                                   NO. 07-02-0359-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                    JANUARY 2, 2003

                         ______________________________


                         THE STATE OF TEXAS, APPELLANT

                                             V.

                           WILLIAM L. WARFEL, APPELLEE


                       _________________________________

          FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

              NO. 2002-479,457; HONORABLE DRUE FARMER, JUDGE

                         _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1


      In this interlocutory appeal, the State challenges the trial court’s suppression of oral

statements made by appellee William Warfel to a Lubbock police officer. Agreeing with

the State’s challenge, we reverse the trial court’s suppression order.



      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
        The incident giving rise to appellee’s prosecution occurred shortly after midnight on

April 12, 2002. Lubbock police received a report of an individual with dark, curly hair and

wearing dark shorts, fleeing from the scene of a domestic disturbance. Lubbock Police

Officer Terry Farley was responding to the call when he saw a man meeting the suspect’s

description walking across a parking lot about two blocks from the scene of the

disturbance. Farley drove into the parking lot and approached the man, later determined

to be appellee. As he neared appellee, Farley asked through his open car window, “where

are you going?” Appellee stopped, turned toward the officer and raised his hands over his

head.


        Farley stopped his car and got out of it to speak with appellee, who started walking

toward him. Farley asked, “what is going on this evening?” It is undisputed that appellee

responded, “you know, just fighting with the old lady.” Because of the reply, Farley,

convinced appellee was the person he had been advised was involved in the disturbance,

took appellee into custody, and returned with him to the scene of the disturbance to

continue his investigation.


        Appellee was charged with the misdemeanor offense of assault. At the pretrial

hearing on appellee’s motion to suppress the statement to Farley, Farley and appellee

testified. At the conclusion of the hearing, the trial court found appellee was “in custody”

for the purposes of the Fifth Amendment to the Federal Constitution and article 38.22 of

the Code of Criminal Procedure. He also found that at the time in question, Farley did not



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intend to elicit an incriminating response but, the court concluded, regardless of the

officer’s intent, because appellee’s answer was incriminating, his statement must be

suppressed.


       In a single issue, the State asserts the trial court erred in its action because

appellee was not in custody at the time he made the admission, nor was he being

interrogated at the time. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp.

2003) (authorizing State’s appeal from an order suppressing evidence in certain

circumstances).


       In Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App. 1996), the court explicated the

standards for determining when a statement is the result of custodial interrogation. In

doing so, it pointed out that a person is only “in custody” if, under the surrounding

circumstances, a reasonable person would believe their freedom of movement was

“restrained to the degree associated with a formal arrest.” Id. at 254. The “reasonable

person” referred to in the standard presumes an innocent person. Florida v. Bostick, 501

U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The determination of custody is

not formulaic, but must be made on an ad hoc basis after considering all of the objective

circumstances. Dowthitt, 931 S.W.2d at 255. In Stansbury v. California, 511 U.S. 318,

324, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), the Supreme Court held that the subjective

belief of the police is irrelevant unless that intent is expressed or otherwise manifested to

the suspect.



                                             3
       The Dowthitt court enumerated four general situations which may amount to

“custody.” They are: 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 the officer does not tell the suspect that they

are free to leave. Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d 622, 629

(Tex.Crim.App. 1985).


       The first two of the factors discussed in Dowthitt are not applicable here because

the undisputed evidence establishes that appellee was not physically restrained until after

he made the statement in question, nor did Officer Farley tell him he was not free to leave.

The fourth factor is also not applicable here. Probable cause to arrest exists when the

facts and circumstances within the officer’s knowledge, and of which he has reasonably

trustworthy information, are sufficient in themselves to warrant a man of reasonable

caution in the belief that a particular person has committed or is committing an offense.

Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991). In this case, Officer Farley

testified that he simply approached appellee because he met a vague description given

by another officer of a man with dark shorts and curly hair. That information was not

sufficient to constitute probable cause to arrest appellee. Farley also averred that it is not

unusual for people to jokingly put their hands up when being approached by police, so he

did not attribute any particular significance to that act.


                                              4
       It was only after appellee responded that he had been fighting with his wife that

Farley had sufficient information to support a reasonable belief that appellee was the

suspect in connection with the domestic disturbance. Thus, because the trial court

suppressed the statement made before that time, the fourth situation discussed by the

Dowthitt court is not applicable.


       The third situation, i.e., when law enforcement officers create a situation that would

lead a reasonable person to believe his freedom of movement has been significantly

restricted, is the one we need to discuss here. The cases discussing this type of situation

make it clear that the reviewing court is to look at more than simply a restriction on

freedom of movement. That obligation is illustrated by the analysis applied by the Court

in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In that

case, the Court addressed the question if a routine traffic stop by police amounted to

“custody” within the purview of its decision in Miranda v. Arizona, 364 U.S. 436, 444, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966). In the course of its discussion, the Court recognized

that any traffic stop “significantly curtails the ‘freedom of action’ of the driver and

passengers,” and constitutes a “seizure” within the meaning of the fourth amendment.

Berkemer, 468 U.S. at 436. However, in the course of its discussion, it emphasized that

a restriction of one’s freedom of movement does not preclude consideration of the context

of the restriction. Id. at 437. The Court noted that an ordinary traffic stop is brief in nature

as contrasted to a stationhouse interrogation. It also observed that the public nature of a

traffic stop distinguishes it from the type of “police dominated” atmosphere considered in


                                               5
Miranda. Id. at 438-39. The Court concluded that a traffic stop is comparable to a Terry2-

type investigative stop and that drivers (and passengers) detained during an ordinary

traffic stop are not “in custody” for the purposes of Miranda. Id. at 439.


       The Berkemer Court’s reference to Terry is instructive in our determination of this

question. As did the officer in Terry, Farley had no more than a suspicion that appellee

was the person suspected of committing an offense in the area. Farley approached

appellee to confirm or dispel his suspicion. Thus, his stop and inquiry were reasonably

related in scope to the justification for their initiation. See United States v. Brignoni-Ponce,

422 U.S. 873, 883, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The intrusion here was less

than that involved in Terry, where the officer conducted a pat-down of the suspect’s body.

Terry, 392 U.S. at 6. Here, all the officer did was engage appellee in what was a facially

innocuous conversation. In the Berkemer case, the Court noted there was no “suggestion

in our opinions that Terry stops are subject to the dictates of Miranda.” Berkemer, 468

U.S. at 440. The stop we are considering here was clearly a Terry-type stop. Thus, the

Berkemer explication is dispositive of appellee’s argument. The State’s issue is sustained.

The trial court’s suppression order is reversed and the cause remanded to the trial court

for further proceedings in accordance with this opinion.


                                                   John T. Boyd
                                                   Senior Justice

Do not publish.


       2
           Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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