*1 can detain the driver of the Because the court of appeals got right, it I respectfully dissent. vehicle. The officer this case had no knowledge specific activity that had suspicion, the caller’s and the offi-
created cer never claimed that he had reasonable Still, Appellant. to detain says majority “appellant’s strangely non-criminal, admittedly if persistent, be- havior, gave rise to a reasonable that he engage was about to criminal
activity.” only thing The about the call-in tip that the officer corroborated was MARTINEZ, Appellant, John David
description Appellant’s car. The officer no specific, articulable facts from develop suspicion. which to The STATE Texas. suspi-
I also do not see how “reasonable PD-1238-10, engage cion he was about to in criminal Nos. PD-1239-10. activity” allows an officer to someone. of Criminal Appeals of Texas. thought you already I had to have commit- ted a crime or an officer had to observe June you They a crime. have committing might gotten by community care-taking with a
theory buying but I’m not antici- into the patory illegal proposal. behavior Never-
theless it’s the law now.
I’m not saying that 911 caller has to specific penal cite a code section when reporting suspicious activity, general but a
description of non-threatening, non-crimi- behavior,
nal neither that is observed nor officer, corroborated is not suffi- ciently detailed and reliable information suggest something apparent-
“to of an ly brewing.” criminal nature is The ma- (a jority says the behavior grinning driver him) people at the in the car next to was observed the 911 caller was “bi- “reasonably zarre” suggests someone looking criminally exploit who was some vulnerability weak or isolated individu- —a
al to rob or an burgle.” unattended auto to maybe, just maybe, Appellant
Or could looking give have been for someone to him directions. *3 Balovich, M.
Julie Asst. Public Defend- er, Rio, Appellant. Del for Winters, Prosecutor, Special Carter Boise, McMinn, Attorney, Lisa State’s C. Austin, for State.
OPINION J.,
JOHNSON, opinion delivered the of MEYERS, PRICE, Court which WOMACK, KEASLER, HERVEY, COCHRAN, ALCALA, JJ„ joined. stemming In two cases from the same incident, charged appellant the state with (DWI) driving pos- while intoxicated marijuana. session of Appellant filed his suppress upon motion to based claims that investigatory the initial detention was without cause or probable reasonable sus- picion subsequent and that arrest and appellant’s search of and vehicle probable was without cause. After an evi- dentiary hearing, trial court denied appellant’s Appellant plead motion. then guilty charges, to both and the trial court days’ at 180 punishment assessed confine- ment, months, for 12 probated and a $500 possession charge, fine for the and 180 confinement, months, days’ probated for 12 for the DWI charge. and a fine $600 of Appeals The Fourth Court affirmed appellant’s convictions. Martinez v. (Tex.App.-San Antonio Appellant pet. granted). filed motion for a motion for rehearing and reconsideration banc, which en both of were overruled. alcohol strong detected a odor of appellant’s petitions granted This Court bloodshot, review, appellant After discretionary review.1 and noticed for not have rea- that the officer did glassy eyes. we find investigatory to make an sonable told that his therefore, vehicle, and appellant’s of a vehicle description truck matched the in affirming erred appeals the court in a theft. called possible involved Accordingly, we appellant’s convictions. complaint if there was a dispatch to see remand the causes to the reverse and location, stolen at that and dis- proceedings. further appeals court of for *4 him that there was not. patch informed dispatch He then asked if the caller could Facts The caller arrived at come to the scene. the location of the detention and confirmed undisputed. are Officer Paul The facts over the same Hurley pulled Hurley Department Del Rio Police of the up bicycles. the two picked truck that had Sunday night. At patrol was on on a 10:55 name Hurley Officer did not know the of dispatcher radioed that an p.m., police the caller, but did not believe that the that a male anonymous reported any relationship to the Del Rio stopped truck caller had driving a blue Ford Department. of 17th and Main Police After he administered intersection Streets, bicycles field-sobriety two into the back of tests and a blood-alcohol test put truck, away Breathalyzer, and drove westbound. a Officer using portable area Hurley patrol general was on appellant arrested for DWI. His green a F-250 truck that spotted Ford subsequent search of his approximately like it was blue”2 “looked produced vehicle a usable amount of mari- quarters away three of a mile from the site juana. charges sup- No were filed in the reported began of the He follow- incident. posed bicycles. theft of the ing dispatch the truck and called to con-
firm
description.
the vehicle
He trailed
of Review
Standard
the truck
observing
for four blocks without
ruling
In review of a trial court’s
violations,
any traffic
then
stopped
ve-
suppress,
appellate
on a motion to
an
court
hicle.
he walked to
of the
As
driver’s side
apply
must
a standard of abuse of discre
truck,
noticed,
in the truck
bed,
ruling
tion and overturn the trial court’s
two
that were not visible to
only if it
the zone of reasonable
him until he
the truck.
is outside
approached
While
driver,
speaking
appellant,
disagreement.3
appellate
with
the truck’s
The
court must
grounds
granted
investigative
1.The
three
that this Court
duct an
detention of a male
review are whether:
driving
a blue Ford
truck based on
report
appeals improperly
tipster’s
The
relied
that a
court of
upon corroborating
up
information obtained
description stopped, picked
of that
inception
the officer
of a
bicycles, and drove off.
after
justify
anonymous tipster’s
reliance on an
report;
I R.R. at 14.
police
A2.
officer's belief that an incident
"suspicious”
specific,
is a
articulable fact
Dixon,
(Tex.
3. State v.
supports
suspicion
justify
reasonable
Crim.App.2006).
individual;
investigative
detention of an
3. The Fourth
Texas
Amendment
permit
Constitution
a
officer to con-
review, giv-
a
standard of
apply
suspicion
bifurcated
mination of reasonable
is depen-
upon
dent
both the
ing almost total deference to a trial court’s
content of the informa-
tion known to the
degree
officer and its
determination of historic facts and mixed
reliability.9
justify
To
investiga-
further
rely upon
of law and fact that
questions
tion,
the state must
witness,
show
at the time
credibility
applying
but
detention,
specific,
officer had
pure ques-
de novo standard of review to
articulable facts that established reason-
tions of law and mixed
questions
do
able suspicion.10 Those facts must show
depend
credibility
not
on
determinations.4
activity,
unusual
some evidence that con-
only
was the
witness to nects the detainee to the
activity,
unusual
testify during appellant’s evidentiary hear-
and some indication that the unusual activ-
ing. The historical facts elicited from Offi-
ity is
related
crime.11
issue;
Hurley’s testimony
cer
are not at
the issue is whether these uncontroverted
When an
officer’s
facts created a
such criminal activity arises from an anonymous
*5
justified
that Officer
in initiat-
caller rather than from the officer’s own
ing Terry stop.5 We review the record
observations,
tip
provides
seldom
rea
de novo.
sonable
for an investigatory
stop.12 The tip lacks “sufficient
indicia
suppression hearing,
At a
reliability,” such as a
level of po
suitable
state need not establish that a crime oc
corroboration,13
lice
to establish the “requi
prior
investigatory stop,
curred
to the
but
quantum suspicion.”14
site
An inverse
testimony
it must elicit
showing sufficient
relationship
reliability
exists between the
prove
facts to
that reasonable suspicion of the informant and the amount of corrob
particular person
existed that a
en
has
required
justify
orated information
in,
in,
gaged
engaging
or soon will be
intrusion;
police
the less reliable the tip,
activity.6
criminal
This standard
an ob
is
the more information is needed.15 Howev
one;7
jective
will
the court
take into ac
er,
provides
when the informant
self-iden
count the
in
totality of the circumstances
tifying information that makes himself ac
intervention,
order to determine whether a reasonable
degree
countable for the
stop.8
reliability significantly
existed for the
The deter-
improves.16
State,
85,
266, 271,
4.
v.
955 S.W.2d
87-89
10. Florida v.
529 U.S.
120 S.Ct.
Guzman
1997).
1375,
(2000);
(Tex.Crim.App.
Terry,
Analysis
retroactively.
In Deri-
not be obtained
that,
chsweiler,22
in a
this
articulated
appeals determined
The court of
information
analysis, any
reasonableness
testimony es
was no
although there
dispatcher
imputed
is
police
known to the
be
a continued conversation
tablishing
detaining officer. The record
to the
police dispatch,
tween the informant and
that the
dis-
Derichsweiler showed
was able to
very
dispatch
fact that
line with the call-
remained on the
patcher
the caller to the scene establishes
direct
er,
name,
knew the caller’s
and asked
maintained contact. There
that the two
scene; the caller’s
concluded,
to remain at the
fore,
the informant
the court
degree
Here,
of reliabili
higher
was entitled to
reliability was not at
issue.
In its
truly anonymous
than a
caller.17
ty
dispatch
record does not
indicate
this case to
opinion,
compared
the court
bones,
more than the bare
anything
knew
Hawes,19
Sailo,20
in which
Reesing,18,
inaccurate,
that was
information
somewhat
courts found the
respective appellate
Hurley.
to Officer
provided
because
anonymous tipsters to be reliable
position
in a
they placed themselves
dispatch
reveal how
Nor does the record
they
easily
which
could be
identified and
to the
later able to direct the caller
held accountable.
testimony presented during
scene. The
hearing
suppress
on the motion
distinguishable
This case
to disallow the inference
tends
*6
cases,
from
however. This record
those
throughout.
It
caller maintained contact
indicates that the
caller did not
contact,
that the
maintained
may be
two
to
provide any identification information
caller,
required
that would have
but
Hurley or
not fol
dispatch,
Officer
to
did
clearly
appellant’s
not follow
vehi-
who
did
vehicle,
was not
suspect’s
low the
and
cle,
for well
to remain on the line
over
stop.
present at
the scene before the
minutes, the time between the initial
seven
appear
the caller did
at the
While
scene
Hurley’s request
and Officer
that
dispatch
offi
stop,
after the
“the reasonableness of
may
that
go
to the scene.
It
be
by
cial
must be measured
what
dispatch obtained the caller’s number from
they
the officers knew before
conducted
search;”21
contact
suspicion can-
caller ID.23 However the second
their
reasonable
State,
255,
Sailo,
184,
(Tex.
(Tex.
910
188
16. Brother v.
166 S.W.3d
257
20. State v.
S.W.2d
1995,
ref’d) (citizen
Crim.App.2005).
App.-Fort
pet.
Worth
stopped
give police
person,
information
State,
at
17.
v.
318 S.W.3d
28.
Martinez
instruction).
waited on side of road at officer’s
State,
732,
(Tex.
Reesing
18.
v.
140 S.W.3d
737
2004,
ref'd) (caller
266, 271,
App.-Austin
pet.
identified
21. Florida v.
529 U.S.
120 S.Ct.
State,
1375,
(2000);
himself and officer knew that caller remained
254
Crain v.
L.Ed.2d
vehicle,
suspect's
phone,
on cell
followed
43,
(Tex.Crim.App.2010).
315 S.W.3d
53-53
give
police).
waited at scene to
statement to
State,
v.
22. Derichsweiler
348 S.W.3d
State,
535,
(Tex.
19. Hawes v.
125 S.W.3d
(officer
App.-Houston
pet.)
no
[1st Dist.]
(Tex.
caller,
driver,
Martinez
knew that the
a tow-truck
was
(2009),
(Sim
granted)
App.-San
pet.
Antonio
following suspect and observed a tow-truck
J.,
caller).
mons,
dissenting).
description given by
that matched
made,
identifying
was
the caller’s
informa-
textual factors that reasonably connected
tion
not
before the stop,
theft,
was
revealed
so at
the unusual activity to a
such as
time,
anonymous,
the caller
witnessing
was
suspect
use bolt cutters to
tip
should have been accorded the
cut a bike lock or stating that the bikes
reliability
accompanies
that status.
were taken from
garage.
someone’s
More
than the
opinion
officer’s
activity
is
Hurley
specific,
Officer
had neither
ar-
“suspicious” was needed to relate the ac-
necessary
ticulable facts nor the
level of
tivity
ato criminal act.26
police corroboration that
required
produce
thereby
Finally,
Officer
very
little
information,
warrant an investigative detention. The
otherwise,
corroborated or
facts
activity
must show that an unusual
connect
to the unusual activity
occurred, the unusual activity is related to other than the fact that appellant was driv-
crime,
and the
ing
truck,
detained
had some
Ford
similar in color to
Here,
activity.24
truck,
connection to the unusual
the described
close to the time that
activity
reported
unusual
late
activity occurred,
the unusual
and within
night,
at
a blue Ford pickup
stopped
truck
three quarters of a mile
report-
west of the
the intersection
17th
and Main ed incident.27 Even though
Street, put
into the
bed
his was informed
alleged
that the
suspect was
truck,
male,
and left the area going west. This
he testified that he would have
unusual,
activity was
pulled
and the officer’s con-
over a
Ford
truck
driven
clusion,
“suspicious,”
that this act was
a woman.
approached
Before he
the truck
given
a reasonable one
experi-
officer’s
after
stop,
did not see
ence
day
and the time of
at which the
any bicycles
truck,
appellant’s
the bed of
activity
place.25
took
any
nor did he have
other reason to stop
articulable,
the truck.
specific,
The
cor-
However, the court of appeals made the
roborated facts known
the officer at the
*7
conclusory determination that the unusual
stop
time of the
were minimal.
activity was related to criminal activity by
stating that Officer Hurley considered the
In this court’s recent
decision Deri
report
chsweiler,
call to be a
of a theft. As the
an informant and his wife re
indicates,
record
there
ported
was neither a com-
they
that a man
did not know
plainant
a report
bicycles.
nor
of stolen
pulled his car beside theirs in a Mc
anonymous
The
report
lane,
caller did not
con-
drive-through
Donald’s
stared at
Derichsweiler,
(5th Cir.2008)
vehicle, circling park- and that it was (in or a light facts of either McDonald’s. This ing caller) lot of Wal-Mart and non-anonymous justify a traffic that, although assuming held the information even stop. I would hold the officer had anonymous, the caller was to the conclusion provided need not lead justify facts to a traffic enough articulable penal-code that an identifiable offense has stop. occurred, must be suf- the information still
ficiently support detailed and reliable to was anon- said ac- the reasonable that criminal Nevertheless, asked ymous. the officer tivity is about to occur. caller, and the call- dispatch to contact the up er showed at the location *8 Even with the information known to today’s identify vehicle. Under appellant’s the as well as dispatcher, both officer and dispatch technology, possible it is that information, having a known source for the regardless the caller could have contacted this declared that the case in Deri identified himself. of whether the caller “admittedly was a close call.”29 chsweiler dispatcher, the or put The State did not Here, less, significantly else, to detail anyone on the witness stand reliable, minimal, information: a and less the the were able to direct just police how description inaccurate of the somewhat Hurley’s to the Given Officer scene. caller, vehicle, suspect anonymous a anony- statement that the caller was own area, larger suspicious mous, search and no be assumption the operate I will under the by the officer. that such is case.1 havior observed Id. at 917.
927 So, blue, pickup But Officer had several articula- the truck looked it was Ford, a it was it was moving, close to the ble base a traffic stop. facts on which to incident, location of it being was driven p.m. He at 10:55 It dispatch received the man, by a bed of truck was open, night, and traffic was a dark but clear was and traffic at the light late hour of A light at that late caller had de- hour. night. enough These were give facts to up bicycles picking scribed a man and stop to placing them in the bed of a blue Ford the truck to if any bicycles see there were pickup particular truck in a area of town. in its bed. Seven receiving dispatch minutes after respect stops With to traffic for DWI or area, and he driving spotted towards the a jurisdictions reckless driving, several have green pickup dark Ford truck at phone held that an anonymous call that night, looked like it was blue. The vehicle, accurately describes the without truck was one-half to three-fourths of a more, may justify stop prevent a brief to a mile which bicycles from the area in possible investigate accident possible and a were truck taken. The had an DWI.3 Although premised these cases are bed, open part were visible.2 on the though danger no the reckless 266, 275, 44, Hanning, 529 3.See But see Florida v. U.S. State v. 52-53 1375, (2000) (Ken- Wells, (Tenn.2009); 1078, 120 S.Ct. L.Ed.2d 254 People 146 v. 38 Cal.4th J., 1080-81, 8, (faulting nedy, concurring) police Cal.Rptr.3d offi- 45 136 P.3d anonymous (2006) (“We acting tip point- cer for granted on an and this case to consider circumstances, ing out record does not show any, police "[t]he under if what offi- or may whether some notation other documenta- stop cers a vehicle and detain its driver by tion either of the call was made voice solely phoned-in based on an uncorroborated recording tracing telephone or the call to a tip accurately the vehicle describes and number,” expounding: "Instant caller possibly its location that a and relates intoxi- widely police, wheel, identification is available to ‘weaving cated is behind all and, anonymous proving tips if are unreliable roadway.' explain, although we over the As distracting squad police, unsettled, to cars can be appears the law somewhat the bet- rule, sent within seconds to the location of the firmly by many ter supported cases as telephone used the informant. Voice re- public safety well as considerations cording tips might, telephone appropri- sense, stop a limited traffic common is that cases, by police ate to locate the be used permitted under circumstances to con- such reports to make caller. It is unlawful false to firm the officer’s reasonable of in- ability police ... and driving toxicated traffic before serious acci- identity telephone trace the in- dent can occur.” Vehicle described as may which formants be a factor lends reliabil- traveling "a 1980’s van north- model blue earlier, what, ity might years have Drive.”); been Highway Airport bound on anonymous tips”). considered unreliable Bloomingdale A.2d (Del.2004) (referring “less invasive na- compared ture of a traffic as with a stopped, 2. After a vehicle the truck was would J.L.); public body occurred in by occasionally. drive A few of frisk” that State those vehicles *9 451, 458-61, pickup light Prendergast, v. 83 were trucks. Some were colored 103 Hawai'i 714, (2004); Crawford, perceived P.3d 721-24 State v. and as could not have been blue. 492, (2003) colored, (upholding Perhaps 275 Kan. 67 115 pickup were dark P.3d trucks anonymous stop upon tip "stating impossible tell based a but it is to from the video the color, make, model, trucks, style, vehicle’s the state make or of those whether the dark location, origin highway plate, per- of its license color of those trucks could have been blue, instead, all of which they ceived whether direction of travel was cor- as or could by officer be- easily have color not roborated the law enforcement been a different con- blue, stating stop conclusory the fused with brown or red. fore the and also such as 928 any hap- need to have been theft it public, the and the aware since
driving poses to only late at seven minutes immediately pened night than the driver rather stop how he elapsed. explained had The caller or im- the recklessness wait for driver’s in bicycles came to know that there were apparent, to a similar pairment become truck: a man the bed of the he saw in the case. present consideration exists them This con- put explanation there. to to Hurley quickly needed act Officer the favorably trasts with situation encoun- away possible getting thief from prevent a by tered the States Supreme United hindsight know goods. with the We in Florida v. where an the appellant person who took was male police informant told the that a black Hurley not know bicycles, but Officer did gun, gun a a no possessed at bus but bicy- If had not appellant that. taken was visible and the informant had not ex- cles, Hurley then would need how a plained he knew black male had the sus- quickly continue the search for gun.5 And he while Officer said stopA sole of deter- pect. purpose for the any would have dark-colored Ford stopped bicycles in mining whether had it stopped truck and would have bed of truck would be even less his woman, if it being even were driven DWI-investigation stop intrusive than a subjective his intentions are not relevant a reckless driver.4 If there had been no reasonable-suspicion to the which inquiry, bicycles, have and could solely objective is determination.6 immediately have should terminated stop, bicycles, but were Offi- judgments there and so I would affirm the authority to approach respectfully cer courts below. I dissent. investigate side of the vehicle and driver’s
further. true no
It
had been
stolen,
it is
reported
but
owners,
if
not
any,
assume
would
Commonwealth,
517,
allegation
being
Sidney
vehicle
that the
was
driven
4. See
v.
280 Va.
524-25,
recklessly,
attempt
124,
(2010) (where
which the officer did not
702 S.E.2d
129
stop”);
to corroborate before
United
anonymous informant claimed that vehicle
Cir.2001);
Wheat,
(8th
722
States v.
278 F.3d
being
outstanding
was
driven
with
Walshire,
(Iowa
State v.
634
625
N.W.2d
warrants,
stop to
driver's
traffic
ascertain
2001) ("Unlike
tip alleged
in White—that
identity
permissible).
was
carrying
was
White
narcotics —or in [Adams
Williams,
143,
1921,
v.
407 U.S.
92
32
S.Ct.
271,
(Court’s
5. 529 U.S.
S.Ct. 1375
(1972)]
L.Ed.2d 612
the defendant
—that
("All
go
op.)
had to
on in this case
gun
carrying
and a
narcotics
a total
—here
unknown,
report
was the bare
of an
unac-
stranger could have observed defendant’s
explained
countable
who neither
informant
driving
intimate
abilities. No
or confidential
gun
any
he
supplied
how knew about the
nor
relationship
required
support
the accu-
believing
for
he had
basis
inside information
racy
simply
of the observation. The caller
L.”).
J.
about
reported
contemporaneous
observation of
activity taking place
criminal
in his line of
527,
6. See
Garcia v.
S.W.3d
sight.”) (quoting concurring
Boyea
opinion in
below),
(see
Walshire);
(Tex.Crim.App.2001).
brackets
State
Rutzinsld,
241 Wis.2d