By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
You probably remember the U.S. Supreme Court case of Illinois v. Gates[1] from law school (maybe even the holding), but you may not remember what the big deal about it was. In Gates, the police received an anonymous letter that Lance and Sue Gates were periodically traveling to Florida (Lance flying, Sue driving) and driving back with $100,000 of marijuana in the trunk. A detective corroborated that Lance was flying there, meeting Sue, and the two were driving back to Chicago together, and he obtained a warrant. A search of their car when they arrived home revealed over 350 pounds of marijuana, which I assume they claimed was for personal use.
The problem was with the existing probable cause standard for anonymous tips and confidential informants, the Aguilar-Spinelli[2] two-pronged test: The magistrate issuing the warrant must be informed of the reasons to support the conclusion that such an informant is reliable and credible, and the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information. That wasn’t possible here where the writer of the letter was completely unknown, but the technical application of that rigid rule here seemed to fly in the face of common sense. The Supreme Court agreed and ditched the Aguilar-Spinelli two-prong test in favor of the totality of the circumstances test used in other probable cause determinations.
Since then, the language in Gates regarding the “practical, common-sense judgment called for in making a probable-cause determination” and the “common-sense judgments of laymen” have served as a touchstone in judicial opinions analyzing probable cause determinations as a “probability and not a prime facie showing of criminal activity.” The Court of Criminal Appeals did so most recently in State v. Espinosa,[3] which discussed a probable cause determination in a warrantless arrest for DWI.
Background
On August 20, 2019, Ashley Fajkus and her cousin were driving past a local elementary school at about 3:15 p.m., when the pickup line of cars waiting for the kids’ dismissal was starting to form on the right side of the road. The cars were bumper to bumper, a sight with which all parents are familiar. Ashley noticed one of the drivers in a vehicle in line had her head hanging at an odd angle, and she became concerned that the woman may be having a medical emergency. Ashley and her cousin pulled over and attempted to open the door to the car, but the doors were locked and windows up, although the vehicle was still running and the car was in park. The women began pounding on the windows to rouse the driver, and another person in line called 911. The driver, Jennifer Espinosa, eventually awoke and opened her door; Ashley later said that Espinosa “smelled like a bar.” Espinosa was initially unresponsive, then spoke after a few minutes but was difficult to understand. She got out of the car and asked Ashley to drive her home. According to Ashley, Espinosa “couldn’t walk a straight line.”
A teacher from the elementary school approached and told Espinosa that police were on their way, causing her to go from lethargic to slightly panicked. The teacher never saw Espinosa in her vehicle. She later testified that the line begins forming at around 3:00 p.m., although this year it had begun forming before that, and that Espinosa’s car was fifth in line. Espinosa told the teacher that she was headed to a local middle school.
A Houston police officer arrived and observed that Espinosa had slurred speech, was disoriented, was confused about where she lived, was unsteady on her feet, had “glossy” red eyes, and had a strong odor of alcohol emanating from her person. Four empty wine bottles were found in her car. Nobody had seen Espinosa driving the vehicle, but she told the officer that she was coming from her house, then said she was coming from her friend’s house and was headed to work. She told the officer that she refused SFSTs and refused a blood sample, and she was arrested without a warrant for DWI.
In the trial court, Espinosa filed a pretrial motion to suppress “all evidence seized and obtained” as a result of her “illegal detention, search[,][4] and seizure,” claiming her warrantless arrest was unsupported by probable cause because neither the arresting officer nor any witness saw her drive or operate her vehicle. At the hearing, the arresting officer admitted that nobody on the scene saw the defendant operating the vehicle and that nobody knew how long she had been waiting in the pickup line, agreeing that she might have arrived at 10 a.m. or even the night before for all he knew (adding that he did not find that likely). The two civilian witnesses were also called, which is good work by the Houston Police Department and the Harris County DA’s Office.
The trial court granted the suppression, finding there was “insufficient probable cause to arrest the defendant based on the State’s failure to establish the defendant ‘operated’ a motor vehicle as required for the offense of driving while intoxicated.” The trial court’s ruling relied heavily on the Third Court of Appeals case of Tex. Dep’t of Pub. Safety v. Allocca,[5] which held that evidence of “operation” is insufficient unless there is “at least one additional factor, other than the driver being asleep with the engine running, that indicated the driver had attempted or intended to drive the vehicle.”
The State appealed to the Fourteenth Court of Appeals. The opinion of the Fourteenth Court noted a number of cases in which reviewing courts had found probable cause under the totality of the circumstances despite the fact that an officer did not see the accused operating the motor vehicle.[6] The Fourteenth Court found each of these cases distinguishable: Unlike those cases, Espinosa:
“did not admit to drinking, there were no positive breathalyzer results or failed field sobriety tests to suggest if, when, and how much, if any, alcohol was consumed, none of the witnesses knew how long [the] appellee’s vehicle was in the location where she was observed, no one saw [the] appellee drive or operate her vehicle, and the testimony indicates [the] appellee did not express an intent to drive or operate her vehicle.”
The Fourteenth Court upheld the trial court’s ruling, saying that the circumstantial evidence was insufficient to establish a temporal link between Espinosa’s intoxication and her driving.
Justice Kevin Jewell dissented, citing evidence that Espinosa indicated she had been driving and that she was found in her parked vehicle on a public roadway with the engine running in a school pickup line that had begun to form about 15 minutes before she was found. Justice Jewell stated that the majority erred in relying on legal sufficiency cases and essentially “conflate[d] the probable cause inquiry with a legal sufficiency analysis.” An opinion with justices of a court of appeals in disagreement on a material question of law is one of the Texas Rules of Appellate Procedure’s stated “reasons for review”[7] for the Court of Criminal Appeals, and review they did.
As the Court of Criminal Appeals saw it
Harris County Assistant District Attorney Bridget Holloway petitioned the Court of Criminal Appeals on behalf of the State, arguing Justice Jewell’s point about the majority conflating a legal sufficiency and probable cause analysis, and that the majority erred in finding no temporal link was established.
Espinosa responded that the majority had correctly held that her statements to the officers and witnesses were not admissions that she had recently operated the vehicle and there was no evidence of when she arrived, which meant that she could have driven there at any time, including before she became intoxicated.
The Court of Criminal Appeals reversed. Writing for a unanimous court, Judge Hervey disagreed with Espinosa that her statements could not be considered admissions that she had recently operated her vehicle. Although the arresting officer had agreed that it was possible that Espinosa had arrived in the pickup line long before she was seen there, Judge Hervey noted that the video admitted into evidence didn’t support that, and that Espinosa “never indicated that she arrived in her vehicle hours or even a day before she was approached.” Rather, her vehicle was fourth or fifth in a line of cars that had begun to form 15 to 30 minutes before she was found. In a nice bit of common-sense logic, Judge Hervey observed that:
If Appellee’s version of events were true, it could mean that the first three or four drivers to arrive after Appellee saw her sitting in the driver’s seat of her vehicle and nonetheless drove past her and reversed until they were ahead of her in the bumper-to-bumper line of traffic. While that is possible, we do not look to possible innocent explanations when determining whether probable cause existed to make a warrantless arrest. Also, critically, probable-cause assessments are based on probabilities and common sense. Appellee’s interpretation of the record stretches credulity. With respect to Appellee’s argument that the evidence does not show that the pickup line began to form about 15 minutes before Appellee was found, we agree that the evidence does not directly show that, but it is a reasonable deduction.[8]
Judge Hervey also observed that the Court had never adopted the court of appeals’ reasoning in Allocca, and even if the Court had done so, the facts are distinguishable. In Allocca, the defendant was found asleep with the seat reclined in his legally parked car at 1:45 a.m., explaining that the car was running because he was hot and wanted the air conditioner on. Espinosa, on the other hand, was stopped in the middle of the day in a school pickup line that had recently begun to form in a traffic lane, she was asleep at the wheel in an unreclined seat, and she had no explanation for why she was sleeping.
Finally, Judge Hervey noted Espinosa argued that the trial court’s findings of fact were supported by the record and that the State was ignoring those findings. She further noted, however, that Espinosa had not identified any particular findings that the State was ignoring. Where the question before the court doesn’t turn on credibility or demeanor, review of a probable cause question on appeal is a mixed question of law and fact, the trial court’s determination is reviewed de novo. In other words, there was little disagreement as to what the facts were; rather, the disagreement was over the legal significance of those facts. The Court held that the commonsense view of those facts was that a reasonably prudent person could conclude that Espinosa had recently operated her vehicle in a public place while intoxicated.
What’s this mean to the rest of us?
The immediate import of Espinosa is its obvious usefulness to DWI prosecutors. If you have an intoxicated defendant who is not seen driving, does not admit drinking, and refuses SFSTs but is found in circumstances where logic tells you that she was recently operating her vehicle, Espinosa is directly on point and offers a distinguishing set of facts should the defendant argue Allocca.
Of broader import is how Espinosa put the analysis back firmly in Gates’s admonition that probable cause requires only a probability of criminal activity, not a prima facie showing that criminal activity occurred. As Judge Hervey puts it, “We do not look to possible innocent explanations when determining whether probable cause existed to make a warrantless arrest.” It’s possible the defendant had innocent (albeit far-fetched) explanations for her behavior and circumstances, but as the Court reminds us, probable cause doesn’t require the actor to exclude every possible indicator of innocence. It requires only the probability of criminal activity, viewed through the lens of common sense.
Endnotes
[1] 462 U.S. 213 (1983).
[2] Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
[3] 666 S.W.3d 659 (Tex. Crim. App. 2023).
[4] The opinion of the Fourteenth Court delightfully adds an Oxford comma in brackets.
[5] 301 S.W.3d 364 (Tex. App.—Austin 2009, pet. denied).
[6] See, e.g., Oliva v. State, 525 S.W.3d 286, 296 (Tex. App.—Houston [14th Dist.] 2017), rev’d on other grounds, 548 S.W.3d 518 (Tex. Crim. App. 2018); Abraham v. State, 330 S.W.3d 326, 330-31 (Tex. App.—Dallas 2009, pet. dism’d); Chilman v. State, 22 S.W.3d 50, 56 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); State v. Parson, 988 S.W.2d 264, 267-68 (Tex. App.—San Antonio 1998, no pet.); Elliott v. State, 908 S.W.2d 590, 591-92 (Tex. App.—Austin 1995, pet. ref’d).
[7] Tex. R. App. P. 66.3(e).
[8] Espinosa at *18-19 (internal citations omitted).