                                                                              ACCEPTED
                                                                          04-15-00395-CR
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                    8/28/2015 11:47:10 AM
                                                                           KEITH HOTTLE
                                                                                   CLERK

               CAUSE NO. 04-15-00395-CR 


                                                         FILED IN
       IN THE FOURTH DISTRICT COURT OF           4th
                                             APPEALS COURT
                                                       
     OF APPEALS
                                                  SAN ANTONIO, TEXAS
                 SAN ANTONIO, TEXAS 
            08/28/15 11:47:10 AM
                                                   KEITH E. HOTTLE
                                                          Clerk
                   THE STATE OF TEXAS
                         Appellant,

                             v. 


                    JAMES RAY JUNEK 

                        Appellee.


                   BRIEF OF APPELLANT 



            Appeal from the County Court-at-Law 

                     Kerr County, Texas 

             Trial Court Cause No. CR14-0l46 

                The Honorable Susan Harris 



                                    JOSEPH A. SOANE, III
                                    Texas Bar No. 24002970
                                    Asst. Kerr County Attorney
                                    700 Main Street, Ste. BAl03
                                    Kerrville, Texas 78028
                                    (830) 792-2220 (P)
                                    (830) 792-2228 (f)

NO ORAL ARGUMENT
             IDENTITY OF PARTIES AND COUNSEL 




Appellant:              The State of Texas

                        Mr. Joseph A. Soane, III (trial/appellate counsel)
                        Asst. Kerr County Attorney
                        700 Main Street, Ste. BA-1 03
                        Kerrville, TX 78028




Appellee / Defendant:   James Ray Junek

                        Mr. Darren Umphrey (trial! appellate counsel)
                        246 W. San Antonio St., Suite 201
                        New Braunfels, TX 78130




                                    1
                                   TABLE OF CONTENTS 


IDENTITY OF PARTIES AND COUNSEL .................................................... i 


TABLE OF CONTENTS ............... '" ........................................................ ii 


INDEX OF AUTHORITIES ..................................................................... iii 


STATEMENT OF THE CASE ................................................................... v 


STATEMENT REGARDING ORAL ARGUMENT ......................................... vi 


ISSUES PRESENTED ........................................................................... vii 


STATEMENT OF FACTS ........................................................................ 1 


SUMMARY OF THE ARGUMENT ............................................................ 3 


ARGUMENT ........................................................................................ 4 


        A. 	 STANDARD FOR REVIEW .........................................................4 


        B. 	 THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLEE WAS 

             DETAINED WHEN APPELLEE PULLED OFF OF THE ROAD AND 

             PARKED OF HIS OWN VOLITION ................................................5 


        C. 	 THE TRIAL COURT ERRED IN CONCLUDING THAT DEPUTIES DID 

             NOT HAVE SUFFICIENT CAUSE FOR AN INVESTIGATORY 

             DETENTION ............................................................................ 8 


        D. THE TRIAL COURT ERRED BY CONCLUDING THE OFFICERS' 

           SUBJECTIVE INTENT OR BELIEF CONTROLLED OVER OBJECTIVE 

           FACTS IN DETERMINING REASONABLE SUSPICION FOR AN 

           INVESTIGATIVE DETENTION ................................................. 10 




PRAYER AND CONCLUSION ................................................................ 11 


CERTIFICATE OF SERVICE ................................................................... 12 





                                                 11
                                  INDEX OF AUTHORITIES 


Guzman v. State. 955 S.W.2d 85, 87 (Tex.Crirn.App. 1997) ................................. .4 


Miller v. Fenton 474 U.S. 104, 106 (1985) ..................................................... ..4 


Ornelas v. United States. 517 U.S. 690 (1996) ................................................ ..4 


State v. Elias, 339 S.W.3d 667, 673 (Tex. Crirn. App. 2011) .............................. .4, 8 


Tucker v. State, 369 S.W.3d 179, 184 (Tex.Crirn.App.2012) ............................. .4, 5 


State v. Mendoza, 365 S.W.3d 666,669 (Tex.Crirn.App.2012) .............................. .4 


Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crirn.App.l997) (en bane) ...................... .4 


Martinez v. State, 348 S.W.3d 919,922-23 (Tex.Crirn.App.2011)....................... 5, 11 


State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crirn.App.2006) ................................. .5 


Gonzales v. State, 369 S.W.3d 851,854 (Tex.Crirn.App.2012) .............................. 8 


Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crirn.App.2000) .............................5 


State v. Iduarte, 268 S.W.3d 544,548 (Tex.Crirn.App.2008) .................................5 


State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crirn.App.2007) ................................5 


State v. Larue, 28 S.W.3d 549,553 (Tex.Crirn.App.2000) .................................... 5 


Francis v. State, 922 S.W.2d 176, 178 (Tex.Crirn.App.l996) ................................ .5 


Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382,2386, 115 L.Ed.2d 389 (1991) ..5,6 


Harper v. State, 217 S.W.3d 672, 674 (Tex.App.-Arnarillo 2007, no pet.) .................5 


Florida v. Rodriguez, 469 U.S. 1,5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) .............6 


Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 

L.Ed.2d 292 (2004) ..................................................................................6 


Crain v. State, 315 S.W.3d 43, 49 (Tex.Crirn.App.2010) ......................................6 


Immigration and Naturalization Service v. Delgado, 466 U.S. 210,216,104 S.Ct. 1758, 

80 L.Ed.2d 247 (1984) ..............................................................................6 





                                                  III
Brendlin v. California, 551 U.S. 249,255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ......6 


State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex.Crim.App.2008) ......................... 6 


State v. Stevenson, 958 S.W.2d 824, at 829 (Tex.Crim.App 1997) ...... '" .................. 7 


Stoutner v. State, 36 S.W.3d 716, at 719-20 (Tex.App. Hou.1st Dist.- 2001) ..............7 
                      I
                                                                                                                  t
                                                                                                                  !
Arthur v. State, 216 S.W.3d 50,55 (Tex.App.-Fort Worth 2007, no pet.) ...................7 


Reynolds v. State, 163 S.W.3d 808, 810-11 (Tex.App.-Amarillo 2005), affd, 204 S.W.3d 

386 (Tex.Crim.App.2006) ...........................................................................7 


Dowthitt v. State, 931 S.W.2d 244,254-55 (Tex.Crim.App., 1996) .........................7
                                                                                                                  I
                                                                                                                  Ii 
 



Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App.l983) ...................................8 


Berkemerv. McCarty, 468 U.S. 420, at 440, 104 S.Ct. 3138 (1984), at 3150 ...............8 


Esco v. State, 668 S.W.2d 358,360-61 (Tex.Crim.App.l982) ................................9 


Illinois v. Gates, 462 U.S. 213, 234--35, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527,545
(1983)..................................................................................................9 


Derichsweiler v. State, 348 S.W.3d 906, (Tex.Crim.App. 2011) ..............................9 


Adams v. Williams, 407 U.S. 143, 147,92 S.Ct. 1921,32 L.Ed.2d 612 (1972) ............ 9 


United States v. Ruidiaz, 529 F.3d 25 (1st Cir.2008) ...........................................9 


United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir.2003) .................. 9 


United States v. Kaplansky, 42 F.3d 320,327 (6th Cir.1994) ................................. 9 


Hoag v. State, 728 S.W.2d 375,380 (Tex.Crim.App.1987) ................................... 10 


United States v. Hensley, 469 U.S. 221,232-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)
.......................................................................................................... 10 


Illinois v. Andreas, 463 U.S. 765,771 n. 5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) ... .10 


Terry v. Ohio, 392 U.S. 1, at 21-22,88 S.Ct. 1868,20 L.Ed.2d 889 (1968) ................ 10 


Ford v. State, 158 S.W.3d 488, at 492-93 (Tex.Crim.App.2005) ............................ 10 





                                                     iv
                           STATEMENT OF THE CASE 


       This is a driving while intoxicated prosecution. On January 16,2014, Kerr County

Sheriff s Office Deputies Amin Malek and Joe Morris investigated citizen complaints

regarding reckless driving. Following the deputies' investigation, Appellee was charged

by Information with the offense of driving while intoxicated.       Appellee filed his

suppression motion on December 11,2014, which the trial court granted on May 6, 2015,

following a hearing. Appellant timely filed its Notice of Appeal along with Request for

Findings of Fact and Conclusions of Law.




                                           v
                STATEMENT REGARDING ORAL ARGUMENT 


        Appellant The State of Texas does not request oral argument. Appellant believes
that the issues presented are not novel and does not believe oral argument would assist
this honorable Court in understanding the issues presented.




                                          vi
                                 ISSUES PRESENTED 


1. 	 The trial court erred in concluding that Appellee was detained when Appellee
     pulled off of the road and parked of his own volition.

2. 	 The trial court erred in concluding that deputies did not have sufficient cause for
     an investigatory detention.                                                           I
3. 	 The trial court erred by concluding the officers' subjective intent or belief
     controlled over objective facts in determining reasonable suspicion for an
                                                                                           t
     investigative detention.


                                                                                           I
                                                                                           1



                                                                                           I
                                                                                           ?




                                        Vl1
                               CAUSE NO. 04-15-00395-CR 



               IN THE FOURTH DISTRICT COURT OF APPEALS 

                         SAN ANTONIO, TEXAS 



                                  THE STATE OF TEXAS
                                        Appellant,

                                                   v. 


                                    JAMES RAY JUNEK 

                                        Appellee.


                                 BRIEF OF APPELLANT 



TO THE HONORABLE COURT OF APPEALS:

        NOW COMES Appellant THE STATE OF TEXAS and submits its Brief of

Appellant. I

                                    STATEMENT OF FACTS

        At approximately 9:22 a.m. on January 16, 2014, Kerr County 911 received five

(5) calls regarding a reckless driver. (CRI, page 3, Exhibit 1) Four (4) of the 911 callers

were identified by name or name and telephone number as follows: Cy Murphy 337-281­

8973, Juan Vasquez, Cheryl Lauler, and Julie Beck 608-498-7675. The location provided

by the 911 callers was IH-IO eastbound from the 486 mile marker to the 505 exit,


         The clerk's record will be cited by the abbreviation "CR," followed by page numbers (e.g., CR
10). Because there are multiple volumes of the clerk's record filed, each volume will be identified by the
respective roman numeral (e.g., CRl). The reporter's record will be cited by the abbreviation "RR,"
followed by page and line numbers (e.g., RR 2,8).


                                                    1

depending on the caller. The description of the driving behavior of the white Chevrolet

Tahoe or Suburban varied but included: swerving or driving all over the road, almost hit

the caller's truck, crossing the shoulder, caller was afraid to pass, may be having an

emergency or "drunk or what," got traffic blocked, fixing to have a wreck, and acts like

he's drunk. (CRI, page 3, Exhibit 1).

       Deputy Sheriff Joe Morris was dispatched to the area of IH-lO to look for the

white Chevrolet Tahoe or Suburban and Deputy Amin Malek, a thirteen (13) year veteran

police officer, was dispatched to assist. (RR 22,8; 23, 2) Deputy Malek waited on IH-lO

at mile marker 503 and observed a vehicle matching the description pass his location.

Deputy Malek pulled out near the white Chevrolet and observed the people in nearby

vehicles point to the white Chevrolet. (RR 23, 22; 24, 3). While Deputy Malek was

behind the white Chevrolet, the driver exited IH-IO at the 505 mile marker and pulled

over in the 900 block of Harper Road. (RR24, 15-16). Deputy Malek did not activate

any of the emergency equipment of his patrol unit. (RR24, 10; 24, 22-25). Deputy

Malek did not use any audible sirens nor horns, nor did he wave to try and make the

driver of the white Chevrolet pull over. (RR 25, 1-5). This is corroborated by the

Appellee, who testified Appellee was not aware there was a patrol unit present until after

he was executing his tum off of the roadway in the 900 block of Harper Road. (RR 50,

5-8). The Appellee testified he pulled off of IH-l 0 in order to take a nap, not in response

to an assertion of authority. (RR49, 3-4; 50,21).

       Deputy Malek approached and spoke with the Appellee and observed the

Appellee to have slow and slurred speech.         (RR25, 14).    Deputy Malek asked the

Appellee if he had been drinking and told the Appellee he could smell alcohol when he




                                             2

did not. (RR3 3, 9-15). Deputy Malek testified that doing so was a tactic he used to get

people to tell the truth. (RR33, 18). Deputy Malek stepped back and spoke with Deputy

Morris as they approached the Appellee and discussed the approach as a welfare check.

(RR55, 10). Deputy Morris spoke with the Appellee and observed him to have slurred

speech. (RR61, 21).      Deputy Morris also observed the Appellee was not answering

questions in a normal fashion and was slow to answer. (RR61 , 21-23). Based on the 911

calls regarding the operation of the vehicle, their observations of the Appellee's slurred

and slow speech, and slow answers Deputy Morris requested that the Appellee participate

in field sobriety tasks. (RR66 , 10-13; 67, 12-15). The trial court found the deputies had

unlawfully detained the Appellee and further found the deputies had no reasonable

suspicion to detain the Appellee.



                          SUMMARY OF THE ARGUMENT

       The trial court erred in concluding Appellee to be detained when Appellee pulled

off of IH-1O of his own volition.        Even though the deputies possessed reasonable

suspicion to detain the Appellee to investigate, the deputies did not assert their authority

and engaged in a consensual encounter with the Appellee. The consensual encounter

revealed additional evidence which further justified an investigatory detention.          The

witnesses that called 911 and identified themselves provided inherently reliable

information upon which the deputies could have relied in performing an investigatory

detention. The deputies' subjective belief they were conducting a welfare check is not

controlling, as objective facts provided justification for the investigative detention.




                                              3

                                      ARGUMENT 


A.     STANDARD FOR REVIEW 


       When reviewing a trial court's ruling on a motion to suppress, the appellate court

first determines the appropriate standard of review. Guzman v. State. 955 S.W.2d 85, 87

(Tex.Crim.App. 1997). On a "mixed question of law and fact," the reviewing court

decides how much deference to afford a trial court's ruling by determining "which

judicial actor is in a better position to decide the issue." Id. ; Miller v. Fenton. 474 U.S.

104, 106 (1985). While the reviewing court should afford great deference to inferences

reached by the trial judge, the court must review determinations of reasonable suspicion

and probable cause de novo. Guzman, 955 S.W.2d at 87; Ornelas v. United States. 517

U.S. 690 (1996).

       The appellate courts may review de novo "mixed questions of law and fact" not

falling within this category. State v. Elias, 339 S.W.3d 667, 673 (Tex. Crim, App. 2011).

       When reviewing a trial court's ruling on a motion to suppress, the overarching

standard of review guiding appellate courts is whether the trial court abused its discretion.

Tucker v. State, 369 S.W.3d 179, 184 (Tex.Crim.App.2012); Montanez v. State, 195

S.W.3d 101, 108 (Tex.Crim.App.2006). But see, e.g., State v. Mendoza, 365 S.W.3d 666,

669 (Tex.Crim.App.2012) (stating that a judge's factual findings should be reviewed for

an abuse of discretion while its legal rulings should be reviewed de novo); Guzman v.

State, 955 S.W.2d 85, 89 (Tex.Crim.App.l997) (en banc) ("[A]n abuse of discretion

standard does not necessarily apply to 'application of law to fact questions' whose

resolution do not turn on an evaluation of credibility and demeanor."). Under an abuse of

discretion standard, the reviewing Court must determine whether the trial court's ruling




                                             4

was so arbitrary that it is outside the zone of reasonable disagreement. Martinez v. State,

348 S.W.3d 919, 922-23 (Tex.Crim.App.2011); State v. Dixon, 206 S.W.3d 587, 590

(Tex.Crim.App.2006). The reviewing court must consider all evidence in the record,

viewing the evidence in the light most favorable to the trial court's ruling. Gonzales v.

State, 369 S.W.3d 851, 854 (Tex.Crim.App.2012); Tucker, 369 S.W.3d at 185;

Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). The trial court's ruling

will be upheld if it is correct under any applicable theory of law. State v. Iduarte , 268

S.W.3d 544, 548 (Tex.Crim.App.2008); State v. Stevens, 235 S.W.3d 736, 740

(Tex.Crim.App.2007).

B. 	    THE TRIAL COURT ERRED IN CONCLUDING THAT
        APPELLEE WAS DETAINED WHEN APPELLEE PULLED OFF
        OF THE ROAD AND PARKED OF HIS OWN VOLITION

        As best as the State can determine, the trial court concluded that Deputies Malek

and Morris did not possess reasonable suspicion to detain the Appellee when the

Appellee pulled off of IH-10 of his own accord.

        There are three recognized categories of interaction between the police and

citizens: encounters, investigative detentions and arrests. State v. Larue, 28 S.W.3d 549,

553    (Tex.Crim.App.2000) (quoting Francis v.         State,   922   S.W.2d    176,   178

(Tex.Crim.App.1996). An encounter occurs when an officer approaches a person in

public to ask questions. Florida v. Bostick, 501 U.S. 429,434, 111 S.Ct. 2382,2386, 115

L.Ed.2d 389 (1991); Harper v. State, 217 S.W.3d 672,674 (Tex.App.-Amarillo 2007, no

pet.). An officer need not show any particular level of suspicion for such an encounter

because the citizen is under no obligation to continue speaking with the officer. Bostick,

501 U.S. at 434, 111 S.Ct. at 2386; Larue, 28 S.W.3d at 553; Harper, 217 S.W.3d at 674.




                                            5

       Consensual police-citizen encounters do not implicate Fourth Amendment

protections. Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382; see Florida v. Rodriguez, 469

U.S. 1,5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984). Law enforcement is free to stop and

question a fellow citizen; Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382, no justification is

required for an officer to request information from a citizen. Hiibel v. Sixth Judicial

District Court of Nevada, 542 U.S. 177, 185,124 S.Ct. 2451,159 L.Ed.2d 292 (2004)

And citizens may, at will, terminate consensual encounters. Crain v. State, 315 S.W.3d

43,49 (Tex.Crim.App.2010). Even when the officer did not communicate to the citizen

that the request for information may be ignored, the citizen's acquiescence to an official's

request does not cause the encounter to lose its consensual nature.       Immigration and

Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758,80 L.Ed.2d 247

(1984). Courts consider the totality of the circumstances surrounding the interaction to

determine whether a reasonable person in the defendant's shoes would have felt free to

ignore the request or terminate the interaction. Brendlin v. California, 551 U.S. 249,255,

127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). If it was an option to ignore the request or

terminate the interaction, then a Fourth Amendment seizure has not occurred. Id. The

surrounding circumstances, including time and place, are taken into account, but the

officer's conduct is the most important factor when deciding whether an interaction was

consensual or a Fourth Amendment seizure. State v. Garcia-Cantu, 253 S.W.3d 236, 244

(Tex.Crim.App.2008).

       While Deputy Malek was behind the white Chevrolet, the driver exited IH-I0 at

the 505 mile marker and pulled over in the 900 block of Harper Road. (RR24, 15-16).

Neither deputy used any audible sirens nor horns, nor waved or utilized any other signal




                                             6

or assertion of authority to compel the Appellee to pull over. (RR 25, 1-5). The Appellee

was not even aware there was a patrol car present until after he was executing his turn off

of the roadway in the 900 block of Harper Road. (RR 50,5-8). The Appellee testified he

pulled off of IH-lO in order to take a nap, not in response to an assertion of authority.

(RR 49, 3-4; 50,21). These facts are undisputed. Appellee further testified that he had

driven off of the roadway and in such a fashion that other cars were honking their horns.

(RR50, 1-3).

       During the consensual contact, the deputies both observed the Appellee to have

slow and slurred speech (RR25, 14; 61, 21).        Deputy Morris further observed the

Appellee was not answering questions in a normal fashion and was slow to answer.

(RR61,21-23). Based on everything Deputy Morris observed, including the information

relayed by dispatch, Deputy Morris transitioned from a consensual contact to an

investigatory detention. (RR60, 23-25; 60, 1; 67, 12-15)

       The answers to the officer's questions and other observations by the officer may

then provide reasonable suspicion to believe that the offense of DWI has occurred. State

v. Stevenson, 958 S.W.2d 824, at 829 (Tex.Crim.App 1997); Stoutner v. State, 36 S.W.3d

716, at 719-20 (Tex.App. Hou.1st Dist.- 2001). If so, the encounter escalates to an

investigatory detention during which the officer can conduct field sobriety tests. See

Arthur v. State, 216 S.W.3d 50, 55 (Tex.App.-Fort Worth 2007, no pet.); Reynolds v.

State, 163 S.W.3d 808, 810-11 (Tex.App.-Amarillo 2005), affd, 204 S.W.3d 386

(Tex.Crim.App.2006); Stoutner, 36 S.W.3d at 719-20. The courts have recognized that

subsequent events may cause a noncustodial encounter to escalate into custodial

interrogation.   Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex.Crim.App., 1996).




                                            7

Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App.1983).          See also Berkemer v.

McCarty, 468 U.S. 420, at 440, 104 S.Ct. 3138 (1984), at 3150.

       An officer has reasonable suspicion when he has "specific, articulable facts that,

combined with rational inferences from those facts, would lead him reasonably to

conclude that the person detained is, has been, or soon will be engaged in criminal

activity." Elias, 339 S.W.3d at 674. Based on the evidence observed during the initial

consensual contact, combined with the information provided by the 911 callers, there

were sufficient specific articulable facts to warrant further detention for investigative

purposes.

       C. THE TRIAL COURT ERRED IN CONCLUDING THAT
DEPUTIES DID NOT HAVE SUFFICIENT CAUSE FOR AN INVESTIGATORY
DETENTION

       In the alternative, should the Court believe that the initial contact with the
                                                                                              t
Appellee was not a consensual contact, there was sufficient justification for an
                                                                                              l

investigatory detention of the Appellee.
                                                                                              t
                                                                                              t
                                                                                              t

       As stated, five (5) 911 calls were made to report the Appellee's reckless driving.

Four (4) of the 911 callers were identified by name or name and telephone number.             l
                                                                                              I
(CRI, page 3, Exhibit 1). The callers provided a description of the Appellee's vehicle, its

location and a description of the reckless driving they observed. When Deputy Malek
                                                                                              I
pulled out near the Appellee's white Chevrolet in the location reported by the 911 callers,
                                                                                              I!
he observed the people in nearby vehicles point to the white Chevrolet. (RR 23, 22; 24,
                                                                                              I
                                                                                              I
3). Thus, the information provided by the identified 911 callers was corroborated by the      J

deputies.
                                                                                              \
                                                                                              i

                                                                                              i
                                                                                              I
                                            8                                                 I
                                                                                              J
       When police receive infonnation from a private citizen whose only contact with

police is a result of having witnessed a criminal act committed by another, the credibility

and reliability of the information is inherent. Esco v. State, 668 S.W.2d 358, 360-61

(Tex.Crim.App.l982). An infonnant's detailed description of wrongdoing, along with a

statement that the infonnant actually saw the reported event, entitles the infonnant's tip to

greater weight than otherwise might be the case. See Illinois v. Gates, 462 U.S. 213, 234­

35, 103 S.Ct. 2317,2330, 76 L.Ed.2d 527, 545 (1983).

       In Derichsweiler v. State, 348 S.W.3d 906, (Tex.Crim.App. 2011), the detaining

officer need not be personally aware of every fact that objectively supports a reasonable

suspicion to detain; Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d

612 (1972), rather, "the cumulative infonnation known to the cooperating officers at the

time of the stop is to be considered in detennining whether reasonable suspicion exists."

A 911 police dispatcher is ordinarily regarded as a "cooperating officer" for purposes of

making this detennination. It matters not that the dispatcher did not pass all of these

details along to the responding officers. In assessing reasonable suspicion, vel non, a

reviewing court looks to the totality of objective infonnation known collectively to the

cooperating police officers, including the 911 dispatcher. Id at 915. (United States v.

Ruidiaz, 529 F.3d 25 (1st Cir.2008) (officer could rely on infonnation passed on by 911

dispatcher in fonnulating reasonable suspicion); United States v. Fernandez-Castillo, 324

F.3d 1114, 1118 (9th Cir.2003) ("Although the Highway Patrol dispatcher distilled and

paraphrased [the] infonnation" supporting reasonable suspicion, court considered it part

of the collective knowledge of the police); United States v. Kaplansky, 42 F.3d 320,327

(6th Cir.1994) ( "where officers are told to investigate a situation without being told all of




                                              9

the facts justifYing investigation, the court must look beyond the specific facts knmvn to

the officers on the scene to the facts kno\\,TI to the dispatcher."); Hoag v. State, 728

S.W.2d 375, 380 (Tex.Crim.App.l987); United States v. Hensley, 469 U.S. 221, 232-33,

105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (officer may detain suspect based upon police

bulletin so long as issuing entity has reasonable suspicion to justifY detention); Illinois v.

Andreas, 463 U.S. 765, 771 n. 5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) ("where law

enforcement authorities are cooperating in an investigation, the knowledge of one is

presumed shared by all.").

       The location and description of the Appellee's vehicle, as well as descriptions of

the driving behavior, were provided to the dispatchers by identified witnesses. This

information was corroborated by Deputy Malek, who observed the Appellee's vehicle

which matched the description in the area reported and observed by the people in nearby

vehicles, all pointing to the Appellee.

     D.   THE TRIAL COURT ERRED BY CONCLUDING THE OFFICERS'
SUBJECTIVE INTENT OR BELIEF CONTROLLED OVER OBJECTIVE
FACTS IN DETERMINING REASONABLE SUSPICION FOR AN
INVESTIGATIVE DETENTION


       After Deputy Morris' subsequent arrival at the 900 block of Harper Road, and

after Deputy Malek had spoken with the Appellee, Deputy Malek stated to Deputy Morris

that they would handle the contact as a welfare check. (RR37, 9-11; 55, 10). In its

findings of fact and conclusions of law, the trial court focused on the deputies' subjective

intent regarding their belief that they were conducting a welfare check on the Appellee as

a community caretaking function. However, the standard is an objective one.

Ohio, 392 U.S. 1, at 21-22,88 S.Ct. 1868,20 L.Ed.2d 889 (1968). We use an objective




                                             10 

standard when making this determination, disregarding the officer's subjective intent

unless it is manifested to the suspect. Martinez, 348 S.W.3d at 923; Ford v. State, 158

S.W.3d 488, at 492-93 (Tex.Crim.App.2005).

       Deputies Malek and Morris engaged in a consensual contact with the Appellee.

Due to facts provided by the 911 callers, coupled with evidence they personally observed,

the deputies possessed reasonable suspicion to investigate further. See STATEMENT

OF FACTS (supra). Regardless of the deputies' subjective belief, and even should this

Honorable Court find the initial contact with the Appellee was not consensual, there was

sufficient cause for an investigatory detention.



                             PRAYER AND CONCLUSION

       THEREFORE, Appellant THE STATE OF TEXAS respectfully requests that this

Honorable Court find that the trial court erred in granting Appellee's suppression motion,

overrule the trial court's Order, and remand this matter for a trial on the merits.


                                               Respectfully Submitted,



                                                   ~('C.f""'''.tS.~~
                                               J         A. SOANE, III
                                               Texas Bar No. 24002970
                                               Asst. Kerr County Attorney
                                               700 Main Street, Ste. BA-I03
                                               Kerrville, TX 78028
                                               (830) 792-2220 (p)
                                               (830) 792-2228 (f)
                                                      Attorneyfor the State ofTexas




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                           CERTIFICATE OF SERVICE 


      I hereby certify that on this 28 th day of August, 2015, a true and correct copy of
Appellant's BRIEF was served upon the following by the following method:


Mr. Darren Umphrey (trial counsel)                 Via Regular US Mail 

246 W. San Antonio St., Suite 201 

New Braunfels, TX 78130 





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