By Barbara Hervey

Judge, Texas Court of Criminal Appeals

Appellant was charged with a Class B misdemeanor of driving while intoxicated (DWI). Following the trial court’s denial of appellant’s motion to suppress, appellant pled nolo contendere, pursuant to a plea agreement, and was placed on community supervision for eighteen months. Appellant appealed the trial court’s ruling on his motion to suppress, and the court of appeals decided that reasonable suspicion of intoxication did not exist when the police detained appellant to investigate whether he was intoxicated. Foster v. State, 297 S.W.3d 386, 390-94 (Tex. App-Austin 2009) (“reasonable suspicion did not exist to justify Foster’s detention for DWI”). We will reverse.

The suppression-hearing record reflects that on September 13, 2007, at approximately 1:30 a.m., Austin Police Department Homicide Detective Kurt Thomas was stopped at a red light in the right lane of a two-lane one-way street in an unmarked police car a few blocks from Austin’s Sixth Street bar district. Appellant’s truck came up extremely close behind Thomas’s vehicle, which Thomas appeared to describe as a lurch.

Thomas testified that he heard a revving sound and noticed appellant’s truck lurch forward again. Thomas believed that appellant was attempting to get into the left lane, but appellant was so close to the police car that he did not have enough room to enter the left lane.¹ Sergeant Eric de los Santos, driving a marked police car, pulled alongside Thomas and Foster, which “effectively prevented appellant from moving.” See Foster, 297 S.W.3d at 389.

Thomas testified that he decided to “detain” appellant because he thought appellant’s driving was “unsafe and-due to where [they] were downtown and the time of night, [he] was concerned that maybe this driver was impaired.”² The officers exited their vehicles and approached appellant’s vehicle. The officers smelled alcohol as they approached appellant’s vehicle, and appellant was “removed” from his vehicle.³ Appellant was arrested for DWI after “a responding DWI enforcement officer conducted field sobriety tests.” See Foster, 297 S.W.3d at 299.

Thomas testified that, before becoming a homicide detective, he worked traffic patrol and had been part of DWI arrests. He also testified that, based on his training and experience in traffic patrol, it is common for many people to be impaired in Austin’s Sixth Street bar district late at night.⁴

The trial court made express findings that Thomas’s testimony was credible and that he had reasonable suspicion to detain appellant for DWI in light of the time of night, the location near Austin’s downtown bar district, and appellant’s erratic driving— the “lurching” movements described in Thomas’s testimony. The State made no claim at the suppression hearing that appellant was not detained before the police approached his vehicle and smelled alcohol, and the trial court made no findings on exactly when appellant was detained by the police.⁶

The court of appeals decided that appellant “was detained at the time the police officers blocked his vehicle, preventing him from leaving the scene, and began to approach.” See Foster, 297 S.W.3d at 391. The court of appeals also decided that reasonable suspicion did not exist to justify appellant’s detention for DWI. Foster, 297 S.W.3d at 394. The court of appeals acknowledged that this Court no longer employs the “as consistent with innocent activity as with criminal activity” test for reasonable suspicion. Foster, 297 S.W.3d at 393. Nevertheless, the court of appeals decided that “the plausibility of an innocent explanation [for the lurching movements] in this case affects [the] determination of whether there was a reasonable basis for suspecting that Foster was intoxicated.” Id. The court of appeals also decided that the time of night and location, standing alone and in combination with the lurching movements, were insufficient to support a reasonable suspicion of intoxication. Id. (“Intoxication cannot be inferred from the lurching movements alone, and while the lurching movements may be more suggestive of intoxication when combined with the location and time of night, the combined weight of these circumstances is not so much greater than the aggregation of their individual weights that it allows for a rational inference of intoxication.”). We granted the State’s discretionary-review petition on two grounds which present the following issues:

1. Whether the Third Court erred in applying the “as consistent with innocence as with criminal activity” standard in analyzing the totality of the circumstances and determining whether the officers had reasonable suspicion to detain.⁷
2. Whether the Third Court failed to give appropriate deference to the trial court’s implied factual findings when it held that Foster was detained “when he found himself barricaded on the front and side by two vehicles, one of which was a marked police car.”⁸

A law enforcement officer may stop and briefly detain a person for investigative purposes on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1 (1968). In order to stop or briefly detain an individual, an officer must be able to articulate something more than an “inchoate and unparticularized suspicion or `hunch.'” Id. at 21. Specifically, the police officer must have some minimal level of objective justification for making the stop, i.e., when the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Id. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Woods, 956 S.W.2d at 38.

The court of appeals cited to this Court’s decision in Curtis in support of its decision that “the plausibility of an innocent explanation affects [the] determination of whether there was a reasonable basis for suspecting that appellant was intoxicated.” See Foster, 297 S.W.3d at 393 (citing Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007)). However, this is contrary to this Court’s opinion in Curtis, which reiterated our previous rejection of this standard. See Curtis, 238 S.W.3d at 378 (court of appeals’s decision that there could have been a number of “non-intoxicated-related reasons” for the driver’s weaving was an application of the rejected “as consistent with innocent activity as with criminal activity” standard”).

Our decision in Curtis also supports a decision that time of day is a relevant factor in determining reasonable suspicion. See Curtis, 238 S.W.3d at 380-81 (officers’ testimony that they saw defendant’s car weaving in and out of his lane several times over a short distance late night rationally supported an inference that the driver could be intoxicated). Similarly, we believe that location near a bar district where police have made numerous DWI arrests is also a relevant factor in determining reasonable suspicion.

Keeping in mind that the Fourth Amendment totality-of-the-circumstances test requires only “some minimal level of objective justification” for the stop in this case, we hold there was reasonable suspicion for the police to have believed that appellant may have been intoxicated. In light of the time of night, the location, Thomas’s training and experience, and Foster’s aggressive driving, it was rational for Thomas to have inferred that appellant may have been intoxicated, thus justifying a temporary detention for further investigation. See Curtis, 238 S.W.3d at 381 (“The officers testified that they observed appellant’s car weaving in and out of his lane several times, over a short distance, late at night. A `rational inference’ from these facts could be that the driver was intoxicated. When viewed in light of the training officer’s extensive experience in detecting intoxicated drivers, coupled with both officers’ training to use the driver’s weaving specifically as an indicator of intoxicated driving, the trial court could have reasonably concluded that the articulated facts gave rise to enough suspicion to justify at least an investigation.”). Thomas articulated “something more than an inchoate and unparticularized suspicion or hunch” that objectively justified appellant’s detention. See Sokolow, 490 U.S. at 7 (internal quotes omitted). We find the trial court’s ruling to be supported by the record and the law. See id.

The judgment of the court of appeals is reversed, and the judgment of the trial court is affirmed.

The Case is Foster v. State, Number PD-0001-10, Delivered December 8, 2010.