
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


M E M O R A N D U M   O P I N I O N

	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
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
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. 

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
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,
(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) 
	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
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
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
(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
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.   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.    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
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.  

