Appellee Blake Thomas Smith was arrested and charged by information with (a) driving while intoxicated (“DWI”) and (b) carrying a handgun-as a person licensed to do so-while intoxicated. Smith moved to suppress all evidence obtained as a result of his purportedly illegal detention, search, and seizure. The trial court granted Smith’s motion and signed orders suppressing all evidence leading up to Smith’s arrest and any evidence secured as a result of his arrest. The State of Texas appeals those orders. We affirm.

Background

Dallas police officer Frank Plaster, whose regular assignment was as a helicopter pilot, was working DWI enforcement in the lower Greenville area of the city following the St. Patrick’s Day parade. At approximately six thirty in the evening, Plaster turned onto a residential street and saw Smith’s vehicle some distance down the street, traveling in the same direction. The video camera in Plaster’s car was operating throughout this time. The video shows Smith’s vehicle brake, start to pull over, bump something on the right side of the road, and then come to a stop next to the curb. After a short time, Smith pulled back into the street. Plaster then followed Smith for more than two minutes. He followed Smith down the street to a stop sign, where Smith stopped, signaled, and turned right. Plaster continued following Smith down the second street, where they joined a line of cars stopped at a stop light. When the light changed they proceeded forward until the next red light; at that point Smith’s vehicle was second in line, he signaled, and ultimately turned right. Plaster continued to follow Smith down the third street some distance and then turned on his lights. Smith signaled and turned right onto a cross street and stopped. Plaster approached Smith’s vehicle and told Smith the reason he stopped him was because Smith “ran over the curb” back on the first street.

Following the stop and an investigation, Plaster arrested Smith for DWI. During an inventory search of Smith’s vehicle incident to the arrest, another officer discovered a loaded firearm in the vehicle’s console. Smith was licensed to carry a concealed handgun, but was charged with possessing the gun while intoxicated. Later that same day, Plaster provided his reasons for the stop. He stated in a probable cause affidavit that he stopped Smith because he (Plaster) had: personally observed the motor vehicle in which the suspect was the driver commit the traffic violation of reckless driving, A/P ran over the right side curb, 2000 Madera Street a public street or highway in Dallas, Dallas County, Texas.

The Motion to Suppress

Smith filed a motion to suppress alleging he was detained without reasonable suspicion that he was engaged in criminal activity. 1 At the hearing on the motion, the State stipulated Smith’s arrest was warrantless and that the burden fell on the State to establish that the officer did have reasonable suspicion to make the stop. The State called Officer Plaster and offered the video of the stop into evidence. The video was admitted and played. Plaster testified that “what first drew [his] attention to Mr. Smith was that he bumped the curb.” Plaster testified he stopped Smith because he suspected Smith was intoxicated, based on “the fact that it was St. Patrick’s Day; the location; the Lower Greenville area; [and] the fact that he bumped the curb, which is a cue of intoxication.” Plaster further testified that he “didn’t see any apparent reason for [Smith] to stop.” After Plaster had explained his reason for the detention, the following exchange took place: Q. [by the prosecutor] You said you stopped him for suspicion of intoxication. But we also observe some traffic violations, correct?

A. [by Plaster] Correct.

Q. And what did we observe him to do on this video?

A. Technically you – you’re supposed to signal at least 100 feet before the intersection and he doesn’t do that on two occasions.

Q. Okay. And one of those intersections it appears to be controlled by a red light and one by a stop sign?

A. Correct.

Q. But you still have to signal that 100 feet out?

A. You do. Plaster went on to agree that he had “recorded the suspicion of intoxication” in his arrest report, and that the report also says “reckless driving” because he “characterize[s] the bumping of the curb and the stopping as reckless driving.”

On cross-examination, Plaster conceded that Smith was not speeding, weaving, or driving aggressively. He acknowledged that Smith responded “normally” to the officer’s red lights and pulled over safely. He agreed that the standard field sobriety testing manual does not include failure to signal 100 feet prior to an intersection or a turn as a cue of intoxication.

Smith also testified at the hearing on the motion. He explained he had stopped that evening because he had received a text, and he wanted to pull over and read it rather than reading it while he was driving. He stated that as he pulled over there was a big pile of trash next to the curb with a log sticking out into the street. He steered left to avoid the log and then pulled over to the curb to read the text. He denied weaving or speeding, and he explained that his failure to use turn signals was due to an inability to see the stop sign until shortly before he reached it and to his unfamiliarity with the neighborhood. In response to questions from the prosecutor, Smith testified he did not hit the curb, asserting that “if anything [he] barely nicked the side of the log that was sticking out in the road.”

The trial court asked to see the video again in its entirety and then took the matter under advisement. Ultimately, the court signed orders granting the motion and suppressing “all evidence leading up to the defendant’s arrest and any evidence secured as a result of the defendant’s arrest” in both cases.

The court dictated findings of fact and conclusions of law into the record. It first summarized the witnesses’ testimony and described what the video showed as Plaster observed and followed Smith. Then the court stated: The Court first finds that bumping the curb is not a traffic violation. While bumping the curb might have gotten the Officer’s attention, it is not reckless driving, nor does it give rise to reasonable suspicion that the offense of reckless driving occurred. The Officer formed his opinion that the defendant was intoxicated prior to what the Officer testified was the basis for the stop.

The Court finds that rather than providing specific and articulable facts that combined with rational inferences from those facts would lead the Officer reasonably to conclude that the defendant had engaged in criminal activity, in this case, reckless driving[, t]he Officer followed the defendant looking for a reason to stop him. The Court finds that there was no reasonable suspicion of reckless driving and that the Court’s observation of the defendant’s use of his turn signal three times on video, together with the defendant’s testimony as to why he signaled when he did, is reasonable to the Court. Therefore, the Motion to Suppress is hereby granted.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review; the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court in determining historical facts, and we review de novo the court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We will uphold the trial court’s ruling on the motion if that ruling was supported by the record and was correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

Reasonable Suspicion to Detain

The State contends in its two issues that the trial court applied an improper standard of review when ruling on the motion to suppress and thereby reached a legal conclusion-namely, that the officer lacked reasonable suspicion to detain Smith-not supported by the facts.

Establishing Reasonable Suspicion

Under the Fourth Amendment, a warrantless detention of a suspect must be justified by a reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21-22 (1968); State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011). A police officer has reasonable suspicion to detain a person if he has specific, articulable facts that, taken together with rational inferences from those facts, would lead him reasonably to conclude that the person detained is engaged in criminal activity. Elias, 339 S.W.3d at 674. We use an objective standard, disregarding the actual subjective intent or motive of the detaining officer and looking, instead, to whether there was an objective justification for the detention. See id. However, we look only at those facts known to the officer at the inception of the stop. Wong Sun v. United States, 371 U.S. 471, 484 (1963). A “Terry stop” must rest on the facts known to the officer at the time of the stop and not on subsequently-acquired knowledge. See Terry, 392 U.S. at 21-22 (“would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”) (emphasis added); Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (“would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate”) (emphasis added).

We look first to the reason given by Officer Plaster for the detention immediately afterward: Smith “committed the traffic violation of reckless driving” when he “ran over the right side curb.” Then at the hearing, Plaster testified he saw Smith’s bumping the curb as a sign of intoxication; given the fact that Smith was in the Lower Greenville after the St. Patrick’s Day celebration, he stopped Smith because he suspected Smith was intoxicated. Finally, at the hearing, the prosecutor referred to the video and raised questions concerning possible signaling violations.

Reckless Driving

The trial court found that Smith’s bumping the curb was not reckless driving and was not a traffic violation. The trial court summarized Smith’s testimony concerning the incident and stated the video supported his testimony, i.e., [A]s [Smith] was pulling over there was a big pile of trash and a log sticking out. [Smith] maneuvered his vehicle to quickly avoid the log and proceeded to the next area of the road that was free of traffic.

A person commits the offense of reckless driving if he “drives a vehicle in wilful or wanton disregard for the safety of persons or property.” Tex. Transp. Code Ann. § 545.401(a) (West 2011). Our review of the police video supports the trial court’s finding on this issue. The video shows Smith steering around debris in the street and almost imperceptibly bumping something along the right side of his vehicle. Nothing about the maneuver suggests anything remotely like wilful or wanton disregard for safety. Indeed, nothing about Smith’s driving that was recorded on the police video suggests a disregard for safety. The record supports the trial court’s findings of fact and we discern no error in the trial court’s legal conclusion that Smith did not commit the traffic violation of reckless driving. Cf Garcia v. State, 827 S.W.2d 937, 944-45 (Tex. Crim. App. 1992) (traffic violation supports stop and detention).

DWI

Plaster also testified that bumping the curb was an indicia of intoxication. But the video establishes that Smith’s steering around the debris in the road and the simultaneous bump was not a reckless or unreasonable act that would suggest Smith was “intoxicated while operating a motor vehicle in a public place.” See Tex. Transp. Code § 49.04(a). The video establishes the bump was not the result of erratic steering. Indeed, Plaster testified Smith was not weaving as he drove. Nor was he speeding or driving aggressively. Smith responded “normally” to the officer’s red lights and pulled over reasonably and safely. Neither the video of Smith’s driving nor Plaster’s testimony provides articulable facts supporting a stop or detention based on reasonable suspicion of the traffic offense of driving while intoxicated. Cf Garcia, 827 S.W.2d at 944-45. We discern no error in the trial court’s failure to find to the contrary. 2

Failure to Signal

The State argues the stop was justified by Smith’s failure to signal 100 yards before turning at the stop sign and the stop light. For at least two reasons, we reject the State’s argument.

First, it is apparent from the record that Plaster was not consciously aware of any signaling violation. He did not mention such a violation to Smith at the time of the stop or in his probable cause affidavit. Moreover, he did not refer to such a violation at the hearing until prompted by the prosecutor: Q. [by the prosecutor] You said you stopped him for suspicion of intoxication. But we also observe some traffic violations, correct?

A. [by Plaster] Correct.

Q. And what did we observe him to do on this video?

The prosecutor’s own question establishes that any knowledge of signaling violations came from later viewing of the video. Thus, even if we were to assume-without deciding-Smith committed one or more signaling violations, those facts cannot be part of the objective calculus we rely upon in our review. See, e.g., Terry, 392 U.S. at 21-22; Davis v. State, 947 S.W.2d at 243. 3 However, even if we were to consider the signaling issue as part of our calculus, we would conclude the offense was not proven so as to support the detention in this case. The State relies on the statutory requirement that “[a]n operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.” See Tex. Transp. Code § 545.104(b). Plaster never identified a point 100 feet from either the stop sign on the first street or the stop light on the second. He never testified that Smith failed to signal “continuously” from either of those points (i.e., 100 feet before the stop sign or the stop light) until he eventually turned. In fact, Plaster never testified he actually saw a signaling violation other than on the video. 4

The video makes clear that Smith did signal at both the sign and the light. It further establishes-as the trial court pointed out-that Smith signaled when Plaster pulled him over. The only objective inference we can draw from the video and from Plaster’s own reporting is that he did not possess articulable facts supporting a signaling violation at the time of the stop. We further conclude Plaster’s testimony did not prove up such a violation at the hearing on the motion to suppress. Accordingly, we discern no error in the trial court’s failure to conclude that signaling violations supported a finding of reasonable suspicion to detain Smith.

Conclusion

The State contends the trial court reached its decision using what it calls a “divide and conquer” method of analysis. We look today at the totality of the circumstances observed and considered by Officer Plaster as a basis for his actions. Looking at those circumstances as a whole, we conclude the officer did not have specific, articulable facts that, when taken together with rational inferences therefrom, would lead him reasonably to believe that Smith was engaging in criminal activity. Thus, he lacked reasonable suspicion to stop and detain Smith. See Elias, 339 S.W.3d at 674. We conclude the record contains sufficient evidence supporting that legal conclusion. Accordingly, we overrule both of the State’s issues, and we affirm the trial court’s orders.

KERRY P. FITZGERALD

JUSTICE

Do Not Publish

Tex. R. App. P. 47

110742F.U05

S

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT