
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


O P I N I O N 
		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.
		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) 

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
(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
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)
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
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
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
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.
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
Publish	

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