Thursday, August 18, 2011

DWI Law - Texas Declares Stop of Car Illegal Under Caretaking Exception

Texas gets a second one right in less than one month! In Alford v. State of Texas, --- S.W.3d ----, 2011 WL 3505698 (Tex.App.-Dallas) Wylie police officer Jeff Callan was on bicycle patrol with another officer at approximately 12:45 a.m. when they pulled into a church parking lot to rest. About 100 yards away, Callan saw a vehicle pull up and stop at a dead end street through a very wide alleyway behind a Jack in the Box restaurant, which was open at the time. Callan saw the passenger door open, and the passenger “kind of turned sideways half of their body was out and was leaning over saying something to the driver.” Callan observed the vehicle for “between five to seven minutes.” Callan could hear the passenger and the driver talking but could not hear what they were saying, and “it appeared that they were talking very loudly for us to hear it that far away.” Callan said he was going to “ride over there and see what's going on.” As the officers approached, the passenger got out of the vehicle and changed places with the driver. When Callan reached the vehicle, he saw through the passenger window that the gear shift was in drive and made eye contact with the driver, appellant, who started to drive away. Callan asked appellant if she would “mind putting it in park” and said he wanted to talk to her for a second. Callan asked if everybody was okay and said he noticed they were sitting there for a while. Appellant said they “were just changing positions” and had come from a place where they had watched a friend play in a band. At that point, Callan noticed a strong odor of an alcoholic beverage coming from inside the vehicle and asked appellant how much she had to drink. Appellant said she had “four big beers.” Callan then began a DWI investigation and administered field sobriety tests, which indicated to Callan that appellant was intoxicated. Callan arrested appellant for DWI.

On appeal from the denial of a motion to suppress, the appellate court was asked to review the determination that the stop was proper under the community caretaking doctrine. Discussing Texas' version of the doctrine, the court stated as follows:

"As part of an officer's duty to “serve and protect,” an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. The community caretaking function, however, is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.. As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose. Here, the record reflects that Callen was concerned that “there was a disturbance going on or possibly a sick person in the vehicle.” The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that Callan was primarily motivated by community caretaking concerns." (citations omitted)

The court then turned to whether, even if the officer was motivated primarily by caretaking concerns, whether such motivation was reasonable. Describing the factors to be employed and applying them to the facts, the court found in favor of the defendant:

"Here, the first factor, the nature and level of the distress exhibited, is almost non-existent. Appellant “kind of turned sideways half of their body was out and was leaning over saying something to the driver,” according to Callan. Callan “didn't know” if there was “a disturbance going on or possibly a sick person in the vehicle.” Callan heard appellant and her sister talking, but he did not testify he heard a dispute or a call for help or any other indication of distress. Appellant got out of the car, walked around it, and got in the driver's seat, but Callan did not testify appellant or her sister exhibited any distress as they changed positions in the car. This factor weighs against the stop. Concerning the second factor, the location of appellant was on a dead-end street where “you don't see a lot of traffic” outside an open Jack in the Box restaurant. In fact, the location was being patrolled by Callan and his fellow officer. This factor weighs against the stop. The third factor also weighs against the stop. Appellant was with her sister and had access to an open restaurant if she had needed assistance. The fourth factor, the extent to which appellant presented a danger to herself or others if not assisted, weighs against the stop. Appellant merely sat in a car talking and walked around the car and took the driver's seat. There is no evidence that appellant exhibited any behavior that would show her to be a danger to herself or others in getting out of her car and walking around it. Applying the Wright factors, we conclude Callan's exercise of his community caretaking function was not reasonable. Accordingly, appellant's interest in being free from arbitrary government interference outweighed Callan's exercise of his community caretaking function. Under these circumstances, the trial court erred in denying appellant's motion to suppress on the basis Callan was acting within his community caretaking function." (citations omitted)

Editor's note: The appellate court got it write (at least the second part about reasonableness of concern).

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