State v. James Dean Fudge

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00793-CR

The State of Texas, Appellant

v.

James Dean Fudge, Appellee

FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 517,426, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING

DISSENTING OPINION

Because I do not believe the law provides, as the majority holds, that a person

unknown to a police officer, who offers an unsolicited, uncorroborated "tip" in a face-to-face

encounter is, without more, inherently reliable, thus providing a sufficient basis for a valid traffic

stop, I respectfully dissent.

On a sparse record, the experienced trial judge evaluated the meager facts before

him and concluded that the officer had neither reasonable suspicion nor probable cause to stop

appellee in his automobile. This case turns on what is not in the record along with the weight to

be given the scant testimony in the record--an assessment the trial court was in the best position

to evaluate. The majority's holding, that a police officer may act to make a traffic stop based on

a conclusory tip passed along to him from an unknown individual, is precisely the view rejected

in Supreme Court decisions establishing the federal constitutional parameters in this area.

It is undisputed that the sole basis for the stop was the tip given to the officer by

the unknown cab driver. Officer Pruett, the only witness at the hearing, testified as follows:

[Defense Attorney]: When you pulled over [appellee] or when you stopped or

detained him, the only reason you were detaining him is because of what the cabby

had told you; isn't that correct?

[Officer Pruett]: Correct.

[Defense Attorney]: You hadn't seen any kind of road violations or violations of

the driving laws; isn't that correct?

[Officer Pruett]: That's correct.

[Defense Attorney]: And you hadn't seen any equipment violations or anything

like that?

[Officer Pruett]: No.

[Defense Attorney]: Okay. And did you know this cab driver?

[Officer Pruett]: No.

[Defense Attorney]: Okay. So you had no reason or no indicate [sic] to believe

what he was telling you at that time was reliable; isn't that correct?

[Officer Pruett]: I was just going on what he told me.

Because the State failed to carry its burden that the officer had either the "quantity" or "quality"

of information required for a vehicle stop, I would affirm the trial court's suppression of the

evidence obtained in violation of the Fourth Amendment to the United States Constitution and

Article I, section 9 of the Texas Constitution. U.S. Const. amend. IV; Tex. Const. art. I, § 9;

Alabama v. White , 496 U.S. 325, 330 (1990); Hulit v. State , 982 S.W.2d 431 (Tex. Crim. App.

1998).

Standard of Review

In according the trial court its proper and necessary role, we give almost total

deference to the trial court's findings of fact and conduct a de novo review of the court's

application of law to those facts. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App.

2000) (citing Guzman v. State , 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1999)). In this case, the

trial court was not asked to make explicit findings of historical facts. We, therefore, review the

factual basis for the trial court's ruling in a light most favorable to the ruling. Carmouche , 10

S.W.3d at 327 ; State v. Ballard , 987 S.W.2d 889 (Tex. Crim. App. 1999). We further assume

the trial court made "implicit findings of fact supported in the record that buttress its conclusion."

Carmouche , 10 S.W.3d at 328 .

In a suppression hearing, the trial court is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. Ballard , 987 S.W.2d at

891 . In parsing the degree of deference to be given the trial court's determinations, the court of

criminal appeals observed in Guzman , "The amount of deference a reviewing court affords a trial

court's ruling on a 'mixed question of law and fact' (such as the issue of probable cause) is often

determined by which judicial actor is in a better position to decide the issue." 955 S.W.2d at 87 .

That the trial judge determined the officer was "credible" was not the only factual

determination to be made by the trial judge in this case. Although the facts here are largely

undisputed, it would appear from the majority opinion that the inferences to be drawn from those

facts are anything but clear. Certainly, the trial judge was entitled to evaluate the officer's

testimony that the tipster said he "believed" the driver was drunk when determining the weight he

would attribute to the testimony, and concluding that the facts established by the officer's

testimony did not constitute reasonable suspicion or probable cause for the detention. See Ornelas

v. United States , 517 U.S. 690, 699 (1996); see also State v. Ross , 32 S.W.3d 853 (Tex. Crim.

App. 2000).

When properly applying these standards to a review of the record, I conclude that

the trial court did not abuse its discretion in deciding to suppress the evidence.

Automobile Stop

Stopping an automobile and detaining its occupants constitutes a "seizure" within

the meaning of the Fourth Amendment. Whren v. United States , 517 U.S. 806, 809-10 (1996);

see also Delaware v. Prouse , 440 U.S. 648, 653-54 (1979); United States v. Martinez-Fuerte , 428

U.S. 543, 556-58 (1976); United States v. Brignoni-Ponce , 422 U.S. 873, 878 (1975); cf. Terry

v. Ohio , 392 U.S. 1, 16 (1968). We impose a standard of "reasonableness" upon the exercise of

discretion by government officials, including law enforcement officers, in order to "'safeguard the

privacy and security of individuals against arbitrary invasions . . . .'" Marshall v. Barlow's, Inc. ,

436 U.S. 307, 312 (1978) (quoting Camara v. Municipal Court , 387 U.S. 523, 528 (1967)).

The decision to stop an automobile is generally deemed to be reasonable where the

police have probable cause to believe that a traffic violation has occurred. Whren, 517 U.S. at

813 ; Prouse , 440 U.S. at 659 . With the presence of an objectively valid reason for stopping a car

such as a traffic violation, the constitutional reasonableness of traffic stops does not depend on the

actual motivations of the individual officer involved. Whren , 517 U.S. at 813 . A mere hunch that

a particular car might contain drugs--though far short of the reasonable suspicion required to stop

a car temporarily to investigate--can nevertheless be the motivation for a traffic stop so long as

the officer has observed a traffic violation. Id . at 810-13. While much criticized because of the

limitless possibilities of traffic infractions that give police expansive discretion to stop motorists,

this so-called "pretext" stop--when based on probable cause--is now well established in the law.

See, e.g., id. at 818-19; Garcia v. State , 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); United

States v. Castro , 166 F.3d 728, 732 (5th Cir. 1999) (lacking reasonable suspicion, but with

information defendant was engaging in drug trafficking, law enforcement agents followed vehicle

driven by defendant 115 miles until officers observed traffic violation--driver not wearing seat

belt). While giving significant latitude to law enforcement, even the Whren court recognized the

importance, at the very least, of firsthand observation or surveillance by law enforcement officers.

In Whren , presented with the fact that the officer had observed a traffic violation, the Supreme

Court concluded that objective circumstances justified stopping the car. 517 U.S. at 817.

In rejecting the pretext claim raised in Whren , the Supreme Court expressed a

strong preference for tying the legality of law enforcement measures to objective circumstances,

rather than to officers' intentions. Thus, the Court reasoned that a traffic stop based on an

observation of a traffic offense "foreclose[d] any argument that the constitutional reasonableness

of traffic stops depends on the actual motivations of the individual officers involved" or whether

"the officer's conduct deviated materially from usual police practices, so that a reasonable officer

in the same circumstances would not have made the stop for the reasons given." Id. at 813 . The

objective test thus allows the protections of the Fourth Amendment to not turn on police practices

that "vary from place to place and from time to time," a prospect the court found unacceptable.

Id. at 815 . The "reasonable officer" test gives rise to the difficult problems of application we have

here. Because of the lack of maturation of reasonable suspicion in the instant cause, the majority

forces us into an inquiry largely rejected by the Supreme Court in these circumstances.

The legality of investigative stops of automobiles without probable cause was first

considered by the Supreme Court in United States v. Brignoni-Ponce. 422 U.S. at 873 . In that

case, Border Patrol agents conducting roving patrols in areas near the international border asserted

statutory authority to stop at random any vehicle in order to determine whether it contained illegal

aliens or was involved in smuggling operations. The practice was held to violate the Fourth

Amendment, but the Court did not invalidate all warrantless automobile stops upon less than

probable cause. Given "the importance of the governmental interest at stake, the minimal intrusion

of a brief stop, and the absence of practical alternatives for policing the border," the Court

analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio , and

held:

Except at the border and its functional equivalents, officers on roving patrol may

stop vehicles only if they are aware of specific articulable facts, together with

rational inferences from those facts, that reasonably warrant suspicion that the

vehicles contain aliens who may be illegally in the country.

Id . at 884 (footnote omitted).

In United States v. Martinez-Fuerte , the Supreme Court considered the

constitutionality of checkpoint operations at border stations. 428 U.S. at 556-58 . The court

sustained the checkpoint stops because of the "lesser intrusion upon the motorist's Fourth

Amendment interests: [w]e view checkpoint stops in a different light because the subjective

intrusion--the generating of concern or even fright on the part of lawful travelers--is appreciably

less in the case of a checkpoint stop." Id . at 558; but see City of Indianapolis v. Edmond , 121 S.

Ct. 447, 457 (2000). Balancing the public interest against the individual's Fourth Amendment

interests, the Supreme Court in Delaware v. Prouse held that

except in those situations in which there is at least articulable and reasonable

suspicion that a motorist is unlicensed or that an automobile is not registered, or

that either the vehicle or an occupant is otherwise subject to seizure for violation

of law, stopping an automobile and detaining the driver in order to check his

driver's license and the registration of the automobile are unreasonable under the

Fourth Amendment.

440 U.S. at 662 .

In the absence of probable cause, then, an automobile stop is subject to the

constitutional imperative that it not be "unreasonable" under the circumstances. Whren , 517 U.S.

at 810 . "Thus, the permissibility of a particular law enforcement practice is judged by balancing

its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate

governmental interests." Prouse , 440 U.S. at 654 . The facts on which this intrusion is based must

be measured against "an objective standard," whether the test is one of probable cause or

reasonable suspicion. Id .

Short of probable cause that a violation has occurred, then, traffic stops are

analogous to Terry stops in that an officer's investigatory stop of a vehicle must be based on

specific (1) and articulable facts sufficient to support the officer's reasonable suspicion that the person

detained is involved in criminal activity . See Terry , 392 U.S. at 21-22 ; Harris v. State , 913

S.W.2d 706, 708 (Tex. App.--Texarkana 1995, no pet.). These facts must amount to something

more than an inchoate and unparticularized suspicion or hunch. See United States v. Sokolow , 490

U.S. 1, 7 (1989) (citing Terry , 392 U.S. at 27 ); Dickey v. State, 716 S.W.2d 499 (Tex. Crim.

App. 1986) (detention based "on a mere hunch" is illegal); Williams v. State , 621 S.W.2d 609, 612

(Tex. Crim. App. 1981). Because the facts must be specific and articulable it is insufficient for

an officer to provide conclusory explanations. Illinois v. Gates , 462 U.S. 213, 239 (1983); Garcia

v. State , 3 S.W.3d 227, 237 (Tex. Crim. App. 1999).

The reasonableness of an investigative detention turns on the "totality of the

circumstances" in each case. Gates , 462 U.S. at 230-31 ; Shaffer v. State , 562 S.W.2d 853, 855

(Tex. Crim. App. 1978); State v. Sailo , 910 S.W.2d 184, 188 (Tex. App.--Fort Worth 1995, pet.

ref'd); Davis v. State , 794 S.W.2d 123, 125 (Tex. App.--Austin 1990, pet. ref'd). The Supreme

Court has provided guidance to the meaning of this elusive concept "reasonable suspicion." In

United States v. Cortez , the Court recognized that, because of the myriad factual situations that

arise in a vehicle-stop context, any definition is difficult. 449 U.S. 411, 417-18 (1981). The

essence of any analysis requires taking into account the "totality of circumstances," or "the whole

picture":

Based upon the whole picture the detaining officers must have a particularized and

objective basis for suspecting the particular person stopped of criminal activity.

The idea that an assessment of the whole picture must yield a particularized

suspicion contains two elements, each of which must be present before a stop is

permissible. First, the assessment must be based upon all of the circumstances.

The analysis proceeds with various objective observations, information from police

reports, if such are available, and consideration of the modes or patterns of

operation of certain kinds of lawbreakers. From these data, a trained officer draws

inferences and makes deductions--inferences and deductions that might well elude

an untrained person.

* * *

The second element contained in the idea that an assessment of the whole picture

must yield a particularized suspicion is the concept that the process just described

must raise a suspicion that the particular individual being stopped is engaged in

wrongdoing.

Id. (citations omitted). Based upon numerous objective facts obtained from the agents' previous

experiences and knowledge, surveillances, and other investigatory techniques, the Cortez court

concluded that the agents lawfully stopped the subject vehicle for questioning of its occupant. In

reviewing a decision, we do not consider the various factors in isolation, but rather in their

interrelated context, where each may reinforce the other, so that the "laminated total" may be

greater than the sum of its parts. United States v. Fooladi , 703 F.2d 180, 184 (5th Cir. 1983).

Reasonable suspicion then, like probable cause, is dependent upon both the content

of the information possessed by the police and its degree of reliability. See Alabama v. White , 496

U.S. 325, 330 (1990). "Both factors--quantity and quality--are considered in the totality of the

circumstances--the whole picture . . . must be taken into account when evaluating whether there

is reasonable suspicion." Id. (citing Cortez , 449 U.S. at 417 ); see also Carmouche , 10 S.W.3d

at 328-29 ; Reynolds v. State , 962 S.W.2d 307, 311 (Tex. App.--Houston [14th Dist.] 1998, pet.

ref'd).

Likewise, the Texas Court of Criminal Appeals has recognized that people are not

shorn of their Fourth Amendment protection when they step from their homes into their

automobiles. Carmouche , 10 S.W.3d at 328 . Most recently, in Schenekl v. State , the court

addressed the constitutionality of a state law permitting a law enforcement officer to stop and

board a boat without probable cause or reasonable suspicion. 30 S.W.3d 412, 413 (Tex. Crim.

App. 2000). Citing Prouse , the court observed that automobile travel is a "'basic, pervasive, often

necessary means of transportation in our society.'" Id. at 416 (quoting Prouse , 440 U.S. at 662 ).

"As such, there is a heightened expectation of privacy while in a car as compared to a boat." Id .

We note that this case differs from the Terry line of cases in important respects.

Officer Pruett himself observed no "unusual conduct" leading him "reasonably to conclude . . . that

criminal activity may be afoot." The officer's sole basis for believing that the appellee may have

been committing a crime was the alleged tip from the not-proved-to-be-reliable, unnamed tipster. (2)

Moreover, in Terry , what the officer saw was "unusual conduct" giving the officer a reason to

believe that an armed robbery was about to be committed; swift intervention on his part was

required to prevent a violent crime. Here, there is no suggestion in the record that the appellee

was departing the parking lot or otherwise engaging in any behavior involving imminent danger

that required Officer Pruett to forego any type of surveillance and instead act immediately to

prevent a crime. Surely, if there had been such behavior, the prosecutor would have elicited the

testimony. Instead, the record is silent regarding any need for Officer Pruett to act immediately.

From this record, the absence of any type of imminent danger is just the sort of implied finding

that we accord to the sound discretion of the trial court. Reliance upon the conclusory tip of the

informant here is inherently inconsistent with the Supreme Court's totality-of-the-circumstances

analysis. Based on the record, I believe Officer Pruett acted on the tip with nothing more than "an

inchoate and unparticularized suspicion or hunch" that called for some type of corroboration.

Because we require an officer's observations to be specific and articulable and not

conclusory, it would be an anomalous result if we allowed a stop based on a conclusory hunch or

inchoate suspicion or a conclusory statement from an unknown tipster. If the majority is correct

about the state of the law--a tipster's conclusory statement is sufficient for a traffic stop--we are

presented with the anomaly that a law enforcement officer would be able to act on a tip from

another that, if he himself had observed the conduct firsthand and testified in such a conclusory

manner, the stop would not be upheld. See, e.g., State v. Arriaga , 5 S.W.3d 804, 807 (Tex.

App.--San Antonio 1999, pet. ref'd).

Texas courts have never allowed a vehicle stop based on an uncorroborated tip and

we should not do so now. See, e.g., State v. Garcia , 25 S.W.3d 908 (Tex. App.--Houston [14th

Dist.] 2000, no pet.) (criminal activity detailed with some particularity was corroborated); Glenn

v. State , 967 S.W.2d 467 (Tex. App.--Amarillo 1998), pet. dism'd , 988 S.W.2d 769 (Tex. Crim.

App. 1999) (anonymous tip corroborated by police officer's prior knowledge of suspect's criminal

activities and surveillance of predictive behavior); State v. Adkins , 829 S.W.2d 900, 902 (Tex.

App.--Fort Worth 1992, pet. ref'd) (police officer observed traffic offense after receiving

anonymous tip defendant driving while intoxicated).

Because here the arresting officer was the only witness at the hearing and he

testified that the basis of the stop rested entirely on the information provided by the cab driver,

we turn to the weight an officer may place on a tip given to him in person by an unidentified, and

previously unknown, informant.

Informants and Tipsters

A police officer "may rely upon information received through an informant, rather

than on his direct observations, so long as the informant's statement is reasonably corroborated

by other matters within the officer's knowledge ." Gates , 462 U.S. at 242 (quoting Jones v. United

States , 362 U.S. 257, 269 (1960)) (emphasis added). Corroboration by the officer means, in light

of the totality of the circumstances, the officer confirms enough facts so that he may reasonably

conclude that the information provided is reliable and a temporary detention is justified. See

White , 496 U.S. at 330-31 . Corroboration by the police officer necessarily goes to the quality and

reliability of the information. Where the information has a fairly low degree of reliability, more

information is required to establish the requisite level of suspicion necessary to justify an

investigative detention. Id. at 330 . Where the reliability of the information is increased, less

corroboration is necessary. Id.

In cases where the Supreme Court has reviewed investigatory stops, part of its

analysis in evaluating the totality of the circumstances has included reviewing the reliability of the

informant or tipster. See Florida v. J.L. , 529 U.S. 266, 271 (2000); White , 496 U.S. at 331-32 ;

Gates , 462 U.S. at 225 ; Adams v. Williams , 407 U.S. 143, 144-47 (1972). In determining the

reliability of people providing information to police officers, the Supreme Court has considered

(1) known informants, individuals with whom the police have previously worked and whose

reliability has been established and (2) unknown informants or tipsters who call into the police and

leave tips anonymously.

In Williams , the Supreme Court determined that an unverified tip from a known

informant was not reliable enough to establish probable cause to arrest, but upheld an investigative

stop based on an informant's tip bearing sufficient "indicia of reliability." Id. at 146-47; see also

Carmouche , 10 S.W.3d at 328 . In Williams , such "indicia" was shown by evidence that (1) the

informant was personally known to the officer; (2) the informant had provided the officer with

information in the past; and (3) the informant was subject to arrest for making a false complaint

had the officer's investigation proved the tip false. 407 U.S. at 147 .

In Gates , the Supreme Court suggested that, standing alone, an anonymous tip

would not be sufficient for probable cause. Adopting the totality-of-the-circumstances test, the

Court took into account the facts known to the officers from personal observation, and gave an

anonymous tip weight in light of its indicia of reliability as established through independent police

work. Gates , 462 U.S. at 242-46 . Recognizing that informant's tips, like all evidence coming

to a police officer on the scene, may vary greatly in their value and reliability, the Gates court

determined that in light of the anonymous informant's tip as corroborated by independent police

work, the arrest was justified. Id. These same factors are also relevant in the reasonable

suspicion context except that a lesser showing of suspicion is required. White , 496 U.S. at 328-29 . (3)

In White , an anonymous caller left a telephone tip with the police that a particularly

described woman was carrying cocaine and predicted she would leave an apartment building at a

specified time, get into a car matching a particular description, and drive to a named hotel. The

tip was corroborated by independent police work that included surveillances. The White court held

that, while the police did not verify every aspect of the anonymous tip, they did verify facts that

involved future actions or predictive information that was the type not ordinarily or easily

predicted. Id. at 332 . Recognizing that the case was a close one, the Court concluded that "under

the totality of the circumstances, the anonymous tip as corroborated , exhibited sufficient indicia

of reliability to justify the investigatory stop." Id. (emphasis added).

Most recently in Florida v. J.L. , the police dispatcher received an anonymous

telephone tip that a particularly described youth at a particular location was carrying a concealed

gun. 529 U.S. at 268 . Like the instant case, the officers' suspicions that J.L. was carrying a

weapon arose not from any observations of their own but instead solely from information provided

by an unknown caller. The Supreme Court thus addressed the issue whether an anonymous tip

that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and

frisk of that person. The Court held that the tip was not properly corroborated and the

investigative stop was not justified. Id. at 272 . In J.L. , the officer corroborated only identifying

information relating to the youth's location and appearance. The tipster did not provide any

predictive information and the police officer stopped J.L. based only on the anonymous tip. While

the information given by the tipster helped the police officer correctly identify the person the

tipster meant to accuse, the tip did not show that the tipster had knowledge of the concealed

activity. Additionally, the police officer did not corroborate any criminal activity. The officer

did not testify that he observed actions indicating illegality or testify about matters within his

knowledge that would reasonably corroborate criminal activity. Id. The Supreme Court stated:

That the allegation about the gun turned out to be correct does not suggest that the

officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging

in unlawful conduct: The reasonableness of official suspicion must be measured

by what the officers knew before they conducted their search. All the police had

to go on in this case was the bare report of an unknown, unaccountable informant

who neither explained how he knew about the gun nor supplied any basis for

believing he had inside information about J.L. If White was a close case on the

reliability of anonymous tips, this one surely falls on the other side of the line.

Id. At 271. In rejecting the government's argument that a stop should be permitted when a

description by an anonymous tip is verified and "there are no factors that cast doubt on the

reliability of the tip," the Court concluded that these contentions "misapprehend the reliability

needed for a tip to justify a Terry stop." Id. "The mere fact that a tip, if true, would describe

illegal activity does not mean that the police may make a Terry stop without meeting the reliability

requirement." Id . at 273 n.1. The Court further declined to recognize an exigency exception for

firearms that would have relieved the State from having to meet the Gates reliability requirement.

Id. at 273 . If bare-boned tips about guns could provide the basis for Terry stops, the Court

reasoned that it would be reasonable then to extend the exceptions to narcotics cases. This the

Court refused to do: "As we clarified when we made indicia of reliability critical in [ Williams ]

and White , the Fourth Amendment is not so easily satisfied." Id. at 1379. (4) In Stewart v. State ,

this Court rejected a "DWI exception" to the corroboration requirement. 22 S.W.3d 646 (Tex.

App.--Austin 2000, pet. ref'd).

In analyzing the use of informants in connection with vehicle stops, the Texas Court

of Criminal Appeals has tracked the analysis of the Supreme Court. In Carmouche , the court

examined a vehicle stop based on information from a reliable informant who had provided accurate

information on prior occasions. 10 S.W.3d at 323 . The Carmouche court concluded that the

informant's history of providing reliable information established a sufficient "indicia of reliability"

to credit her information. Id. at 328 (citing Williams, 407 U.S. at 146-47 ). Even so, the court

did not uphold the stop based on the informant's tip alone. The court upheld the stop based upon

three factors: (1) the informant's tip; (2) the informant's previous history of providing reliable

information to authorities; and (3) surveillances by the officers that served to corroborate her

information. Id. While the informant's information alone was insufficient, "all of the surrounding

circumstances, taken together, justified the stop." Id . at 329. Additionally, the court noted that

the stop was justified because one of the officers observed a traffic violation. Id . at 329 n.6 (citing

Whren , 517 U.S. at 806 ).

Is a Face-to-Face Encounter with an Unknown Person an Encounter With a Known Informant

or an Anonymous Tipster?

The issue before us then is whether, based on the fact that the face-to-face tip in this

case came from a cab driver unknown to the police officer, the cab driver should be treated as (1)

a known, reliable informant such that corroboration is unnecessary; (2) an anonymous tipster and,

as in J.L. , some corroborating evidence or predictive information is required; or (3) an informant

somewhere along the spectrum of known-unknown informants and suitable corroboration is

required. See J.L. , 529 U.S. at 270 . Here, as in J.L. , the record establishes that nothing was

known about the informant. In J.L. , the Supreme Court squarely addressed facts like those before

us:

An accurate description of a subject's readily observable location and appearance

is of course reliable in this limited sense: It will help the police correctly identify

the person whom the tipster means to accuse. Such a tip, however, does not show

that the tipster has knowledge of concealed criminal activity. The reasonable

suspicion here at issue requires that a tip be reliable in its assertion of illegality, not

just in its tendency to identify a determinate person.

Id . at 272. The Supreme Court in J.L. also stressed the importance of predictive information of

criminality that could be corroborated by observation. Id . at 271-72.

Courts have uniformly held that an anonymous tip may justify the initiation of an

investigation, but it alone will rarely establish the level of suspicion sufficient to justify a

detention. E.g., White , 496 U.S. at 329 ; Davis v. State , 989 S.W.2d 859, 863 (Tex. App.--Austin

1999, pet. ref'd); Adkins , 829 S.W.2d at 900 . A police officer must have additional facts before

the officer may reasonably conclude that the anonymous tip is considered reliable and an

investigatory detention is justified. 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 attention or weight it deserves. 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. Stewart , 22 S.W.3d at 649 .

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. 989 S.W.2d at 861 . The officer positioned himself to intercept the

suspect vehicle and stopped it. Id . The officer witnessed no offense and acknowledged that he

acted solely on the basis of the tip. Id . The caller did not identify himself, stop at the scene, or

otherwise come forward. 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 investigative stop." Id . at 865.

In Adkins , the court of appeals upheld a vehicle stop based on a tip from an

unidentified citizen. In that case, the officer initiated the stop because the citizen had informed

the officer that the driver of the car appeared to be "extremely intoxicated" and the car was

approaching an intersection controlled by a traffic light. Consistent with the tip, the officer

observed that the vehicle had a flat tire on the right rear wheel that was badly damaged. The issue

on appeal was whether information from a concerned citizen is legally sufficient to establish

reasonable suspicion. The Adkins court recognized that unless an informant's tip carries sufficient

"indicia of reliability," it requires further investigation before a forcible stop of a vehicle would

be authorized. 829 S.W.2d at 901-02 . Recognizing that an informant's veracity, reliability, and

basis of knowledge "are highly relevant," the court agreed with the Supreme Court in Gates that

an "explicit and detailed description of alleged wrongdoing, along with a statement that the event

was observed firsthand, entitles an informant's tip to greater weight than might otherwise be the

case." Id. at 901 (citing Gates , 462 U.S. at 234 ). On critical facts, Adkins may be distinguished

from the case at hand. In Adkins , the record makes clear that the basis for the informant's

information was his firsthand observation that Adkins was driving dangerously. In addition, the

officer observed behavior --Adkins driving on the rim of his tire--that sufficiently corroborated the

tip. The majority opinion noted that Adkins's conduct of driving on his tire rim was a violation

of state law. The record also established the existence of exigent circumstances. The record

established that Adkins was driving on city streets and, further, the officer was "[c]oncerned that

the possible DWI suspect might get away." Id . at 901.

Indeed, the Supreme Court has never upheld an investigatory stop of an individual--

much less a vehicle stop--on the quantum of evidence relied on in the case before us. In Adams

v. Williams , a police officer acted upon an informant's tip. The fact that the informant personally

came forward to give information that was immediately verifiable at the scene led that Court to

conclude that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip."

407 U.S. at 146 . The informant's unverified tip alone, however, was insufficient to justify the

detention. The Williams court found the information carried enough "indicia of reliability" to

justify the stop because the informant was known to the officer personally and had provided him

with reliable information in the past. Id .

In this cause, Officer Pruett confirmed only one fact that the cab driver told him,

that appellee was nearby in a white pickup. The record is silent regarding any other facts that

could have possibly been corroborated by Officer Pruett. The fact that the white truck was

nearby, apparent to any observer, gave Officer Pruett little, if any, reason to credit the cab

driver's further "belief" that appellee was intoxicated. Based on the sparse record, I would hold

that Officer Pruett had only the quantum of information to initiate an investigation. The

information he had at the time he stopped appellee did not rise to the constitutionally necessary

level of reasonable suspicion.

Officer Pruett's options at the time he was approached by the cab driver were many:

he could have inquired further of the informant to establish his identity or the reliability of the

informant's observations, or he could have simply observed the appellee, looking for signs of

erratic driving or a traffic violation. Again, while the record is undeveloped as to what occurred,

it appears that Officer Pruett observed the appellee drive his truck in a normal manner around the

convenience store, then forced appellee to stop and get out of the truck. The trial court could have

found from this record that the defendant was about to park his truck and enter the convenience

store. Further, the implied findings which we accord to the sound discretion of the trial court

certainly do not indicate that the appellee was about to exit the parking lot and re-enter traffic.

Whether the informant is more akin to the anonymous tipster or a known informant,

however, the record is clear that no reliability has been established. We need not find that the cab

driver is akin to an anonymous caller to conclude that his information should be accorded different

treatment than that of a confidential informant who has provided accurate and reliable information

on prior occasions. So far as the record reveals, nothing is known about the informant except that

he was driving a cab. The record is silent as to whether the informant remained at the scene or

departed immediately. Here, there was no testimony about whether the cab driver was identified

or identifiable; there was no testimony about whether the officer asked the cab driver about the

details of what he had observed or acquired any information to establish the tipster's reliability.

In reviewing the totality of the circumstances, I would hold that, on the meager record in this case,

the cab driver is akin to an anonymous tipster as in J.L. , and the corroboration aspect of the Gates

reliability analysis must be met.

Suffice it to say that information this far short of the line must be corroborated in

some manner--either by additional questioning of the tipster or by firsthand observation of the

officer. Because the record is so sparse, and there is no evidence at all corroborating the tip, the

officer's stop was premature and, thus, not based on reasonable suspicion.

Sailo and Sierra-Hernandez

In reversing the trial court's suppression of the evidence, the majority abandons the

corroboration requirement set out in the Supreme Court opinions of J.L. , Gates , and White . I

believe the majority's reliance on Sailo and Sierra-Hernandez is simply misplaced. Despite face-to-face tips in both Sailo and Sierra-Hernandez , neither court abandoned the corroboration aspect

of the Gates reliability analysis. Sailo , 910 S.W.2d at 189 ; United States v. Sierra-Hernandez ,

581 F.2d 760, 762 (9th Cir. 1978). Moreover, to the extent that either case is read to allow a stop

on an uncorroborated tip, both cases precede the Supreme Court's decision in J.L.

In Sailo and Sierra-Hernandez , the courts determined that there were articulable

facts within the officers' personal knowledge independent of the information the officers received

face-to-face from the unidentified informants that corroborated the informants' information. 910

S.W.2d at 189 ; 581 F.2d at 763 . In Sailo , the court of appeals determined that the tip was

reasonably corroborated because, along with the fact that the suspect was described with

particularity, the officer knew that the area was one of frequent DWI encounters. 910 S.W.2d at

189 . Likewise in Sierra-Hernandez , the informant pointed to a black pickup truck and told the

border agent, "The black pickup truck just loaded with weed at the canebreak." 581 F.2d at 762 .

The nearby canebreak was known as a site of previous incidents of drug smuggling and illegal

entry of aliens. Id.

In Sierra-Hernandez , the court held that information from a citizen who confronts

a police officer in person to advise the officer that an individual present on the scene is committing

a specific crime should be given serious attention and great weight by the officer. 581 F.2d at

763 . The court noted that a person not connected with the police or who is not a paid informant

is inherently trustworthy when he advises the police a crime is being committed. Id.

"Nevertheless, whether the information is sufficient to justify a stop must be evaluated with

reference to the facts of each case, for there is no per se rule." Id. Each case is reviewed based

on the totality of the circumstances or the "whole picture" when evaluating the reasonableness of

the officer's conduct. The Sailo court, following the reasoning in Sierra-Hernandez , held that

there was nothing in the record that should have caused the officer to doubt the reliability or good

faith of the informant tendering the information. (5) Important to this case is that in Sierra-Hernandez and Sailo , the courts found the tips were corroborated.

In this case, the State did not elicit any testimony from Officer Pruett that (1) the

convenience store was a particularly frequent area for DWIs or the site of previous criminal

activity; (2) the store was closed and driving into the parking area and around the store was

suspicious activity; (3) it was late at night at a time when bars commonly close and drivers may

be driving while intoxicated; or (4) he himself observed appellee driving erratically. Nor did the

State elicit any testimony about the identity, availability, or other facts indicating that the cab

driver was providing reliable information. Nor was there testimony that the cab driver was

identifiable because some type of identification was obtained for possible later use. The State

simply did not elicit any testimony concerning the identity of the cab driver or even whether he

remained on the scene.

Sailo and Sierra-Hernandez are also readily distinguishable from this case because

in those cases the courts recognized the existence of exigent circumstances. From the facts

presented in Sierra-Hernandez , the court concluded that the informant "would have been available

for further questioning if the agent had judged the procedure appropriate." Id. The court further

found that there were articulated reasons to support the agent's failure to converse further with the

informant, to ask for his name, or to note the license of his car: The suspect was in a vehicle

moving away from the agent when the tip came and the court found that it was reasonable under

the circumstances for the agent to radio for assistance and to set off in pursuit, rather than to

question the informant. Id. (6) In both Sailo and Sierra-Hernandez , the police officers described the

informant with particularity and further, based on the "totality of the circumstances," justified the

stops because of exigent circumstances. I find it significant as well that in both cases the appellate

courts upheld the trial courts' decisions.

Did Officer Pruett Corroborate the Tip?

Even the State does not argue that they do not have to corroborate the tip; rather,

they argue that the tip was corroborated. The State contends that Officer Pruett sufficiently

corroborated the unidentified cab driver's information when he observed appellee pull into the

convenience store and drive around the back of the store. The State argues that such activity was

out of the ordinary and increased the likelihood that appellee was intoxicated. Officer Pruett's

testimony contradicts this assertion.

Officer Pruett did not testify that he thought appellee's driving around the

convenience store was strange, suspicious or out of the ordinary. Nor did he testify that appellee

drove fast, slow or abnormally around the convenience store. Officer Pruett testified: "I looked

and I saw [the truck] going around the back of the store, and then the vehicle came around [to] the

front of the store." On cross examination, Officer Pruett testified that, "I turned around and saw

the pickup pull in toward the back of the store in the parking lot, went around the store." The

record is silent as to whether there was anything unusual or suspicious about appellee driving

around the back of the store.

The record is silent as well on other critical details. As the majority acknowledges,

the record does not contain any evidence about the location of the stop except that it took place

in the parking lot of a convenience store at the corner of Ben White and South Congress. The

State did not establish the time of day the incident occurred (or even whether it was day or night),

whether the store was open or closed, whether the appellee was alone in the vehicle, whether there

was traffic at the store or the parking lot was full and appellee simply drove around the back of

the store looking for a place to park. Reviewing the factual basis for the trial court's ruling, there

was absolutely no evidence establishing that Officer Pruett considered appellee's driving around

the back of the convenience store unusual or an out-of-the-ordinary activity that might have

corroborated the tip. Additionally, Officer Pruett testified that he stopped appellee in his routine

manner by shining his flashlight at appellee and knocking on the driver's window. (8)

The State finally argues that Officer Pruett had to act quickly to detain appellee

because appellee was leaving the convenience store and was driving back into the stream of traffic

on South Congress Avenue. There is no evidence in the record supporting this assertion.

Significantly, unlike Sailo and Sierra-Hernandez , Pruett did not testify to any exigent

circumstances and his testimony is silent about whether appellee was attempting to park or to

continue driving back onto South Congress. From these facts, the trial court could easily conclude

that appellee was in the process of parking to enter the store. Even if J.L. had permitted an

exigency exception, (9) the record here is inadequate to warrant such a finding. Certainly, the

immediacy of the investigation is a relevant consideration under the totality-of-the-circumstances

test. But the State had the burden of proving that an exigency existed. See United States v.

Blount , 123 F.3d 831, 837 (5th Cir. 1997). Here, the State did not elicit testimony that exigent

circumstances existed.

Unlike the cases cited by the majority, there simply were no specific facts in the

record from which the officer could, in light of his experience and personal knowledge, together

with inferences from those facts, give him cause to effectuate a traffic stop. The inferences drawn

by the majority are without a factual basis. The majority, for example, infers that appellee was

unknown to the tipster and that therefore the driver was merely a good citizen as in Sierra-Hernandez ; there is nothing in the record from which one may draw such an inference. There is

nothing in the record to indicate that the informant is a mere citizen without motive or animus

whose tip should be given weight or serious attention. The majority also infers that the tipster was

somehow "accountable for his intervention." Again, unlike Sierra-Hernandez , there is nothing in

the record to support this assumption. (10)

The majority also assumes the informant's statement to the officer is based on

personal knowledge. There is no testimony that the informant spoke with personal knowledge of

the matters the officer claimed the informant observed. The assumptions made by the majority

are pure speculation and ignore the apparently contrary inferences that were made by the trial

court in granting the motion to suppress.

To lawfully stop appellee, it was not necessary that Officer Pruett observe appellee

perform illegal or criminal activity. But, under the Gates analysis, the State was required to

establish that Officer Pruett had specific and articulable facts that in some manner corroborated

the cab driver's reliability or tip of criminal activity beyond just identification of the suspect. The

Supreme Court recognized in Williams that informants' tips may vary greatly in their value and

reliability:

Some tips, completely lacking in indicia of reliability, would either warrant no

police response or require further investigation before a forcible stop of a suspect

would be authorized. But in some situations--for example, when the victim of a

street crime seeks immediate police aid and gives a description of his assailant, or

when a credible informant warns of a specific impending crime--the subtleties of

the hearsay rule should not thwart an appropriate police response.

407 U.S. at 147 . Unlike Terry , where swift intervention on the part of the officer was required

to prevent a serious crime of violence, here, there is no evidence that appellee was preparing to

re-enter a city street and endanger another, and the record suggests that the officer had ample

means for placing appellee under surveillance. While most would agree that it would have been

poor police work for Officer Pruett to simply walk away from the scene and do nothing, it is

equally questionable that he blindly accept the tip and act on it without some further indication of

its reliability; rather, the tip called for a calibrated response.

The tip here suffered from a threefold defect, with each fold compounding the

others. The informant was unnamed, he was not shown to have been reliable as to the offense

observed, and he gave no information that demonstrated personal observation of an offense. The

unidentified cab driver did not indicate to Officer Pruett that he had any personal knowledge that

appellee was intoxicated, that he had observed appellee drinking at any time, or that he had any

contact with appellee to know if he in fact was intoxicated. For all that appears in the record, the

tipster merely concluded that drinking might be involved because Officer Pruett testified that the

informant told him that he observed erratic driving. The record contains no independent facts

corroborating the reliability of the tip or suggesting that either the informant or the officer

observed a criminal offense. Consequently, when Officer Pruett stopped appellee he was acting

on an inchoate and unparticularized suspicion or hunch rather than specific and articulable facts

that appellee was intoxicated. This sort of tip differs markedly from the accurate prediction of

behavior recognized by the Supreme Court in J.L. The tip, uncorroborated as to its significant

respects by independent police work, did not exhibit sufficient indicia of reliability to justify the

investigative stop. Striking the balance here on this meager record, I would hold as did the trial

court that the State failed to establish that Officer Pruett had the reasonable suspicion required to

stop appellee.

If we are to rely upon the dispensations of the law, we must also draw on its

constraints. In Terry v. Ohio , the Supreme Court admonished those who might call upon its

teachings in close cases such as the one before us:

The scheme of the Fourth Amendment becomes meaningful only when it is assured

that at some point the conduct of those charged with enforcing the laws can be

subjected to the more detached, neutral scrutiny of a judge who must evaluate the

reasonableness of a particular search or seizure in light of the particular

circumstances. And in making that assessment it is imperative that the facts be

judged against an objective standard: would the facts available to the officer at the

moment of the seizure or the search "warrant a man of reasonable caution in the

belief" that the action taken was appropriate? Anything less would invite intrusions

upon constitutionally guaranteed rights based on nothing more substantial than

inarticulate hunches, a result this Court has consistently refused to sanction.

392 U.S. at 21-22 (citations omitted).

Neither the ends of law enforcement nor the Fourth Amendment are served by

reliance on the uncorroborated tip. The trial court expressly found that the officer was credible,

but that in the absence of something more--such as additional information about or from the

informant or observations by the police officer--the information on which the stop was based did

not rise to the level required by Terry and Gates . In the absence of evidence demonstrating

imminent danger or harm--or even a need for swift action-- Terry should be extended only to those

instances where observation by the officer himself or corroborated information shows "that

criminal activity may be afoot." Id. at 30 .

Exercising the scrutiny of the "detached" and "neutral" judge called upon to evaluate

the reasonableness of this stop, I believe the trial court properly applied the law to the facts of this

case and properly granted the motion to suppress. This is a close case; it requires a subtle

evaluation of the weight to be accorded the brief testimony of a single witness and the trial court

was in the best position to make that evaluation. The trial court did not abuse its discretion and

we should affirm its exercise of that discretion.

I would affirm the trial court's order suppressing the evidence.

Jan P. Patterson, Justice

Before Justices Yeakel, Patterson and Jones *

Filed: February 28, 2001

Publish

* Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See

Tex. Gov't Code Ann. § 75.003 (a)(1) (West 1998).

1. "This demand for specificity in the information upon which police action is predicated is the

central teaching of this Court's Fourth Amendment jurisprudence." Terry v. Ohio , 392 U.S. 1 ,

21 n.18 (1968); Berkemer v. McCarty , 468 U.S. 420, 439 (1984) (analogizing a traffic stop to a

" Terry stop").

2. In actuality, the tipster's personal observation concerned erratic driving behavior. It was

the tipster's hypothesis that this behavior could be the result of driving while intoxicated as

opposed to non-criminal driving behavior such as inattentive driving conduct.

3. In United States v. Villamonte-Marquez, the Supreme Court upheld a stop of a vessel in the

open seas based on an anonymous tip. 462 U.S. 579 (1983). The Court stated: "It seems clear that

if the customs officers in this case had stopped an automobile on a public highway near the border,

rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment

because of the absence of articulable suspicion." Id . at 588. Acknowledging the limits on police

powers to stop, without searching vehicles, Justice Brennan in his dissent noted that the Court had

"continued to insist, as we have always done, that there must be some meaningful check on the

arbitrary discretion of the police." Id . at 602 (citing United States v. Martinez-Fuerte , 428 U.S. 543,

558-59 (1976) and United States v. Brignoni-Ponce , 442 U.S. 873 , 882-83 (1975)).

4. The Supreme Court recognized that there may be circumstances under which the danger

alleged in an anonymous tip might be so great as to justify a search even without a showing of

reliability, such as a bomb threat. And, of course, an officer may stop and question a person if there

are reasonable grounds to believe that person is wanted for past criminal conduct, see Cortez , or in

locations where the reasonable expectation of Fourth Amendment privacy is diminished, such as

airports, schools, or checkpoints. J.L. , 529 U.S. 266, 274 (2000); but see City of Indianapolis v.

Edmond , 121 S. Ct. 447, 454 (2000) (reaffirming seizure other than at checkpoint "must be

accompanied by some measure of individualized suspicion").

5. Sailo and Sierra-Hernandez preceded J.L. which rejected this factor as "misapprehend[ing]

the reliability needed for a tip to justify a Terry stop." See J.L. , 529 U.S. at 272 .

6. In Sailo , the officer asked the citizen-informant to stop and pull over, presumably so the

officer could obtain information from him. Although the informant initially pulled over to the side

of the roadway, he evidently drove off after the stop but before either officer could get any

identifying information. State v. Sailo , 910 S.W.2d 184, 186-87 (Tex. App.--Fort Worth 1992, pet.

ref'd). (7)

7. The reasonableness of official suspicion is measured by what the officer knew at the time of

the stop. Cf. J.L. , 68 U.S.L.W. at 4237.

8. The State in its brief attempts to characterize the way Officer Pruett stopped appellee as

corroborating the cab driver's tip and providing Officer Pruett with the necessary reasonable

suspicion for the stop. At the hearing, Officer Pruett testified that he frequently stopped cars in

that same manner.

9. See 529 U.S. at 272-73 .

10. The majority also makes reference in a footnote to an affidavit for warrant of arrest

contained in the clerk's record. That document was not introduced into evidence and was not

before the trial court. The majority appears to assume that the individual named is the tipster, but

there is no evidence in the record from which one could make that inference. It is cause for no

small wonder that, in the suppression hearing, the prosecutor never asked for and the officer never

mentioned the identity of the tipster. In any event, while the document refers to information given

concerning the offense of "weaving in and out of the lane, crossing double yellow line," it makes

no reference to a DWI allegation and differs in other respects from the officer's testimony about

the substance of the tip.

1">

* Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See

Tex. Gov't Code Ann. § 75.003 (a)(1) (West 1998).

1. "This demand for specificity in the information upon which police action is predicated is the

central teaching of this Court's Fourth Amendment jurisprudence." Terry v. Ohio , 392 U.S. 1 ,

21 n.18 (1968); Berkemer v. McCarty , 468 U.S. 420, 439 (1984) (analogizing a traffic stop to a

" Terry stop").

2. In actuality, the tipster's personal observation concerned erratic driving behavior. It was

the tipster's hypothesis that this behavior could be the result of driving while intoxicated as

opposed to non-criminal driving behavior such as inattentive driving conduct.

3. In United States v. Villamonte-Marquez, the Supreme Court upheld a stop of a vessel in the

open seas based on an anonymous tip. 462 U.S. 579 (1983). The Court stated: "It seems clear that

if the customs officers in this case had stopped an automobile on a public highway near the border,

rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment

because of the absence of articulable suspicion." Id . at 588. Acknowledging the limits on police

powers to stop, without searching vehicles, Justice Brennan in his dissent noted that the Court had

"continued to insist, as we have always done, that there must be some meaningful check on the

arbitrary discretion of the police." Id . at 602 (citing United States v. Martinez-Fuerte , 428 U.S. 543,

558-59 (1976) and United States v. Brignoni-Ponce , 442 U.S. 873 , 882-83 (1975)).

4. The Supreme Court recognized that there may be circumstances under which the danger

alleged in an anonymo