IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 1794-01

 

BRADLEY ROBERT DYAR, Appellant

v.


THE STATE OF TEXAS



ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
BASTROP COUNTY

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

The issue on this appeal is whether the appellant's warrantless arrest was made while the appellant was in a "suspicious place" and therefore, authorized under Article 14.03(a)(1) of the Texas Code of Criminal Procedure. The appellant was charged with driving while intoxicated. Before trial, the appellant moved to suppress the blood specimen, asserting that it was obtained pursuant to an illegal arrest. After a pre-trial hearing, the trial court denied the motion and the appellant entered a plea of nolo contendere. The Third Court of Appeals held that the arrest was legal and that the blood specimen taken pursuant to that arrest was untainted. Dyar v. State, 59 S.W.3d 713, 717 (Tex. App.-Austin 2001). We affirm.

FACTS

The appellant was in a one-car accident in Smithville, Texas, around midnight on New Year's Eve, 2000. The appellant, the lone occupant of the vehicle, was taken to Smithville Hospital before the police responded to the accident scene. After arriving at the scene of the accident, Trooper Thompson observed that the appellant's vehicle had left the road and landed upside down. Trooper Thompson went to the hospital emergency room to speak with the appellant about the accident. The appellant told the trooper that he had been partying in Austin for New Year's Eve and was attempting to drive back to Houston. The appellant admitted to drinking alcohol and driving. The trooper noticed that the appellant had slurred speech, red glassy eyes, a strong smell of alcohol, and that many of the appellant's answers were unintelligible.

Based on the above information, coupled with the details of the accident, Trooper Thompson believed that he had established probable cause. Trooper Thompson read the appellant his Miranda warnings and the DWI statutory warning and arrested the appellant for driving while intoxicated. The appellant consented to providing a sample of his blood.

The appellant was charged by information with driving while intoxicated. The appellant moved to suppress the blood specimen, claiming that it was obtained pursuant to an illegal arrest. The trial court denied the appellant's motion finding that, due to the facts and circumstances known to Trooper Thompson on that night, it was reasonable to conclude that the appellant had committed a breach of the peace. See Tex. Code Crim. Proc. art. 14.03(a)(1).

The appellant entered a plea of nolo contendere. The trial court sentenced the appellant to 180 days confinement in the county jail, but suspended the sentence and placed the appellant on community supervision for two years. The trial court ordered the appellant to pay a $750 fine, to pay restitution of $64.92, and to perform 100 hours of community service.

On appeal, the appellant noted that Article 14.03(a)(1) permits the warrantless arrest only of persons found in "suspicious places." Dyar v. State, 59 S.W.3d 713, 715 (Tex. App.-Austin 2001). The appellant argued that the hospital where he was arrested is not a "suspicious place." Ibid. Under the totality of the circumstances test, the Third Court of Appeals found that the accident scene coupled with Trooper Thompson's observations at the hospital constituted the "suspicious place" leading to the appellant's lawful arrest. Id. at 717.



DISCUSSION

Generally, a trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). However, the instant case presents us with a question of law based on undisputed facts, thus we perform a de novo review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The appellant claims that the Court of Appeals erred when it held that the appellant's warrantless arrest was authorized by Article 14.03(a)(1) of the Texas Code of Criminal Procedure. The article in question provides in part:

a) any peace officer may arrest, without warrant:

1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws.



Tex. Code Crim. Proc. art. 14.03(a)(1). Specifically, the appellant argues that the hospital where he was arrested was not a suspicious place under the above Article. Moreover, the appellant claims that the courts, in interpreting the above Article, have not given meaning to "suspicious places."

The Fourth Amendment to the United States Constitution imposes certain requirements upon arrests and other "seizures" of the person. George E. Dix & Robert O. Dawson, 40 Texas Practice 7.11, at 443 (2d ed. 2001). But there is no general requirement of a warrant, and there is nothing in the United States Supreme Court's prior case law indicating that, under the Fourth Amendment, a warrant is required to make a valid arrest. United States v. Watson, 423 U.S. 411, 416-17 (1976).

As for the Texas Constitution, this Court recently stated:

It is our holding that Article I, Section 9 of the Texas Constitution contains no requirement that a seizure or search be authorized by a warrant, and that a seizure or search that is otherwise reasonable will not be found to be in violation of that section because it was not authorized by a warrant.

This is not to say that statutes which require warrants for seizure or search may be ignored. Nor do we say that the issuance of a warrant by a neutral magistrate may not be a factor in the totality of circumstances by which we judge whether a seizure or search was reasonable.



Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998).



Texas statutory law imposes a number of requirements beyond those mandated by the federal constitution. George E. Dix & Robert O. Dawson, 40 Texas Practice 7.11, at 444 (2d ed. 2001). Most significantly, Texas law imposes a general requirement-subject to exception-that arrests be made pursuant to arrest warrants. Ibid. Because warrantless arrest are permissible only when authorized by statute, Texas statutory law deals extensively with officers' power to make warrantless arrests. Ibid.

The Texas Legislature has acknowledged that certain circumstances justify the use of arrest powers even though a warrant has not been issued. Texas courts have interpreted these statutes as requiring that a warrant be obtained before an arrest is made, unless one of the limited statutory exceptions applies. Randall v. State, 656 S.W.2d 487, 490 (Tex. Crim. App. 1983).

Chapter Fourteen of the Code of Criminal Procedure provides the authority for most lawful warrantless arrests in Texas. (1) These provisions of the Code are founded in the law of necessity, that is, the necessity for prompt action in order to arrest or detain the offender so as to prevent his escape. Honeycutt, 499 S.W.2d at 664 n.2.

For instance, an arrest may be made with probable cause when the authorities, be they peace officers or magistrates, have a reasonable belief that an offense is being committed in their presence. Tex. Code Crim. Proc. arts. 14.01, 14.02. Article 14.04 applies when officers receive information from a credible person that a felony has been committed and that the offender is about to escape so that there is no time to procure a warrant. Tex. Code Crim. Proc. art. 14.04.

Article 14.03 includes a number of exceptions. Tex. Code Crim. Proc. art. 14.03. Several of these permit, and sometimes require, officers to arrest without a warrant persons who have assaulted household members or violated the terms of a protective order. Id. art. 14.03(a)(2)-(4), (b). Other provisions deal with the authority of peace officers to arrest without a warrant outside their territorial jurisdiction. Id. art. 14.03(d), (g).

Article 14.03(a)(1), which is the article at issue here, allows a lawful warrantless arrest when officers discover a person in a suspicious place and under circumstances which reasonably show an offense has been or is about to be committed. Tex. Code Crim. Proc. art. 14.03(a)(1).

The predecessor of Article 14.03 originated in the Penal Code of 1856, and the language of the Article remains largely unchanged. (2) However, Texas legislative history is sparse with respect to the legislature's intent in passing this Article, and there is no definition of "suspicious places" given. Therefore, this Court is left to interpret Article 14.03(a)(1).

In Lara v. State, this Court handed down the test to be applied to an Article 14.03(a)(1) analysis. 469 S.W.2d 177, 179 (Tex. Crim. App. 1971). In that case, the defendant was convicted of possession of a controlled substance and sentenced to life in prison. Id. at 178. At trial, the officers testified that they observed the defendant running from a known drug house. Ibid. They further testified that they apprehended the defendant and performed an initial search, and upon apprehending the remaining individuals, they read the defendant his rights. Ibid. They then performed a second search of the defendant and found a capsule of heroin. Ibid. On appeal, this Court affirmed the conviction, holding that there was no reversible error where, under all the circumstances observed by the officers and the facts known by them, they had probable cause and the defendant's arrest was authorized under the Code of Criminal Procedure Article 14.03(a)(1). Id. at 179. This test has been repeated on many occasions by this Court and others.

In this case, the appellant was taken to the hospital before the police arrived at the scene of the accident. When Trooper Thompson arrived at the scene, he observed a single car accident where the appellant's vehicle had left the road and landed upside down. At the hospital, the trooper noticed that the appellant had slurred speech, red glassy eyes, a strong smell of alcohol and that many of the appellant's answers were unintelligible. Further, the appellant admitted to the trooper that he had been drinking and driving that night.

The Court of Appeals used the above factors in a totality of the circumstances test in deciding the legality of the appellant's warrantless arrest. The Court of Appeals held that Trooper Thompson reasonably inferred from those facts the alcohol was likely a factor in the accident. Dyar v. State, 59 S.W.3d 713, 716 (Tex. App.-Austin 2001). We agree.

The appellant, however, focuses on the hospital where the arrest occurred. He argues that a hospital is not a "suspicious place." The appellant asserts that under Johnson, a "suspicious place" is where the criminal activity occurred.

In Johnson, this Court held that, since the appellant's arrest at the felony crime scene within two hours of the offense was based upon probable cause, the arrest was authorized under Article 14.03(a)(1) of the Texas Code of Criminal Procedure. Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1987). The fact that the appellant was at the scene of the crime two hours after the murder, was a factor in finding that the appellant was found in a suspicious place and was also a factor in determining probable cause. Ibid.

In Johnson, this Court stated, "Initially, we note that few, if any places are suspicious in and of themselves. Rather, additional facts available to an officer plus reasonable inferences from those facts in relation to a particular place may arouse justifiable suspicion." Ibid.

In light of this, several examples of "suspicious places" are in order. In Hamel v. State, the appellant had been under surveillance for suspicion of burglary and narcotics trafficking. 582 S.W.2d 424, 426 (Tex. Crim. App. [Panel Op.] 1979). The appellant was arrested for shoplifting after his car was stopped due to suspicion of shoplifting and contraband was found in plain view. Ibid. This Court held that the defendant's car was a "suspicious place" under the facts because the appellant had previous convictions for selling heroin, for burglary , and was further known by the arresting officers as the subject of numerous burglary investigations. Ibid. The appellant's behavior as the "wheel man" in front of the store was suspicious, as was the hurried, nervous and watchful behavior of the appellant and his companions, all of whom went into the store empty handed, but emerged carrying objects in their hands. Ibid. Thus, this Court held that the arrest of the defendant was authorized under 14.03(a)(1). Id. at 426-27.

In the case of Douglas v. State, the appellant was arrested for murder after officers responded to calls of shots being fired and being advised by the caller of the appellant's location. 679 S.W.2d 790, 790 (Tex. App.-Fort Worth 1984, no pet.). The court held that the defendant's house was a suspicious place since (1) there was a dead body lying in the front yard, (2) the police were informed that the defendant was "in there [the house]," (3) defendant had been seen near the body and had put something in a car parked outside the house and (4) defendant had run back into the house upon being seen by a witness. Id. at 790-91. These circumstances were sufficient for the court to hold that the defendant, arrested inside his own home, was "in a suspicious place." Ibid.

In Thomas v. State, the appellant was arrested for burglary of a habitation with intent to commit theft. 681 S.W.2d 672, 673 (Tex. App.-Houston [14th Dist.] 1984, pet. ref'd). The court, while noting that "there is nothing inherently suspicious about members of a neighborhood walking down the street carrying something in broad daylight," held that since (1) one of the men was carrying a television set, (2) the men deposited some property in an abandoned house and (3) the arresting officer knew that at least one house in the neighborhood had been recently burglarized, the defendant was in a "suspicious place"- in this case, the street. Id. at 676.

Finally, in Sheffield v. State, the appellant was arrested for theft and possession of marijuana. 647 S.W.2d 413, 414 (Tex. App.-Austin), pet. ref'd per curiam, 650 S.W.2d 813 (Tex. Crim. App. 1983). The police were alerted to the presence of a suspicious person thought to have been involved in a theft from a dormitory on the previous day. Id. at 415. Two officers saw the appellant enter a building and exit at a rapid pace with a wallet and some dollar bills in his hand. Ibid. The appellant tried to conceal the wallet from the officers and then told the officers that he had found it in the grass. Ibid. The court held that the defendant's actions prior to an investigatory stop combined with the police officers' knowledge of a recent theft in the area by a man matching defendant's description was sufficient to justify an arrest under 14.03(a)(1) - holding that the defendant's location had become a "suspicious place." Ibid. See also Johnson v. State, 722 S.W.2d 417, 419-20 (Tex. Crim. App. 1987) (suspicions of police aroused by circumstances and actions of "maintenance man" who arrived to clean up mess from stabbing); Battles v. State, 626 S.W.2d 149, 150 (Tex. App.-Fort Worth 1981, no pet.) (defendant in "suspicious place" when found in complainant's house with gun in hand after call for discharge of firearms - defendant in view of police and homeowner directed police to defendant).

There are also several cases in which the courts have found a location not to be a "suspicious place." In Amores v. State, the appellant was arrested for possession of cocaine. 816 S.W.2d 407, 410 (Tex. Crim. App. 1991). On appeal, he claimed that the evidence was illegally seized through a warrantless arrest. Ibid. This Court held that the appellant's initial detention was an arrest, not an investigative stop because the officer blocked the appellant's car, drew his revolver at the appellant, ordered him from the car at gunpoint, ordered him to lie face down and told him he would be shot if he did not obey orders. Ibid.

The arresting officer testified that the facts known to him at the time of the arrest were the following: 1) the police received a telephone report of a burglary in progress involving a black male putting something in the trunk of a car; 2) the location of the reported burglary was at an apartment complex whose manager he knew to have called in numerous reports of criminal activity; 3) upon arriving at the scene within one minute of the report, he observed a black male sitting at the wheel of the car; 4) the car was backed into a parking space; 5) the black male was about to drive away as the officer drove into the lot; and 6) he knew that no "blacks" lived at these apartments at this time. Id. at 413-14. The officer further acknowledged that, at the time he arrived on the scene, no burglary was occurring from his viewpoint and that, until the point at which he found the weapon in the appellant's car, he did not observe any violation of the law. Id. at 414. This Court held that, where events are as consistent with innocent activity as with criminal activity, the arrest of a suspect based on those events is unlawful under Article 14.03(a)(1). Ibid.

In Hoag v. State, the officers placed the defendant under surveillance for the purpose of apprehending him in a burglary. 728 S.W.2d 375, 377 (Tex. Crim. App. 1987). Subsequently, the officers removed the defendant from his car at gunpoint and gave him Miranda warnings. Ibid. After searching the defendant's car, they found stolen jewelry and arrested the defendant for burglary of a habitation. Ibid. The defendant claimed that the jewelry was illegally seized through a warrantless arrest. Ibid.

In that case, the arresting officers observed the appellant park his car and enter an apartment complex. Id. at 379. When the appellant emerged from the complex, he was carrying a newspaper and a soft drink. Ibid. The officers saw the appellant take something out of his pocket and put it on the floor of the car. Ibid. Suspecting that a burglary had taken place, the officers checked the complex for signs that an apartment had been burglarized and found none. Ibid.

This Court held that since the officers checked the apartment complex and failed to find any signs of burglary, there were no other circumstances which could have reasonably shown that the appellant had been guilty of burglary. Id. at 379-80. Therefore, the appellant was not in a suspicious place and the warrantless arrest can not be upheld under Article 14.03(a)(1). Ibid. See also Lowery v. State, 499 S.W.2d 160, 164 (Tex. Crim. App. 1973) (court found that apartments were not a suspicious place because there was no evidence of how the officers knew appellant was at that location, nor was there evidence concerning his circumstances there); Holland v. State, 788 S.W.2d 112, 115 (Tex. App.-Dallas 1990, pet ref'd) (appellant's apartment was not a suspicious place where the appellant was found in the back room of his own apartment and no weapon was found, there were no stolen items present and no contraband was in sight).

The appellant claims that in interpreting Article 14.03(a)(1), the courts have not given meaning to "suspicious places." That is a misconception.

In Muniz v. State, this Court interpreted Article 14.03(a)(1) as the functional equivalent of probable cause. 851 S.W.2d 238, 251 (Tex. Crim. App.) cert. denied, 510 U.S. 837 (1993). That interpretation, as stated, is overly broad. Although probable cause that the defendant committed the crime is one part of the test, it is not the complete test. However, this Court did apply the correct analysis in that case. See generally, id. at 250-52.

In Muniz, the appellant was found hiding in his brother's closet. Id. at 251. A closet is not per se a suspicious place. Ibid. However, the facts showed that on the night the victim disappeared, the appellant had been seen near the scene of the murder following a woman who matched the victim's description, he was seen wearing dirty, wet clothes and showing wounds from a struggle, and he asked a witness to deny having seen him. Ibid. At this point, the appellant became a suspect in the murder. Ibid.

A highway patrolman went to the house of the appellant's brother. Ibid. The appellant's brother told the patrolman that he would turn over the appellant if he were in the house. Ibid. The appellant's wife, who was also at the house, nodded towards the bedroom and the appellant was found hiding in the closet. Ibid. This Court concluded that the appellant was arrested in a suspicious place. Ibid.

In its analysis, this Court first looked at all the facts and circumstances known to the police officer which would reasonably show that the defendant had committed a crime listed in Article 14.03(a)(1). Ibid. Next, this Court looked at all the facts and circumstances in relation to a particular place to show that the defendant was in a suspicious place. Ibid. In other words, this Court used the totality of circumstances test to find first, probable cause that the defendant committed the crime and second, to find that the defendant was in a suspicious place. Ibid. Many of the facts supported both conclusions. Ibid.

Then in Johnson, as discussed above, this Court held that, since the appellant's arrest at the felony crime scene within two hours of the offense was based upon probable cause, the arrest was authorized under Article 14.03(a)(1) of the Texas Code of Criminal Procedure. Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1987). Again, this holding does not state the complete test, but this Court applied the complete test.

In its analysis, this Court stated that the circumstances within the knowledge of a peace officer which reasonably show that a particular person is guilty of a crime is the functional equivalent of probable cause to believe that a particular person has committed a crime. Ibid. The appellant was arrested under circumstances which reasonably showed that he was guilty of the felony offense of murder. Ibid. The question then became what is a suspicious place for the purposes of Article 14.03. Ibid.

This Court found that the appellant was present at the crime scene within two hours of the murder, the appellant appeared nervous, he had blood on his pants and he admitted that the keys found at the murder scene belonged to him. (3) Id. at 419-20. The presence of the appellant was not contrived by law enforcement officials to circumvent the procurement of a warrant. Id. at 421. Therefore, this Court held that the appellant's arrest was authorized under Article 14.03(a)(1). Ibid.

In this case, Trooper Thompson arrived at the scene of the accident and was informed that the driver was taken to the hospital. This information would tend to make a hospital a suspicious place in which to seek the driver who was suspected of causing the accident.

At the hospital, soon after the accident, the trooper observed that the appellant had slurred speech, red glassy eyes, a strong smell of alcohol and that many of the appellant's answers were unintelligible. The appellant also admitted to drinking and driving.

Those facts in relation to the hospital make the hospital a "suspicious place." Those same facts also provided probable cause to believe that the appellant had been drinking and driving.

The determination of whether a place is a "suspicious place" is a highly fact-specific analysis. Holland v. State, 788 S.W.2d 112, 113 (Tex. App.-Dallas 1990, pet. ref'd). Review of the case law indicates that several different factors have been used to justify the determination of a place as suspicious. However, only one factor seems to be constant throughout the case law. The time frame between the crime and the apprehension of a suspect in a suspicious place is short. We are not setting any specific time limits today, but we are pointing out that the time between the crime and the apprehension of the suspect in a suspicious place is an important factor.

CONCLUSION

Reviewing courts in Texas have consistently used the totality of the circumstances test for deciding whether an arrest is proper under Article 14.03(a)(1). When the Legislature meets, after a particular statute or article has been judicially construed, without changing that statute or article, we presume the Legislature intended the same construction should continue to be applied. Marin v. State, 891 S.W.2d 267, 271-272 (Tex. Crim. App. 1994). The Texas Legislature has not chosen to amend this Article after that interpretation by this Court. Therefore, we reaffirm today that the test under Article 14.03(a)(1) is a totality of the circumstances test. First, probable cause that the defendant committed a crime must be found and second, the defendant must be found in a "suspicious place." The judgment of the Third Court of Appeals is affirmed.

Delivered: April 23, 2003

Publish

1. Various other provisions and statutes throughout the Code of Criminal Procedure and Civil Statutes authorize peace officers to make warrantless arrests in particular situations. See e.g., Tex. Code Crim. Proc. arts. 8.04, 8.07, 18.16; Tex. Rev. Civ. Stat. art. 6701d, 153.

2. Act of Jan. 1, 1966, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 362 (amended 1999) (current version at Tex. Code Crim. Proc. art. 14.03(a)(1)).

3. These facts were also used to find probable cause that the appellant committed the murder.