarily establish that this suspicion was

reasonable. See Richardson v. State, 39 S.W.3d 634, 640 (Tex. App.—Amarillo 2000, no pet.)

(holding that detention was not justified despite officer’s testimony that he stopped vehicle going

substantially slower than speed limit on suspicion that driver was intoxicated); see also Garcia,

43 S.W.3d at 530 (stating that “reasonable suspicion is an objective determination” and that while

“we give almost total deference to the trial court in determining what the actual facts are, . . . we

review de novo whether those facts are sufficient to give rise to reasonable suspicion”).

               We find the present case to be similar to the facts before us in State v. Guzman,

240 S.W.3d 362, 365 (Tex. App.—Austin 2007, pet. ref’d), in which an officer initiated a traffic stop

based on a driver spinning his vehicle’s tires at a downtown intersection at night. In affirming the

trial court’s order granting the driver’s motion to suppress because the detention was not justified

by reasonable suspicion, the majority declined “to hold that an officer may lawfully detain on

suspicion of intoxication any driver who is seen by the officer to spin a tire at a downtown

intersection at night.” Id. at 368. Likewise, we today decline to hold that an officer may lawfully

detain on suspicion of intoxication any driver who is seen making lurching movements at a

downtown intersection at night. On that basis, we conclude that reasonable suspicion did not exist

to justify Foster’s detention for DWI. Because the trial court erred in not suppressing the evidence

resulting from the illegal detention, we sustain Foster’s sole issue on appeal.



       6
         We note also that the proximity of the downtown Austin police station to the intersection
where the incident occurred would seem to diminish the weight of this factor.

                                                 10
                                          CONCLUSION

                Based on the totality of the circumstances, we hold that reasonable suspicion did not

exist to justify Foster’s detention. Therefore, the trial court erred in denying Foster’s motion to

suppress. We reverse the trial court’s order and remand for further proceedings consistent with

this opinion.



                                              _____________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson;
  Dissenting Opinion by Justice Puryear

Reversed and Remanded

Filed: August 6, 2009

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