Stewart v. State, 22 S.W.3d 646

Stewart v. State

22 S.W.3d 646

Tex. App.

2000

Check Treatment

J. WOODFIN JONES, Justice.

After his motion to suppress evidence was overruled, appellant Elvis Edward Stewart, Jr., pleaded guilty to driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West Supp.2000). The court adjudged him guilty and, pursuant to a plea bargain, assessed punishment at incarceration for three days and a $500 fine. The only issue on appeal is whether the stop that resulted in appellant’s arrest was lawful. We conclude that it was not and will reverse the judgment of conviction.

*648 Harker Heights police officer David Haley testified that he was dispatched to a convenience store on the Central Texas Expressway at about 2:00 a.m. on August 4, 1998. “The dispatch stated that there was a vehicle. It was described as a green [Cjamaro ... parked by the gas pumps, occupied by a white male passenger and a white driver. The driver apparently fell down a couple of times trying to get into the vehicle and appeared to be highly intoxicated.” The dispatch was based on an anonymous telephone call, and the caller’s identity remained unknown at the time of trial.

Officer Haley arrived at the convenience store two minutes after receiving the dispatch. He saw a green Camaro with two occupants of undeterminable race leaving the gasoline pumps. The car turned onto the access road and stopped аt an intersection for a red light. When the light turned green, the Camaro made a lawful left turn, drove under the expressway, and made another lawful left turn. Haley, who was directly behind the Camaro, turned on his emergency lights at this point. The Ca-maro, which was driven by appellant, immediately stopped. The officer arrested appellant for driving while intoxicated on the basis of his subsequent observations. It is undisputed that Haley did not see appellant drive еrratically or commit any traffic offense, and that the sole basis for the stop was the anonymous tip.

Appellant moved to suppress all evidence obtained as a result of the stop. Appellant does not advance a separate state constitutional claim. Because the facts are undisputed and the district court’s ruling does not turn on the credibility of a witness, we will review the order overruling the motion to suppress оn a de novo basis. See Guzman v. State, 955 5.W.2d 85, 89 (Tex.Crim.App.1997).

A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). A temporary detention is justified when the detaining officer has sрecific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. See id. A reasonable suspicion means more ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍than a mere hunch or suspicion. See Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. See id.

While an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. See Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex.App. — Austin 1999, pet. refd). Normally, a police officer must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified. See Davis, 989 S.W.2d at 863. An officer’s prior knowledge and experience, and his corroboration of the details of the tip, may be considered in giving the anonymous tip the weight it deserves. See id. at 864. But the corroboration of details that are easily obtainable at the time the information is provided, and which do not indicate criminal activity, will not lend support to the tip. See id. As the United States Supreme Court has recently written:

An accurate description of a subject’s readily observable location and appearance is of course rehable in this limited sense: It will help the police correсtly identify the person whom the tipster means to accuse. Such a tip, however, *649 does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be rehable in its assertion of illegality, not just in its tendency to identify a determinate person.

Florida v. J. L., 529 U.S. —, —, 120 S.Ct. 1375, 146 L.Ed.2d 254, 261 (2000).

In Davis, a police officer was informed that a caller had reported that a particularly described vehicle was being driven northbound on Interstate 35 at a specified location; that it was occupied by three males; that the vehicle was being driven recklessly; and that the occupants were possibly smoking marihuana. See 989 S.W.2d at 861. The officer positioned himself to intercept ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the suspect vehicle and stopped it. See id. The officer witnessed no offense and acknowledged that he acted solely on the basis of the tip. See id. The caller did not identify himself, stоp at the scene, or otherwise come forward. See id. This Court held that “the anonymous tip, uncorroborated as to its significant aspects by independent police work, did not exhibit sufficient indicia of reliability to justify the investigativе stop.” Id. at 865.

In this cause, Haley confirmed the anonymous caller’s information that a green Camaro occupied by two individuals was at the convenience store. But corroboration of these facts alone did nоt give the officer any basis for crediting the informer’s accusation that the driver of the Camaro was intoxicated. Indeed, given the generality of the radioed description, it is not clear that the officer could even be sure that the automobile was being driven by the man seen to fall by the informer.

The State urges this Court to hold that “where an officer receives anonymous information regarding an immediate and serious threat to public safеty, and that information is even minimally corroborated, given the officer’s experience, knowledge, and the totality of the circumstances, a temporary detention is justified.” In such cases, the State would deem the сorroboration to be sufficient even if it was “restricted to identification of persons or vehicle at a specific location.” The State notes that in J.L., the Supreme Court acknowledged the possibility that in certain limited situations — the court used the example of a report of a man carrying a bomb — the danger alleged in an anonymous tip might be so great as to justify a seizure even without a showing of reliability. See J.L., 529 U.S. at —, 120 S.Ct. at 1380, 146 L.Ed.2d at 262. The Court did not announcе such a rule, however, and held in J.L. that an anonymous report that the defendant was carrying a firearm did not justify his detention and frisk. See id.

The State cites one opinion that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it says supports its argument. See State v. Stolte, 991 S.W.2d 336 (Tex.App. — Fort Worth 1999, no pet.). In that case, a person using a cell phone called the police to report that he was following a pickup truck that was being driven in a manner suggesting that the driver was intoxicated. See id. at 339. An officer was dispatched and stopped the pickup, which the caller had described by color and license plate number and had continued to follow. See id. The caller stopped behind the officer’s police vehicle as instructed by the рolice dispatcher, was later identified, and testified at the suppression hearing. See id. at 340. The court of appeals held that “in light of the totality of the circumstances, including both the important public and private interеsts involved,” the officer was justified in stopping the pickup. See id. at 343.

Stolte is distinguishable from the cause before us. As the court of appeals noted, the officer there knew (1) that the informer had remained on his cell phone to track and report the suspect’s location; (2) that he could learn the identity of the informer because it was standard operating procedure for the dispatcher to instruct callers to stop behind the patrol сar and wait to be contacted by an officer; and (3) that by stopping at the scene, the informer was making himself accountable for his inter *650 vention. See id. at 342. Stolte did not involve a tip from a truly anonymous informer who could not be held responsible if the information he provided proved to be fabricated.

The other opinions cited by the State are also distinguishable. In Hulit v. State, 982 S.W.2d 481 (Tex.Crim.App.1998), police were dispatched to a highway intersection in response to а call reporting that a person in a vehicle was possibly having a heart attack. See id. at 432. The officers found a pickup truck stopped in the left-turn lane with its ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍engine running and the defendant slumped unconscious at the steering wheel. See id. The court held that the officers were authorized under the Texas Constitution to awaken the driver and ask him to step out of the vehicle so they could see if he was in need of assistance. See id. at 438. The officers in Hulit were not acting sоlely on the basis of anonymous information, but had personally observed a set of circumstances that warranted the actions they took. 1

In Sweeney v. State, 6 S.W.3d 670 (Tex.App. — Houston [1st Dist.] 1999, pet. ref d), a police officer stopped an аutomobile being driven by the defendant at over forty miles-per-hour, in the rain, at night, with a flat tire. The court concluded that the officer had reasonable grounds to stop the defendant for his own safety and that of others on thе road. See id. at 671. No reliance on anonymous information was involved in Sweeney.

Finally, the State cites Wright v. State, 7 S.W.3d 148, 151-52 (Tex.Crim.App.1999), in which the court held that the Fourth Amendment permits a police officer to stop and detain a person for further investigation if the officer reasonably suspects that the person may be ill and in need of assistance. The closest Officer Haley came to invoking the community caretaker exception was when he testified, “When I get a call for an intoxicated driver or a possible intoxicated driver, my main concern is to make sure that we get the driver stopped and see that the driver is or is not intoxicated or if there’s something wrong with the vehicle, or the driver [him]self has a medical problem.” Haley did not state, however, that he suspected appellant was having car trouble or was experiencing medical distress. It is clear that the officer stopped appellаnt solely for the purpose of investigating the suspected criminal violation.

We are mindful of the public danger posed by intoxicated drivers. But we are also mindful of our obligation to follow established Fourth Amendment preсedent. See U.S. Const, amend. IV. Under that precedent, the anonymous caller’s tip, which was uncorroborated in its assertion of possible illegality, did not objectively support a reasonable suspicion that appellаnt was driving while intoxicated. The county court at law erred by overruling the motion to suppress.

The judgment of conviction is reversed and the cause is remanded for further proceedings.

Notes

. Hulit also was decided solely on the basis of article ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍I, section 9 of the Texas Constitution. See 982 S.W.2d at 433. It is not precedent for determining whether a warrantless seizure was lawful under the United States Constitution.