IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 094-01

 

BRUCE WAYNE CORBIN, Appellant


v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

GREGG COUNTY


Price, J., delivered the opinion of the Court in which Meyers, Johnson, Keasler, and Holcomb, J.J., joined. Womack, J., concurred. Cochran, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion in which Hervey, J., joined.

O P I N I O N

In this case, we determine whether the Court of Appeals misapplied the community caretaking exception to warrantless seizures where the police officer saw the appellant's car cross onto the shoulder of the road for twenty feet while traveling at fifty-two miles per hour. Because we do not believe that the officer's belief that the appellant was tired and in need of assistance was objectively reasonable, we will reverse. (1)

FACTS

During the early morning hours of January 27, 1999, Officer James Benson was parked near the intersection of Interstate 20 and the Old Gladewater Highway in Gregg County. Around 1:00 a.m., Benson saw the appellant's car approaching. The appellant's car crossed over the side stripe and onto the shoulder of the road. Benson estimated that the appellant traveled approximately twenty feet before returning to his lane of traffic. Benson used his radar gun and clocked the appellant traveling at fifty-two miles per hour; the speed limit was sixty-five. (2) Benson believed that the appellant had committed the offense of failing to maintain a single lane. (3) In addition, because of the time of night, the relatively low speed of travel, and the appellant's crossing onto the shoulder of the road, Benson was concerned that the appellant might be drunk or sleepy and thus, in need of assistance. (4) Benson pulled out and followed the appellant for a little over a mile. As he followed the appellant, Benson saw no traffic violations or indications that the appellant was either drunk or fatigued. Benson then turned on his overhead lights, and the appellant pulled over without difficulty.

Benson then approached the car and asked the appellant to step out. Benson patted down the appellant for weapons and felt something on the appellant's back. The appellant explained that he was wearing a back-brace for a back injury. Benson asked if the appellant had any prior arrests, and the appellant replied that he had not. Benson was preparing a written warning when dispatch informed him that the appellant had an extensive criminal history involving illegal narcotics. Benson then returned to the appellant and discovered that the back-brace was really a package of cocaine taped to the appellant's back.

The appellant was arrested and later filed a motion to suppress. After a hearing, the trial court overruled the motion without entering findings of fact or conclusions of law. After a bench trial, the trial court found the appellant guilty of possession of cocaine with intent to deliver and sentenced him to thirty years' confinement and a $10,000 fine.

On appeal, the appellant argued that the trial court erred in denying his motion to suppress. Corbin v. State, 33 S.W.3d 90, 91 (Tex. App.-Texarkana 2000). The Court of Appeals first held that there was insufficient evidence in the record to indicate that the appellant failed to maintain his lane in an unsafe manner. Id. at 94. Therefore, the stop of the appellant was unreasonable under Transportation Code section 545.060(a). Id. The Court of Appeals, however, did find the community caretaking exception, as explained in Wright v. State, 7 S.W.3d 148, 252 (Tex. Crim. App. 1999), to be applicable. Id. In applying the four Wright factors, the Court of Appeals held that, even though the nature and level of distress exhibited was low, Benson could have reasonably concluded that the appellant required assistance. Id. at 94-95. The Court of Appeals held that the motion to suppress was properly denied because Benson was exercising his community caretaking function. Id. at 95. We granted review to determine whether the Court of Appeals properly concluded that the community caretaking exception was applicable to this case. We will reverse.

DISCUSSION

When reviewing a motion to suppress, we give great deference to a trial court's determination of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the trial court does not file findings of fact, we assume that the trial court made implicit findings that support its ruling, so long as those implied findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We will review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of a witness. Guzman, 955 S.W.2d at 89. We examine the evidence in the light most favorable to the trial court's ruling. Ross, 32 S.W.3d at 855.

In this case, the Court of Appeals upheld the trial court's ruling pursuant to Wright and the community caretaking exception. Corbin, 33 S.W.3d at 95. After reviewing our decision in Wright, we think that our Fourth Amendment analysis was incomplete. We take this opportunity to expound on the Wright analysis.

To begin, it is well settled that not all encounters with the police implicate the Fourth Amendment's protection against unreasonable seizures. (5) Florida v. Bostick, 501 U.S. 429, 434 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). "So long as a reasonable person would feel free to disregard the [officer] and go about his business," a police officer may approach and ask an individual questions, including whether that individual requires assistance, without implicating the Fourth Amendment. Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104. Here, however, because Benson stopped the appellant's automobile, the appellant was seized within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).

A seizure under the Fourth Amendment must be objectively reasonable in light of the particular circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411 (1997); Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Whether a stop is reasonable depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law enforcement." Wilson, 519 U.S. at 411; Prouse, 440 U.S. at 654-55; United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). A seizure based on reasonable suspicion or probable cause will generally be reasonable. Whren v. United States, 517 U.S. 806, 818 (1996); Terry, 392 U.S. at 21-23. But, even without reasonable suspicion or probable cause that an offense has been committed, a police officer may reasonably seize an individual through the exercise of his community caretaking function. Wright v. State, 7 S.W.3d at 151-52; see also United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993).

Because a police officer's duties involve activities other than gathering evidence, enforcing the law, or investigating crime, the Supreme Court has characterized a police officer's job as encompassing a community caretaking function. Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Wright, 7 S.W.3d at 151. 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." Wright, 7 S.W.3d at 151 (emphasis added). The community caretaking function, however, is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady, 413 U.S. at 441. 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. See Wright, 7 S.W.3d at 151 ("[W]e must determine if [the officer] acted reasonably when he stopped the vehicle out of concern for the welfare of the appellant . . .") (emphasis added). Professor LaFave explains, "[I]t apparently remains open to defendants, whenever the challenged seizure or search is permitted without probable cause because of the special purpose being served, to establish a Fourth Amendment violation by showing the action was in fact undertaken for some other purpose . . ." Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 1.4 (3d ed. 1996) (discussing the Supreme Court's Whren decision). Here, the record reflects that Officer Benson was concerned that both the appellant was tired and that the appellant may be drunk. The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that Officer Benson was primarily motivated by community caretaking concerns. See Ross, 32 S.W.3d at 855.

Once it is determined that an officer is primarily motivated by his community caretaking function, it must then be determined whether the officer's belief that the defendant needs help is reasonable. Wright, 7 S.W.3d at 151-52. In evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and 4) to what extent the individual, if not assisted, presented a danger to himself or others. Id. at 152.

Because the purpose of the community caretaking exception is to allow an officer to "seize" and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight. The greater the nature and level of distress exhibited, the more likely the police involvement will be a reasonable exercise of the community caretaking function. This is not to say that the weight of the first factor alone will always be dispositive. In fact, the remaining three factors help to give more definition to the first factor. A particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors. (6)

Here, the first factor, the nature and level of the distress exhibited, is extremely low. According to Benson's testimony, the distress exhibited by the defendant was his traveling for twenty feet at fifty-two miles per hour over the side stripe of the road. An individual traveling at fifty-two miles per hour will travel twenty feet in less than one second. Given the frequency with which the average driver occasionally strays over the side stripe of the road, we have difficulty even characterizing this behavior as "distress." Cf. Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.-Austin 1998, pet. ref'd) ("We cannot turn a blind eye to common sense and experience. There are myriad reasons why the wheels of a vehicle might drift slightly across a lane marker a single time."). This is especially true in this case because after Benson saw the appellant cross over the side stripe, cross back over, and then pass Benson, Benson followed the appellant for over a mile before stopping him. In that distance, Officer Benson observed no other behavior that could indicate fatigue or a traffic violation. This factor weighs against the stop.

Concerning the second factor, the location of the appellant was near the intersection of an interstate and a highway. Although the Court of Appeals characterized the location as a "somewhat isolated stretch of interstate highway," we find nothing in the record that describes the location other than as an intersection. Corbin, 33 S.W.3d at 94. Since there is nothing in the record indicating that this area is isolated with little traffic and no business or houses nearby, it cannot support the ruling. At best, it is a neutral factor.

The third factor weighs in favor of the stop. The appellant was alone in the automobile and there is no indication that he had access to assistance independent of Officer Benson.

The fourth factor, the extent to which the individual presented a danger to himself or others if not assisted, weighs against the stop. If the appellant was having difficulty staying awake, there is a risk that he could fall asleep and lose control of his automobile. This would present a danger not only to himself, but to any other driver on the road. But, the distress exhibited by the appellant ended in less than one second. After the appellant crossed back over onto the road, he drove normally and did not appear to be a danger to himself or other drivers.

Applying the Wright factors, we conclude that Officer Benson's exercise of his community caretaking function was not reasonable. Although it certainly would be reasonable for a police officer to stop an individual who appears to be falling asleep while driving, the level of distress exhibited here does not reflect such an individual. The appellant crossed over the side stripe for only twenty feet and then continued to drive normally. If the appellant was sleepy or falling asleep while driving, a reasonable person would expect to see more indications of fatigue. Here, we have one isolated incident of crossing the side stripe for less than one second. After the incident, the appellant drove in a normal fashion and did not present a risk to himself or other drivers. Although it is true that the appellant was traveling under the speed limit, we do not think that his speed was so low that a reasonable person would believe that the appellant was in distress. Cf. Ortega v. State, 974 S.W.2d 361, 364 (Tex. App.-San Antonio 1998, pet. ref'd) (holding that the stop of the defendant's automobile was justified because the defendant was traveling in the early morning hours at a speed of between eighteen and twenty miles per hour, less than half the posted speed limit of fifty miles per hour). The level of distress exhibited by the appellant was simply too minor for Benson to reasonably believe that the appellant was falling asleep and in need of assistance. Cf. Lebron v. State, 35 S.W.3d 774, 776-77 (Tex. App.-Texarkana 2001, pet. ref'd) (police officer reasonably exercised community caretaking function when the officer, responding to a reported accident, discovered the defendant driving very slowly, eventually coming to a stop on the road, with two flat tires). Accordingly, the appellant's interest in being free from arbitrary government interference outweighed Officer Benson's exercise of his community caretaking function. See Brignoni-Ponce, 422 U.S. at 878; King, 990 F.2d at 1560; Wright, 7 S.W.3d at 151-52.

CONCLUSION

The Court of Appeals upheld the trial court's ruling based on a police officer's community caretaking function. That ruling, however, cannot be upheld under this theory because a belief that the appellant was in need of assistance is unreasonable. The Court of Appeals's judgment is reversed, and this case is remanded to that court for a harm analysis under Texas Rule of Appellate Procedure 44.2.



Delivered June 5, 2002.

Publish.

1. The actual ground for review reads: "Did the Court of Appeals misapply Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999) and the community caretaking function to justify the traffic stop in this case?"

2. Benson testified that traveling fifty-two miles per hour did not constitute a traffic violation.

3. Tex. Transp. Code 545.060(a).

4. Also, Benson testified that if the appellant had veered onto the shoulder further down the road, the appellant may have struck concrete columns at the overpass.

5. The Fourth Amendment is made applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 654-55 (1961).

6. Circumstances unique to a particular case, of course, may also swing the balance one way or the other.