BRANDON CHASE WALKER, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed February 16, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00139-CR
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BRANDON CHASE WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 4
Dallas County, Texas
Trial Court Cause No. MB08-65363-E
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OPINION
Before Chief Justice Wright and Justices Richter and Fillmore
Opinion By Justice Fillmore
        Brandon Chase Walker pleaded no contest to possession of two ounces or less of marijuana and was sentenced to nine months of deferred adjudication community supervision and assessed a three hundred dollar fine. In two issues, he argues the trial court erred by denying his motion to suppress in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution, which provide protections against unreasonable searches and seizures. We reverse the trial court's judgment.
Factual and Procedural Background
        Dallas Police Officer Brent Wing testified that, on the evening of October 11, 2008, at approximately 8:45 p.m., he was on patrol with Sergeant Moises Ochoa when they received a dispatch regarding a “suspicious vehicle” in the “5900 block of Columbia” in Dallas County, Texas. Both officers testified this was a “high crime area” known for “a lot of” drug usage, shootings, and burglaries of residences and motor vehicles. The police dispatch was based on a 911 telephone call that, according to Wing, had reported a suspicious “dark colored pick-up truck . . . that . . . had been in and out of the area over the last couple of days.” The caller thought the occupants of this vehicle “might be up to some illegal activities.” The officers were only a few blocks away when they received the dispatch notification. Wing and Ochoa went to the area, observed a dark colored pick- up truck pass them, and immediately “turned around and initiated a traffic stop to investigate further.” The identity of the 911 caller was not known to Wing, and he did not observe the commission of any traffic violation by the driver of the vehicle. Wing stated the officers made the stop because they saw “a vehicle matching the suspicious vehicle call that we had been dispatched to the area for.”
        Sergeant Ochoa testified the officers “got a call about a suspicious vehicle at a certain location. We responded to the location and we saw a vehicle that fit the description that was provided to us by a citizen, and we basically pulled him over.” Ochoa said the description they received was “of a green Chevy pick-up.” Ochoa testified they found a vehicle matching this description “in the same location the call came from.” He did not know the identity of the 911 caller and he did not witness the commission of any traffic violation by the driver of the vehicle.
        Walker was charged by information with possession of marijuana that was discovered after the stop of his vehicle. Shortly before the start of trial, Walker filed a motion to suppress all evidence concerning drugs seized from his person and statements made while he was in custody on or about October 11, 2008. Walker's motion claimed the drugs were seized pursuant to a search that was conducted in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Texas Constitution, as well as articles 1.06 and 15.02 of the Texas Code of Criminal Procedure.   See Footnote 1 
        Officer Wing and Sergeant Ochoa were the only witnesses who testified at the suppression hearing. After both sides rested and made their closing arguments,   See Footnote 2  the trial court stated “a 911 call which indicates that there is concern or worry over a vehicle that has been left in a place or that is driving around in a place is--does provide reasonable suspicion, I believe, for an officer to stop that vehicle.” The court then denied the motion to suppress. Walker later pleaded no contest to the underlying offense, subject to the appeal of the pretrial motion to suppress. Punishment was assessed at nine months deferred adjudication community supervision and a three hundred dollar fine.
Discussion
        Walker's first and second issues claim the trial court erred, in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Texas Constitution, when it denied his motion to suppress because he “was detained on the basis of an anonymous 911 call which was unreliable and uncorroborated by any facts within the officers' personal knowledge.”
         Standard of Review                
        We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts, particularly when the trial court's fact findings are based on an evaluation of credibility and demeanor. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Randolph, 152 S.W.3d at 769. We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We apply a de novo review to mixed questions of law and fact not turning on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89; see also State v. West, 20 S.W.3d 867, 870-71 (Tex. App.-Dallas 2000, pet. ref'd).
        Where, as in this case, the trial court does not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that are supported by the record. Ford, 158 S.W.3d at 493. We will uphold the trial court's decision provided it is correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
         Applicable Law
 
 
        When a police officer stops a defendant without a warrant, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Ford, 158 S.W.3d at 492. Under the Fourth Amendment to the United States Constitution,   See Footnote 3  an officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion of criminal activity, even if the officer lacks probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)). “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.” Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Woods, 956 S.W.2d at 38.
        In determining what constitutes reasonable suspicion, “[w]e look only at those facts known to the officer at the inception of the stop-a stop or search unlawful at its inception may not be validated by what it turns up.” State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.-Austin 2007, pet. ref'd). The reasonableness of a temporary detention is examined in terms of the “totality of the circumstances” at its inception. See Woods, 956 S.W.2d at 38; Griffey, 241 S.W.3d at 703-04. We are not to consider individual circumstances in isolation, and the facts known to the officer must amount to something more than an inchoate and unparticularized suspicion or hunch. Woods, 956 S.W.2d at 35. The Supreme Court has explained that individual factors “quite consistent with innocent travel” may collectively amount to reasonable suspicion. See United States v. Arvizu, 534 U.S. 266, 274-75 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 9 (1989)).
        The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information from another person. Brother, 166 S.W.3d at 257. The reliability of a citizen-informant is generally shown by the very nature of the circumstances under which the incriminating information became known to him or her. Id. at 258. A stop based on facts supplied by a citizen-eyewitness, which are adequately corroborated by the arresting officer, does not violate the Fourth Amendment. Id. at 259. Corroboration does not mean the officer must personally observe the conduct that causes him to reasonably suspect a crime is being, has been, or is about to be committed. Id. at 259 n.5. “To require officers who are apprised of detailed facts from citizen-eyewitnesses to observe suspects and wait until additional suspicious acts are committed, would be foolish and contrary to the balance of interests struck in Terry and its progeny.” Id. at 259. “Rather, corroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable and a temporary detention is thus justified.” Id.         
        We distinguish information provided by an identified citizen from information produced by a purely anonymous tip. See Florida v. J.L., 529 U.S. 266, 270 (2000) (holding that anonymous 911 call lacked sufficient indicia of reliability for showing reasonable suspicion where caller reported that young man standing at particular bus stop wearing plaid shirt was carrying a gun). A tip by an unnamed informant of undisclosed reliability may justify initiation of an investigation but, standing alone, it rarely establishes the requisite level of suspicion necessary to justify an investigative detention. See id. at 269-70; Alabama v. White, 496 U.S. 325, 329 (1990); Johnson v. State, 146 S.W.3d 719, 721 (Tex. App.-Texarkana 2004, no pet.); Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.-Austin 2000, pet. ref'd). However, there are situations in which the anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability from which a police officer may reasonably conclude that a detention is justified. J.L., 529 U.S. at 270. The corroboration of details that do not indicate criminal activity will not lend support to the anonymous tip. See Johnson, 146 S.W.3d at 721; Stewart, 22 S.W.3d at 648. If it is to provide reasonable suspicion for a Terry investigatory stop, the anonymous tip must prove reliable in its assertion of unlawful conduct, not just in its tendency to identify a particular person. See J.L., 529 U.S. at 272; Johnson, 146 S.W.3d at 721.
        Where the reliability of information received from an informant “is increased, less corroboration is necessary” to justify an investigative detention. State v. Stolte, 991 S.W.2d 336, 341 (Tex. App.-Fort Worth 1999, no pet.); see also White, 496 U.S. at 330. A detailed description of the wrongdoing, along with a statement the event was observed firsthand, entitles an informant's tip to greater weight. Illinois v. Gates, 462 U.S. 213, 234 (1983). A tip also deserves greater weight if the informant puts himself in a position to be easily identified and held accountable for his intervention. See Mitchell v. State, 187 S.W.3d 113, 117 (Tex. App.-Waco 2006, pet. ref'd); Pipkin v. State, 114 S.W.3d 649, 655 (Tex. App.-Fort Worth 2003, no pet.); State v. Garcia, 25 S.W.3d 908, 913 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Unsolicited information given to police in a face-to-face conversation should be given serious attention and greater weight by the officer even though the informant did not identify himself or herself. Bilyeu v. State, 136 S.W.3d 691, 694-95 (Tex. App.-Texarkana 2004, no pet.); Garcia, 25 S.W.3d at 913.
         Analysis
        In this case, Walker was stopped because an informant placed a 911 telephone call reporting that a suspicious green Chevy truck had been seen in the area. The State claims a rational inference could be made that the police knew the caller's telephone number because the officers were dispatched to “the same place the call came from,” and Sergeant Ochoa's statement that he could not remember the caller's name “off the top of [his] head” suggests “he could have accessed such information.” However, there is no evidence in the record showing that the officers actually knew the caller's identity. The State also suggests, citing Justice Kennedy's concurring opinion in J.L., that the reliability of the tip was increased because caller identification technology would have allowed the police to trace the caller's identity. See J.L., 529 U.S. at 276 (Kennedy, J., concurring). But Justice Kennedy's concurring opinion in J.L. did not endorse the broad assumption of anonymous caller reliability; instead, he suggested that caller identification technology may bolster the reliability of anonymous tips if there are facts to suggest the police are able to use the phone number to find the informant. See id. (“. . . the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips.”). The State does not point to any evidence in the record indicating that the police actually knew the informant's telephone number, or, if they did, that they were able to determine the informant's identity. Thus, since the record in this case does not establish the informant's identity, we treat the information provided as an anonymous tip. See Bilyeu, 136 S.W.3d at 694-95; State v. Fudge, 42 S.W.3d 226, 230 (Tex. App.-Austin 2001, no pet.); Garcia, 25 S.W.3d at 912-13.         
        The evidence shows that there was no corroboration by the officers at the time of the stop that suggested a crime had occurred, was occurring, or was about to occur. The officers did not see Walker commit any traffic violation nor did they witness any other violation of the law. Their decision to stop Walker was based entirely on information supplied by the anonymous informant. However, the caller in this case did not report any criminal activity, only a suspicion of illegal activity based on an unfamiliar pick-up truck traveling “in and out” of an area “over the last couple of days.” Although the general area where Walker was stopped was known to be a “high crime area,” the officers did not indicate that any criminal activity had been reported in that area at the time of the stop. The fact that there had been criminal activity in the area at some point prior to the stop, but not known to have been committed by Walker, is not sufficient to corroborate the anonymous tip. See Johnson, 146 S.W.3d at 722. Furthermore, one's mere presence on a street in a high crime area at night does not provide reasonable suspicion sufficient to authorize an investigatory stop. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“an individual's presence in the area of expected criminal activity, standing alone, is not enough to support reasonable particularized suspicion that [a] person is committing a crime”). As the Supreme Court emphasized in J.L., an anonymous tip does not become reliable simply because it accurately describes the defendant and the defendant's current location. See J.L., 529 U.S. at 272. Reasonable suspicion requires that the tip be reliable in its assertion of unlawful conduct, not just in its tendency to identify a particular person. See id. The reliable assertion of unlawful conduct was missing here.   See Footnote 4 
        Decisions from several other courts fortify our conclusion the anonymous tip in this case failed to provide reasonable suspicion for a Terry investigatory stop. In Johnson v. State, for example, an officer conducted an investigatory stop of a 1999 black Ford Taurus based on an anonymous telephone call that indicated it had been involved in possible drug activity at a “specific apartment complex.” Johnson, 146 S.W.3d at 721. The caller reported the vehicle's license plate number and the officer testified he had personal knowledge of recurring drug and gang activity at the apartment complex. Id. The court noted the officer's specific knowledge of criminal activity in the apartment complex, but concluded that, without anything further, there was insufficient corroboration of the anonymous tip. Id. at 722.
        In Stewart v. State, an officer detained a subject for DWI based on an anonymous tip from a caller who stated that the driver of the vehicle appeared to be highly intoxicated and “fell down a couple of times trying to get into the vehicle.” Stewart, 22 S.W.3d at 648. An officer arrived on the scene and followed the vehicle described by the unidentified caller, but did not observe any traffic violations or other activity to corroborate the tip. Id. Because the detention was based solely on the anonymous caller's tip, which was “uncorroborated in its assertion of possible illegality,” the court concluded the detention was not sufficiently supported by a reasonable suspicion that the driver was intoxicated. Id. at 650.
        In Davis v. State, 989 S.W.2d 859 (Tex. App.-Austin 1999, pet. ref'd), an officer received a report of reckless driving from the police dispatcher that was based on an anonymous cellular telephone call. Id. at 861. The caller reported the suspect vehicle's description, location, and direction, and stated that three white males inside the vehicle were “possibly smoking marijuana.” Id. The informant did not leave a name or address with the dispatcher, and no one stopped at the scene claiming to be the informant. Id. The officer did not observe any violations of the law and stopped the vehicle based solely on the information in the dispatch. Id. The court concluded that the trial court erred by denying the defendant's motion to suppress and noted that, under the totality of the circumstances, “the anonymous tip, uncorroborated as to its significant aspects by independent police work, did not exhibit sufficient indicia of reliability to justify the investigative stop of the vehicle in which appellant was a passenger.” Id. at 865.
        In the present case, because the anonymous tip did not reliably assert unlawful conduct on the part of Walker and was not corroborated by additional facts, it follows that the officers lacked reasonable suspicion to stop him. See Johnson, 146 S.W.3d at 722; Stewart, 22 S.W.3d at 649; Davis, 989 S.W.2d at 864. We therefore conclude the trial court erred by denying Walker's motion to suppress. We reverse the trial court's judgment and remand this cause to the trial court.
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
090139F.U05
 
Footnote 1 Although Walker now raises separate issues regarding the United States and Texas Constitutions, our analysis remains the same under either constitution. See Johnson v. State, 912 S.W.2d 227, 235-36 (Tex. Crim. App. 1995) (requirements for determining when person is seized under Article I, section 9 of Texas Constitution are same as under Fourth Amendment of United States Constitution); see also May v. State, 780 S.W.2d 866, 869 (Tex. App.-Dallas 1989, pet. ref'd) (article I, section 9 of Texas Constitution does not impose greater restrictive standard than Fourth Amendment). Consequently, because Walker does not distinguish between the federal and state grounds upon which he bases his arguments, we address those claims together. See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex. Crim. App. 2000); Lane v. State, 971 S.W.2d 748, 752-53 (Tex. App.-Dallas 1998, pet. ref'd).
Footnote 2 Closing arguments for both sides were made outside of the record.
Footnote 3 The Fourth Amendment guarantee against unreasonable searches and seizures was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 650 (1961).
Footnote 4 While the State cites a case where a citizen-informant's tip was used to establish probable cause, that case is distinguishable because, unlike the present case, it involved a specific report that indicated criminal activity. See Webb v. State, 760 S.W.2d 263, 273-74 (Tex. Crim.App. 1988) (upholding stop based on citizen's report that two suspects had just committed robbery). Likewise, Beale v. State, No. 05-07-00855-CR, 2008 WL
2426672 (Tex. App.-Dallas June 17, 2008, pet. ref'd) (not designated for publication), which is also cited in the State's brief, is distinguishable because we concluded in that case that the informant was not anonymous since the police had the caller's telephone number and address. Id. at *3. We also noted the caller provided “significant” details regarding the suspicious vehicle and that those details were corroborated by the officer's own observations after he arrived at the scene. Id.