IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1297-04

THE STATE OF TEXAS, Appellant

v.

STEPHEN JOHN HOLCOMBE, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Hervey, J., filed a concurring opinion in which Keasler, J., joined.

CONCURRING OPINION

The trial court granted appellee's motion to suppress based on its decision that the City of Bedford noise ordinance is unconstitutional. The Court of Appeals also addressed that issue. The constitutionality of the ordinance is, therefore, properly before this Court. ⁽¹⁾

The police were in a residential neighborhood at 2:30 a.m. in response to complaints about a loud party at a house where the police issued a citation for violating the City of Bedford noise ordinance. See State v. Holcombe, 145 S.W.3d 246, 248-49 (Tex.App.-Fort Worth 2004). Appellee was driving through the neighborhood with his car stereo playing music louder than the noise at the house. See id. A police officer flagged appellee down and asked him to turn down the volume of his car stereo. See id. The officer immediately noticed that appellee was probably intoxicated. See id. Appellee turned down the volume of his car stereo and drove off. See id. Suspicious that appellee was intoxicated, the police stopped appellee's car again and eventually arrested him for DWI. See id.

Evidently believing that the police acted unreasonably under the Fourth Amendment when they stopped appellee and asked him to turn down his car stereo at 2:30 a.m. in a residential neighborhood, appellee filed a motion to suppress "all evidence" in the DWI case. Appellee's motion to suppress made no claim that the police were enforcing an unconstitutional noise ordinance when they stopped appellee's car and asked him to turn down the volume of his car stereo. ⁽²⁾ At the suppression hearing, appellee limited his written suppression motion to the initial stop, however, at the suppression hearing, the constitutionality of the noise ordinance became the dispositive issue.

The police officer (Riley) who initially flagged appellee down testified at the suppression hearing that he did not believe that appellee was "tied" to the house where the police had issued a citation for violating the noise ordinance. Riley testified that his initial stop of appellee's car "was to do with the city ordinance" even though he did not intend "to cite [appellee] for loud noise."

Q. [STATE]: Okay. How-Okay, let me ask you this. After you heard [appellee's] vehicle, what did you do?

A. [RILEY]: I looked up, watched the vehicle come towards me. Because the music was so loud and because I had just come from a loud noise disturbance where I issued a citation, I flagged [appellee] down just to have him turn the stereo down inside his car.

Q. Okay. So would it be safe to say then the reason you stopped the vehicle was to do with the city ordinance?

A. Yes, sir, loud noise violation.

Q. Were you going to cite him for loud noise?

A. No, sir, I was not. I was just going to have him turn the stereo down.

In closing arguments to the trial court both parties agreed that the initial stop of appellee by the police related to the noise ordinance. The State claimed that the stop was valid because Riley was "fully within his legal right to make contact with [appellee] and ask him to turn the radio down." Appellee claimed that the stop was invalid "because very loud music by itself is not definite enough." The trial court granted appellee's motion to suppress "all evidence" based on its finding that the "stop of [appellee] was invalid because the City of Bedford noise ordinance which was the basis for the initial stop of [appellee] is unconstitutional due to its being overbroad." ⁽³⁾

I agree with the Court that the City of Bedford noise ordinance does not violate the Constitution. I write separately only to suggest that this holding should not be read to foreclose other issues that might have some bearing on whether evidence in cases like this should be excluded or suppressed. See, e.g., Illinois v. Krull, 480 U.S. 340, 349-50 (1987) (federal exclusionary rule inapplicable when police reasonably rely on a statute later deemed unconstitutional); Article 38.23(a), Tex. Code Crim. Proc., (plain language requiring exclusion of evidence "obtained" in violation of the law arguably does not require exclusion of "fruits" evidence); State v. Daugherty, 931 S.W.2d 268, 270-71 (Tex.Cr.App. 1996) (discussing meaning of "obtained" in Article 38.23(a)); Chavez v. State, 9 S.W.3d 817, 823 (Tex.Cr.App. 2000) (Price, J., concurring) (Article 38.23(a) should apply only where a defendant's personal or property rights are illegally violated in the obtainment of evidence against him).

With these comments, I join the Court's opinion.

Hervey, J.

Filed: March 22, 2006

Publish

1. The ground upon which the Court granted review states:

Is a city ordinance that prohibits playing music "in such a manner as to . . . unreasonably disturb or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities" unconstitutionally vague because it fails to put the citizenry on notice of what is prohibited, fails to contain objective standards, and gives the police unfettered discretion to determine what conduct amounts to a violation?

2. Appellee's motion to suppress asserted that appellee's arrest was "without valid warrant or reasonable suspicion or probable cause." The motion to suppress further asserted that the "officer's reason to seize the defendant's vehicle cannot reach beyond the burden of reasonable suspicion because the officer did not witnesses [sic] an offense of anything's [sic] out of the ordinary or did the officer observe anything other than valid non-suspicious activity."

3. This apparently is an application of the federal constitutional "fruit of the poisonous tree" doctrine which generally requires the exclusion of evidence that is the "fruit" of a violation of a defendant's rights. See generally Wong Sun v. United States, 371 U.S. 471 (1963); Kothe v. State, 152 S.W.3d 54, 60-61 (Tex.Cr.App. 2004).