                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 THE STATE OF TEXAS,                                            No. 08-15-00176-CR
                                                §
                        Appellant,                                    Appeal from
                                                §
 v.                                                             County Court at Law
                                                §
 BALTAZAR SANCHEZ URIAS,                                       of Pecos County, Texas
                                                §
                        Appellee.                                     (TC # 19978)
                                                §

                                          OPINION

       In this interlocutory appeal, the State complains that the trial court suppressed certain

evidence in a DWI prosecution. We affirm the trial court’s decision in part, but reverse in part.

                                     FACTUAL SUMMARY

       On the evening of March 13, 2013, DPS Trooper Colby Jones was patrolling a farm to

market road in Pecos County. He met up with Baltazar Urias, who was traveling in the opposite

direction. Urias failed to dim his pickup truck headlights, which caused Trooper Jones to

immediately make a U-turn and activate his overhead lights to initiate a traffic stop. Texas law

prohibits leaving high beam headlights on within five hundred feet of an on-coming vehicle.

TEX.TRANSP.CODE ANN. § 547.333(c)(1)(A)(West 2011). Urias proceeded some distance before

turning onto a side road, and he then pulled off onto the shoulder.

       Trooper Jones immediately smelled alcohol when Urias rolled down his window. Jones
informed Urias of the reason for the stop, obtained license and insurance information, asked

Urias where he was coming from, and also asked how much Urias had had to drink. Urias

replied that he had two to three beers and had come from “the shop.” Trooper Jones had Urias

step out of his pickup and stand in front of the DPS cruiser. The trooper again asked Urias how

much and what he had to drink. Urias responded that he had two to three “Bud Lights.”

Trooper Jones asked whether he would find any open containers if he looked in the vehicle, to

which Urias responded there “shouldn’t be.”

        Trooper Jones then searched Urias’ pickup without obtaining permission to do so. He

found a partially consumed bottle of whiskey between the driver’s side seat and door. The

trooper then inquired again about the kind and size of the beer Urias had consumed, and how

long it had been since his last drink. He asked Urias to rate his intoxication on a scale of one to

ten, to which Urias responded “three.” He then had Urias perform the standardized field sobriety

test. Based on the number of positive clues from that test, Trooper Jones arrested Urias for DWI

with an open container.1

        The entire event was recorded on the DPS vehicle’s dash-cam. The device begins

recording and captures everything that occurs from two minutes before the overhead lights are

turned on, and here it continued to record until Urias was taken to jail. Trooper Jones carried an

audio recording device that also documents the conversations he had with Urias.

        Urias filed a motion to suppress any physical evidence seized up until the time of the

arrest. He separately filed a motion to suppress the videotape of the search, including the oral

statements made on the videotape. Trooper Jones was the only witness to testify at the hearing.

1
   Driving while intoxicated is a Class B misdemeanor which generally carries a minimum term of confinement of
72 hours. TEX.PEN.CODE ANN. § 49.04(b)(West Supp. 2015). When the person operating the motor vehicle has an
open container of alcohol in the person’s immediate possession, the minimum term of confinement is increased to
six days. Id. at §49.04(c).


                                                      2
The dash-cam video was also admitted into evidence. The trial court granted the motion and its

ruling is embodied in eight findings of fact:

       1. The Court finds that Trooper Jones lawfully stopped the Defendant
       BALTAZAR SANCHEZ URIAS in Pecos County on a public road for failing to
       dim his lights within 500 feet as required by law.

       2. The Court finds that Trooper Jones detected the smell of alcohol when the
       Defendant rolled his truck window down and on the Defendant’s breath after the
       Defendant had exited his vehicle.

       3. The Court finds that the Defendant admitted to Trooper Jones that he had
       consumed two or three cans of Bud Light.

       4. The Court finds that the Defendant denied that there were any open containers in
       his automobile.

       5. The Court finds that Defendant did not consent to the search of the vehicle by
       Trooper Jones and that the search was a warrant less [sic] search.

       6. The Court finds that during the search Trooper Jones found a bottle of whiskey
       hidden in the interior of the vehicle.

       7. The Court finds that the search violated the Defendant’s 4th Amendment right
       under the U.S. Constitution because officer [sic] did not have sufficient
       trustworthy facts amounting to probable cause to search the vehicle.

       8. The Court further finds that the whiskey bottle should be suppressed due to this
       violation. The Court further finds that the remaining portions of the video
       including statements made by the Defendant and the video showing the Defendant
       performing the field sobriety tests should be and are suppressed as the “fruit of the
       poisonous tree.

       The State filed then filed this appeal. We start with the framework for analyzing a ruling

on a motion to suppress.

                                       STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Crain

v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). That discretion is tested under a bifurcated

standard of review as articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See

Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Krug v. State, 86 S.W.3d 764, 765


                                                3
(Tex.App.--El Paso 2002, pet. ref’d). Under that bifurcated standard, we give almost total

deference to the trial court’s resolution of questions of historical fact and of mixed questions of

law and fact that turn on the weight or credibility of the evidence. Arguellez v. State, 409

S.W.3d 657, 662 (Tex.Crim.App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 913

(Tex.Crim.App. 2011). We review de novo mixed questions of law and fact that do not turn on

credibility and demeanor. Arguellez, 409 S.W.3d at 662. We also review de novo whether the

totality of the circumstances is sufficient to support an officer’s reasonable suspicion of criminal

activity. Arguellez, 409 S.W.3d at 663; Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.

2004).

                                        ISSUES ON APPEAL

         The State brings two issues for our resolution. In the first, it claims the trial court erred in

suppressing the search of Urias’ vehicle, including the bottle of whiskey found near the driver’s

seat. In the second, the State urges that the trial judge erred in suppressing the remaining

portions of the video/audio tape, including that part which shows the field sobriety test.

                                THE SEARCH OF THE VEHICLE

         The State’s first issue focuses on the search of the vehicle and the suppression of the

whiskey bottle. The Fourth Amendment protects against unreasonable searches and seizures by

government officials.        U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24

(Tex.Crim.App. 2007). A motorist’s privacy interest in their vehicle, while less substantial than

the home, is nevertheless important and deserves constitutional protection. Arizona v. Gant, 556

U.S. 332, 344-45, 129 S.Ct. 1710, 1720, 173 L.Ed.2d 485 (2009).

         A search conducted without a warrant is per se unreasonable subject to a few specifically

defined and well-delineated exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.

2003). One of those is the “automobile exception.” Neal v. State, 256 S.W.3d 264, 282

                                                    4
(Tex.Crim.App. 2008). Under this exception, officers may conduct a warrantless search of a

vehicle if there is probable cause to believe that it contains contraband. Keehn v. State, 279

S.W.3d 330, 335 (Tex.Crim.App. 2009). If the automobile exception applies, then the police

may search “every part of the vehicle and its contents that may conceal the object of the search.”

Neal, 256 S.W.3d at 282, quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72

L.Ed.2d 572 (1982). “Probable cause to search exists when there is a ‘fair probability’ of finding

inculpatory evidence at the location being searched.” Neal, 256 S.W.3d at 282.

        The State points to five circumstances supporting its claimed probable cause: Urias’

failure to dim his headlight; the length of time it took Urias to stop; the smell of alcohol; Urias’

admission of some drinking; and his self-rating as a “three” on a one to ten intoxication scale.2

While we might agree that these observations support Trooper Jones transforming a routine

traffic stop into a DWI investigation, none of the factors uniquely suggests the presence of an

open container in the vehicle itself. The circumstances only suggest that Urias imbibed alcohol,

not that he did so in his vehicle. He might have consumed the alcohol anywhere.

        We compare these facts to Harper v. State, 349 S.W.3d 188, 192 (Tex.App.--Amarillo

2011, pet. ref’d), where an officer noticed the odor of alcohol on the driver and was affirmatively

told by a passenger about an open container in the vehicle. The odor of alcohol, plus an

admission of some kind of open contained in the vehicle, were sufficient to support probable

cause to search the car. In contrast, Urias denied that there were any open containers in the

vehicle (when asked, he said in perhaps a colloquial manner, that “there shouldn’t be” any). The



2
   We note the self-rating occurred after the search was complete and accordingly it cannot support the probable
cause for the search. And for much the same reason, we do not consider another exception--search incident to
arrest--because the search occurred well before the arrest was made and Urias was some distance from his vehicle.
See Gant, 556 U.S. 332, 343, 129 S.Ct. 1710, 1719 (authorizing police to search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at
the time of the search).

                                                        5
trooper smelled the odor of alcohol when he spoke to Urias both while in the vehicle, and when

Urias was outside the vehicle. He never smelled alcohol when the pickup was unoccupied. The

odor would give the trooper cause to further investigate Urias, but not the pickup itself. Because

the trooper had no unique basis to believe that an open container was in the vehicle, we agree

with the trial court that the search of the pickup was improper. The trial court thus properly

suppressed the whiskey bottle, and that portion of the video that depicts the search of the vehicle

(and the statements made during that portion of the tape).

             THE REMAINING VIDEO AND APPELLANT’S STATEMENTS

       The trial court also suppressed “the remaining portion of the video showing the search of

the Defendant’s Truck forward including the field sobriety test and all statements made by the

Defendant . . . . “ We first define what was actually suppressed and focus on four distinct pieces

of evidence: the video from the point of the search forward; the field sobriety test itself; all

statements made by Urias during the field sobriety test; and those statements he made from his

arrest until he was finally booked into jail. As literally written, the trial court’s order applies to

particular segments of the video, defined to include the segments showing the field sobriety test

and segments showing the statements made by Urias. That literal construction would leave

untouched the results of the field sobriety test itself. We interpret the order in this literal fashion

for three reasons.

       First, the trial court’s finding of fact more clearly limit the excluded evidence to the

videotape alone, and not the results of the field sobriety test:

       The Court further finds that the whiskey bottle should be suppressed due to this
       violation. The Court further finds that the remaining portions of the video
       including statements made by the Defendant and the video showing the Defendant
       performing the field sobriety tests should be and are suppressed as the ‘fruit of the
       poisonous tree.’



                                                   6
The finding thus focuses on the video, and not the underlying events being depicted. Moreover,

had the trial court really intended to suppress the actual results of the field sobriety test, then it

would have suppressed the State’s exhibit one, which contains the written results of that test. 3

Second, the underlying motion never sought to suppress the results of the field sobriety test

itself, and we assume the trial judge did not grant more relief than was requested. Finally,

Trooper Jones, even without finding the bottle of whiskey, had sufficient reasonable suspicion to

ask Urias to perform the field sobriety test. The trooper smelled alcohol on Urias’ breath, and

Urias had admitted to recently drinking. Urias’ hedged his answers to how much he had been

drinking (two or three, and when asked if had more, he said “I don’t think so.”). The trooper

also noted that it took Urias a bit longer than usual to pull over. Existing Texas law would

support that these factors alone were sufficient to ask Urias to perform a field sobriety test. We

would not interpret the trial court’s order as ignoring established case law.

        Traffic stops are analyzed for Fourth Amendment purposes under the two part inquiry

articulated in Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See

Kothe, 152 S.W.3d at 63. Under this standard, we first examine whether or not the officer’s

decision to stop the vehicle was justified at its inception. Whren v. United States, 517 U.S. 806,

809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)(such a seizure is constitutionally “reasonable

where the police have probable cause to believe that a traffic violation has occurred.”) Next, we

determine whether or not the officer’s subsequent actions were reasonably related in scope to the

circumstances that caused him to stop the vehicle in the first place. Illinois v. Caballes, 543 U.S.

405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). In this case, the trial court expressly found

3
    This construction also follows from the “series-qualifier canon” which provides that “[w]hen there is a
straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive
modifier normally applies to the entire series.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 147 (2012). Under this canon, the term “video” is the prepositive that modifies and
thus limits everything in the series that follows it.

                                                        7
that the original justification for the stop--failure to dim the headlights--was a proper basis for

the initial stop.

        Under the second Terry prong, an investigative stop can last no longer than is necessary

to effectuate the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004).

In other words, if a driver is stopped for some traffic violation, once the police officer issues the

citation, the motorist should promptly be released unless the officer develops a reasonable

suspicion of additional criminal activity in the meantime. Id. But when the police develop

reasonable suspicion of some additional criminal activity in the course of a stop and before the

purpose of the stop is fulfilled, a continued detention may be justified until the new suspicion has

been confirmed or dispelled. See Perales v. State, 117 S.W.3d 434, 439 (Tex.App.--Corpus

Christi 2003, pet. ref’d). Here, the trial judge expressly found that Trooper Jones smelled

alcohol and that Urias admitted to drinking some quantity of alcohol. The video shows this

occurred before the traffic stop for the moving violation was resolved. Trooper Jones therefore

had reasonable suspicion to continue the traffic stop to investigate whether Urias had been

driving under the influence.

        This continued detention must be carefully tailored to its underlying justification.

Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983). The

scope of the detention must be temporary and last no longer than necessary to effectuate the

purposes of the stop. Id. Furthermore, the investigative methods employed should be the least

intrusive means reasonably available to verify or dispel the officer’s suspicions within a short

period of time. Id. When a motorist exhibits outward signs of intoxication, the field sobriety test

is a reasonable and least intrusive means to investigate that potential crime.




                                                 8
         In Arthur v. State, 216 S.W.3d 50, 55-56 (Tex.App.--Fort Worth 2007, no pet.) a police

officer pulled over a vehicle that was weaving out of its lane of travel and speeding. The driver

admitted that she had been drinking, smelled of alcohol, was slow to roll down her window, and

had slurred speech. Those circumstances were found sufficient to give the officer reasonable

suspicion to detain the driver further and to administer a field sobriety test. Similarly in State v.

Rudd, 255 S.W.3d 293, 300 (Tex.App.--Waco 2008, pet. ref’d) the court found the odor of

alcohol and the driver’s admission of drinking earlier that day sufficient to merit the

additional intrusion of a field sobriety test. See also Reynolds v. State, 163 S.W.3d 808, 810-11

(Tex.App.--Amarillo 2005), aff’d, 204 S.W.3d 386 (Tex.Crim.App. 2006)(officer’s knowledge

of nearby festival, odor of alcohol, bloodshot eyes, and admission of some drinking sufficient to

warrant field sobriety test); Stoutner v. State, 36 S.W.3d 716, 719 (Tex.App.--Houston [1st Dist.]

2001, pet. ref’d)(strong odor of alcohol, admission of drinking sufficient to warrant field sobriety

test).

         It seems clear to us that the results of the field sobriety test itself were not the subject of

the suppression order, (and if it they were, the trial court would have erred in excluding them).

That conclusion makes the State’s second issue an easy call. The only remaining question, then,

is whether the act of videotaping the field sobriety test and what followed was somehow caused

by, or related to, the search of the vehicle such that it became the “fruit of the poisonous tree.”

We find no such connection between the two.

         Urias argued below, as he does here, that the balance of the videotape and any later

statements he made are “fruits of the poisonous tree” and must also be excluded. Under that

doctrine, evidence derived directly or indirectly from illegal governmental activity is excluded as

trial evidence. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d



                                                   9
441 (1963). The court in Crosby v. State, however, reminds us that “not all indirectly acquired

evidence must be suppressed. Essentially, assuming that a Fourth Amendment violation did

occur, the only indirectly acquired evidence that should be suppressed is that which was acquired

by an exploitation of the unconstitutional intrusion.” 750 S.W.2d 768, 780 (Tex.Crim.App.

1987).

         This view comports with Article 38.23 which requires the exclusion of evidence

“obtained by an officer or other person in violation of any provisions of the Constitution or laws

of the State of Texas.” TEX.CODE CRIM.PROC.ANN. art. 38.23(a)(West 2005).               The word

“obtained” in the statute requires a causal connection between the illegality and the evidence

sought to be excluded. Roquemore v. State, 60 S.W.3d 862, 872 (Tex.Crim.App. 2001). As the

party seeking to exclude the evidence, Urias carried the burden to show that casual connection.

Pham v. State, 175 S.W.3d 767, 774 (Tex.Crim.App. 2005)(“Under Texas case law, it is required

that a causal connection be established, and we hold that the defendant, as the moving party

wishing to exclude the evidence, is responsible for the burden of proving this connection.”).

         Proof of this causal connection is distinct from the concept of “attenuation.”         The

attenuation doctrine allows the State to argue that if the causal chain is indeed established, the

chain may be broken by some intervening event. State v. Jackson, 464 S.W.3d 724, 731-33

(Tex.Crim.App. 2015), citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d

416 (1975). The State carries the burden under the attenuation doctrine. Monge v. State, 315

S.W.3d 35, 40 (Tex.Crim.App. 2010).

         In this case, for whomever carried the burden, the evidence conclusively established that

the illegal search had nothing to do with the videotaping of the field sobriety test, nor the

statements made during the field sobriety test. The recording of the field sobriety test and what



                                                10
followed, was not dependent of the search of the pickup. An undisputed fact on this record is

that the video started recording well before the search ever began. The dash-cam saves to the

device everything that occurred two minutes before the cruiser’s flashers were engaged, and it

continued to run until the trooper took Urias to jail.                 And because the video was already

recording, the later search of the vehicle had no connection to the video, other that it happened to

be included on a segment of the tape. There was no testimony or evidence from the video, that

the search impacted the decision to perform the field sobriety test, or otherwise affected whether

the events which followed were recorded or not. Nor do we find any later events on the video

which relate to the search itself, other than a brief segment after the arrest where Trooper Jones

poured out the whiskey and looked into a cooler in the back of the pick-up truck.4

         We reach the same conclusion regarding the portion of the order suppressing any

statements that Urias made after the search. We have carefully reviewed the audio portion of

State’s Exhibit Two and find no statements regarding the search of his pickup, or the whiskey

bottle after the search was completed. All of the statements following the search up to the point

of Urias’ arrest, pertain to the trooper’s instructions on performing the field sobriety test, or

Urias’ claim that he had a physical impairment which affected his ability to perform the test.

None was in anyway related to the search, and thus not “obtained” as a result of the illegal search

of the pick-up.5


4
   We do not fault the trial court’s order to the extent it would exclude that portion of the tape, found between the
time stamp 28:00 and 28:26.
5
  We express no opinions as to the post-arrest statements starting at time stamp 24:24 of the video up to time stamp
53:20 when a Miranda warning was first given. Although lack of Miranda warnings were raised in one of Urias’
suppression motions, the issue was not developed below, and no fact findings address that distinct issue. We do
note that several courts have rejected the notion that Miranda warnings are required prior to the administration of
the field sobriety tests. Pennsylvania v. Muniz, 496 U.S. 582, 603, 110 S.Ct. 2638, 2653, 110 L.Ed.2d 528
(1990)(responses to carefully scripted instructions on performing the test were not testimonial); Gassaway v. State,
957 S.W.2d 48, 51 (Tex.Crim.App. 1997)(having driver count or recite the alphabet did not violate the privilege
against self-incrimination); Arthur v. State, 216 S.W.3d 50, 54 (Tex.App.--Fort Worth 2007, no pet.).

                                                         11
       Accordingly, we affirm the portion of the trial court’s order suppressing the physical

evidence seized during the search of Urias’ vehicle, and the portion of the video (and audio) that

depicts the search and results of the search. We reverse the portion of the order which also

suppresses the video and audio depiction of what followed after the search up until the point of

the arrest. We reverse the trial court’s order regarding the balance of the video/audio depicting

what transpired from the point of the arrest to the end of the tape, but only the extent the order to

suppress was based on the illegal search of the vehicle. If Urias raises any other challenge to that

segment of the video, the trial court can resolve that issue based on a proper record.


July 6, 2016
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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