NO.

THE STATE OF TEXAS			§            IN THE ________ COURT 
						§	
												§

V.						§	OF
						§

JOHN DOE					§	__________ COUNTY, TEXAS

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT:

	Defendant, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this Court on ___________, 200__.

Procedural History
	Defendant allegedly committed the offense which is subject of Cause Number__________ on July 15, 2004.  Defendant was charged by information in Cause Number ____________ on July 27, 2004, for the offense of Misdemeanor Driving While Intoxicated-second.  A hearing on evidentiary pretrial matters was held February 9, 2005.
Statement of Facts
	On July 15, 2004, Officer J. Winters was called to 9609 Vicksburg, the Defendant’s residence, on a call to check welfare.  The Defendant’s wife told Officer Winters that she found an empty bottle of bourbon in the trash and that the Defendant was a recovering alcoholic.  After finding the bottle, the Defendant’s wife confronted the Defendant and the Defendant left the residence.  The Defendant’s wife related to Officer Winters that she had spoken with Defendant on the phone and that she thought he had been drinking.
	Officer Winters spoke with the Defendant on the phone and found that the Defendant’s speech was not slurred but Officer Winters did believe that the Defendant “had difficulty answering a few questions.”  Officer Winters then asked Officer J. Aguirre to check the area for the Defendant’s vehicle to perform a welfare check.
	Officer Aguirre found the Defendant’s vehicle and pulled the Defendant over.  Officer Aguirre did not see the Defendant drive erratically or violate any traffic laws prior to pulling the Defendant over.  The police reports completed by Officer Winters and Officer Aguirre are attached as Exhibits A and B.
Argument

I.	The evidence of the Defendant’s intoxication was the product of an illegal detention because the stop leading to the Defendant’s detention was not justified by the officers’ community care-taking function.

	The Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution protect citizens from unreasonable searches and seizures.  In general, law enforcement personnel may not search or seize an individual absent a warrant based on probable cause.  Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999).
	The United States Supreme Court has held that one exception to the general warrant requirement is the community care-taking function of law enforcement.  Cady v. Dombrowski, 413 U.S. 433 (1973).  The Texas Court of Criminal Appeals recognized the community care-taking exception in Wright v. State, stating, however, that the exception was narrow.  7 S.W.3d 148 (1999).
	In Wright, a police officer observed a passenger leaning out of the window of a car vomiting.  The officer pulled the car over to check on the welfare of the passenger and see if any assistance was needed.  The court stated that a police officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  Id at 151.
	The court enumerated the following factors to determine whether an officer acted reasonably in stopping an individual to determine if he needs assistance: 1) the nature and level of stress exhibited by the individual; 2) the location of the individual; 3) whether or not the individual was alone and/or had access to assistance independent of that offered by the peace officer; and 4) to what extent the individual, if not assisted, presented a danger to himself and others.  Id at 152.  
	The court remanded the case to the Court of Appeals in Austin and they rejected the State’s community care-taking argument. The Austin Court of Appeals found that the officer’s reasons for stopping the car were unreasonably speculative and appear to be no more than an attempt through hindsight to justify the stopping and detaining of the defendant.  Wright v. State, 18 S.W.3d 245 (Tex. App.-Austin 2000, pet. ref’d.).
	The instant case presents less of a need for community care-taking than was present in Wright.  Nothing about the Defendant’s driving indicated that he was intoxicated and therefore it was unreasonable for Officer Aguirre to detain the Defendant.
	In Corbin v. State, the Court of Criminal Appeals revisited the Wright factors and performed a more complete analysis of the community care-taking function.  85 S.W.3d 272 (Tex. Crim. App. 2002).  The Defendant in Corbin drifted out of his traffic lane and the officer was concerned that the Defendant was either sleepy or intoxicated.  Id at 275.  The court found that the officer did not act reasonably in pulling over the defendant to check his welfare.  Id at 279.  See also Eichler v. State, 117 S.W.3d 897 (Tex. App.-Houston [14th Dist] 2003, no pet.).
	In applying the Wright factors, the Corbin court said that the first factor, the nature and level of stress exhibited by the individual, is entitled the greatest weight.  Corbin, 85 S.W.3d at 277.  At the pretrial suppression hearing in the instant case, Officer Winters stated that the Defendant did not exhibit any stress whatsoever.  Officer Aguirre detained the Defendant based only on Officer Winter’s hunch that the Defendant was driving while intoxicated.  The first factor, which should be afforded the greatest weight, is clearly in the defendant’s favor.
	The second Wright factor, the location of the individual, is meant to determine whether the individual being stopped could have gotten help had he needed it.  The Defendant was stopped in the 3800 block of 82nd Street in Lubbock.  This is not an isolated area and the Defendant had pulled into the parking lot of a business named “Health Point.”  The Defendant was not on an isolated road in the country.  Based on the location of the Defendant, he could have gotten assistance from someone if he needed it.  The second factor is also in the Defendant’s favor.
	The third Wright factor, whether or not the individual was alone and/or had access to assistance other than that offered by the officer, favors the Defendant.  While the Defendant was alone in the car, he was in a populated area where he could have found assistance had he needed any.  Furthermore, nothing observed by Officer Aguirre or Officer Winters showed that the Defendant needed any assistance.
	The fourth Wright factor, to what extent the individual, if not assisted, presented a danger to himself or others, favors the Defendant as well.  As observed by Officer Aguirre, the Defendant did not present a threat to himself or others.  The Defendant was driving down the road without violating any traffic laws.  When Officer Winters spoke with the Defendant on the telephone, there was no slurred speech and the defendant was able to give his location and answer questions posed by Officer Winters.  Officers Aguirre and Winters had no more than a hunch that the Defendant presented a risk to himself or to others before he was detained.

II.	Any evidence concerning statements made by the Defendant’s wife are barred under Tex. R. Evid. 504(b), and therefore statements made by the Defendant’s wife are inadmissible as they would violate the Defendant’s right to confront a witness as guaranteed by the Sixth Amendment of the Constitution and Crawford v. Washington.

	Tex. R. Evid. 504(b) states: “(i)n a criminal case, the spouse of the defendant has a privilege not to be called as a witness for the state.”  The exceptions to this rule do not apply in the instant case, and therefore, the Defendant’s wife cannot be called as a witness by the state.
	The Sixth Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right . . .  to be confronted with the witnesses against him.”
	Crwaford v. Washington states that a defendant’s spouse’s statements made to a police officer are inadmissible at trial when the spouse has availed herself of the spousal privilege because the defendant is denied his right to confront the witnesses against him.  541 U.S. 36 (2004).
	At the pretrial suppression hearing, the state was able to present testimony of the Defendant’s spouse’s statements to Officer Winters because it was ruled that the rules of evidence do not apply in pre-trial evidentiary hearings.  At trial, the rules of evidence will apply and Crawford forbids any testimonial statements made by a witness who is not available for cross examination.  Therefore, any statements made by the Defendant’s spouse to Officer Winters are inadmissible.
	Without the statements that the Defendant’s spouse made, the only evidence that the state could offer is as follows: Officer Winters spoke with the Defendant on the telephone and the Defendant did not exhibit slurred speech; the Defendant was able to answer questions posed by Officer Winters and provide Officer Winters with his current location; Officer Aguirre found the Defendant at the given location and did not observe the Defendant committing any traffic violations prior to making the stop.
	Without the statements made by the Defendant’s spouse, there is simply no evidence to support the Defendant’s dentention.
III.  	The evidence of intoxication found by Officers Winters and Aguirre should be suppressed as a product of an illegal search because there was not sufficient probable cause or reasonable suspicion to stop the Defendant based on the tip alone and there was insufficient corroboration of the tip before the Defendant was detained.

	“An officer may temporarily stop and investigate a vehicle if the officer has reasonable suspicion based on articulable facts that the detainee is connected to unusual activity with some indication that the activity is related to a crime.”  Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986) (overruled on other grounds).  The United States Supreme Court said in Alabama v. White, that reasonable suspicion is dependant on both the quality of the information at hand, and its degree of reliability.  496 U.S. 325, 330 (1990).  They also said that, “while an anonymous tip or telephone call may, and usually will, justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention.”  Id at 329 (emphasis added).  “There must be some further indicia of reliability, some additional facts from which a police officer may reasonably conclude that the tip is reliable and a detention is justified.”  State v. Sailo, 910 S.W.2d 184, 188 (Tex.App.–Fort Worth 1995, pet. ref’d). 
	The Amarillo Court of Appeals summarized this idea into three factors significant to the determination of whether a tip provides reasonable suspicion for a temporary detention.  Glenn v. State, 967 S.W.2d 467, 470 (Tex.App.–Amarillo 1998, pet. granted).  The first is the tipster’s ability to accurately predict future behavior of third parties.  Id.  The second is police corroboration of details linking the accused to the stated criminal activity.  Id.  The third and final factor given by the court was “a particularized and objective reason to suspect the accused.”  Id.
	The first Glenn factor, the tipster’s ability to accurately predict future behavior of the third parties, strengthens the Defendant’s case.  The Defendant’s wife did not witness the Defendant drinking any alcohol at all.  She told Officer Winters that she had first suspected the Defendant to be intoxicated after she had spoken with him on the telephone.  Since the Defendant’s wife did not see him drink alcohol or, apparently, believe the Defendant to be intoxicated when she spoke with him in person, it would be antithetical to conclude that she could predict that the Defendant was driving while intoxicated.
	The second Glenn factor, police corroboration of details linking the accused to the stated criminal activity is likewise in the Defendant’s favor.  Officer Winters spoke briefly with the Defendant on the phone and reported that the Defendant did not have slurred speech, stating only that the Defendant had some difficulty answering questions.  This was the entire investigation that Officer Winters conducted before calling Officer Aguirre and instructing him to find the Defendant and pull him over.
	Officer Aguirre also did nothing to corroborate that the defendant was possibly driving while intoxicated.  Officer Aguirre found the Defendant, did not observe the Defendant committing any traffic offenses or driving erratically, and pulled the Defendant over. 
	The third Glenn factor, a particularized and objective reason to suspect the accused, also favors the Defendant.  The reason to suspect the Defendant was that he was a recovering alcoholic and his wife had found a bottle of bourbon in the garbage at their house.  Again, the Defendant’s wife never saw him drinking and could not have been sure that he was intoxicated at the time of the detention.
	In State v. Stolte, a citizen called police on his cell phone to report a suspected DWI.  991 S.W.2d 336, 339 (Tex.App.–Fort Worth 1999, no pet.).  The caller gave the police a description of the vehicle, the vehicle’s location, and the vehicle’s license plate number.  Id.  When the responding officer arrived at the described location, he saw the vehicle, turned on his emergency lights and stopped the appellant.  Id.  The informant stayed on the phone with the dispatcher throughout the time the officer was responding, constantly updating her as to the vehicle’s location.  Id at 340.  When the officer pulled the vehicle over, the informant circled the block and pulled in behind the police car.  Id.
	The court reasoned that in light of the totality of circumstances known to the officer at the time of the detention, he was justified in initiating the traffic stop immediately upon verifying the vehicle’s location and description.  Id at 343.  The circumstances discussed by the court were that the officer knew the caller was still on the phone with the dispatcher, that the department’s policy was to have the caller pull in behind the officer after the suspect was stopped, and that the officer verified the vehicle’s description, location, and license plate number.  Id at 342.  The fact that the caller was readily available to give firsthand information directly to the officer increased the reliability of the tip, thereby decreasing the amount of police corroboration needed to justify the stop.  Id.  The court reasoned that the totality of those circumstances, combined with the obvious danger that the appellant presented to the public, justified the officer’s stop of the appellant.  Id at 343.
	The instant case is easily distinguished from Stolte.  The Defendant’s wife had not observed the Defendant’s driving and determined that he must be intoxicated, as was the case with the tipster in Stolte.  Since the Defendant’s wife was not continuously and readily available to give the Officers information about the Defendant’s driving, Officer Aguirre needed to properly corroborate that the Defendant was indeed driving while intoxicated.  Since Officer Aguirre did nothing to corroborate that the Defendant was driving while intoxicated, any evidence obtained from the Defendant’s detention must be suppressed.
	At best, Officers Winters and Agurirre had a hunch that the Defendant may be driving while intoxicated.  The inarticulate hunch, suspicion, or good faith of the investigating officer is never sufficient justification for an investigatory detention.  Glass v. State, 681 S.W.2d 599 (Tex. Crim. App. 1984). 			
Conclusion
	Evidence of the Defendant’s intoxication obtained after his warrantless seizure should be suppressed, as the belief that the Defendant was in need of assistance was unreasonable and therefore, the stop cannot be justified by the police officer’s community care-taking function.    The statements made by the Defendant’s spouse are inadmissible, and without this evidence there is nothing to show that there was reasonable suspicion to detain the Defendant.  Furthermore, the stop was not supported by reasonable suspicion or probable cause.

CERTIFICATE OF SERVICE

	This is to certify that a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress Evidence was delivered to the Criminal District Attorney of Lubbock County, Texas on the _____ day of _______, 200__.