The opinion
Opinion issued December 15, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-01062-CR
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JELLIAN ARDOIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1458322
MEMORANDUM OPINION
Based on information received from an anonymous 911 call, police officers
conducted an investigative stop and temporarily detained appellant Jellian Ardoin.
After smelling the odor of marijuana coming from inside his car, the officers
performed a search and found marijuana and cocaine.
Ardoin pleaded guilty, without an agreed recommendation as to punishment,
to the offense of possession with intent to deliver cocaine weighing between 4
grams and 200 grams. See TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D),
481.112(a)(d). The trial court sentenced him to 25 years in prison. In a single issue
on appeal, Ardoin challenges the investigative stop and contends that the trial court
erred by refusing to suppress evidence acquired after the stop.
Because the arresting officers had reasonable suspicion that Ardoin had been
engaged in criminal activity, we affirm the judgment of conviction.
Background
A 911 operator received a call from a woman on the southeast side of
Houston, in an area known for gang and narcotics activity. The caller reported that
a man had been standing in the middle of the street waving a gun, and that he had
entered a black Dodge Challenger. She gave the operator a description of the man,
the location of the incident, and the car’s license plate number.
Two police officers were dispatched to the location within several minutes
of the call. The officers received a “call slip” from dispatch, containing the
information reported on the 911 call. Upon arrival, the officers found a black
Challenger backing into a driveway. The officers verified that the license plate
matched the number reported on the 911 call, and they pulled into the driveway in
front of the Challenger. They got out of their car and approached the vehicle,
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which was occupied by appellant Jellian Ardoin. As the officers approached,
Ardoin opened the car door. The officers smelled the odor of marijuana coming
from inside the vehicle. Based on the smell of marijuana, one of the officers
searched the car and found marijuana and powder cocaine inside.
Ardoin was arrested and indicted for possession with intent to deliver
cocaine weighing between 4 grams and 200 grams. Prior to trial, he filed a motion
to suppress evidence. He argued that the 911 call was not sufficiently reliable and
that the call did not allege that he had engaged in criminal activity, both of which,
he argued, would be necessary to justify an investigative stop. Thus, Ardoin only
challenged the legality of the initial stop. He requested that the trial court suppress
all evidence obtained after that point. He did not challenge the officers’ subsequent
search of his vehicle or his arrest.
At the time of trial, the court had not yet ruled on the motion to suppress.
The court arraigned Ardoin in front of the jury, and he initially pleaded “not
guilty” to the charges alleged in the indictment. The State introduced a recording
of the 911 call and then called one of the officers who temporarily detained Ardoin
to testify about the events leading up to the arrest. Before the officer testified about
the investigative stop, the court held a hearing on the motion to suppress outside of
the presence of the jury. During the hearing, the officer testified that neither he nor
the other arresting officer personally had observed Ardoin engaged in criminal
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activity prior to detaining him. The information provided in the 911 call was the
only information from which the officers formed a suspicion of criminal activity.
The court denied the motion to suppress. Ardoin changed his plea to guilty, and he
also pleaded true to the alleged enhancements.
The trial court assessed punishment at 25 years in prison. Ardoin appealed.
Analysis
In his sole issue, Ardoin contends that the trial court erred by denying his
motion to suppress evidence. Specifically, he argues that the officers’ investigative
stop could not be supported by the information given to them by dispatch. He
contends that because the 911 call did not contain sufficient indicia of reliability, it
did not support a reasonable suspicion of criminal activity necessary to conduct the
stop.
A ruling on a motion to suppress evidence is reviewed for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We
give almost total deference to a trial court’s determination of historical facts,
especially if those determinations turn on witness credibility or demeanor, and we
review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.
Crim. App. 2008). At a suppression hearing, the trial court is the sole and exclusive
trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d
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278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to believe
or disbelieve all or part of the testimony of a witness. State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000). Although appellate courts generally limit their review
of the trial court’s ruling to an examination of the evidence produced at the
suppression hearing, because the court heard the motion to suppress after a portion
of the State’s case-in-chief, we will consider all of the evidence that was before the
court at the time of its ruling. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.
Crim. App. 2007).
A police officer may detain a person temporarily for investigative purposes
if the officer reasonably suspects that the detained person is connected with a
crime. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968); Wade v.
State, 422 S.W.3d 661, 668–69 (Tex. Crim. App. 2013). Reasonable suspicion
exists when a police officer has “a particularized and objective basis for suspecting
the particular person stopped of criminal activity.” Navarette v. California, 134 S.
Ct. 1683, 1687 (2014); see Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim.
App. 2014). “A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those facts, would
lead him reasonably to conclude that the person detained is, has been, or soon will
be engaged in criminal activity.” Matthews, 431 S.W.3d at 603. Courts determine
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if reasonable suspicion exists by objectively considering the totality of the
circumstances. Id.
Whether a reasonable suspicion exists “is dependent upon both the content
of information possessed by police and its degree of reliability.” Navarette, 134 S.
Ct. at 1687 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416
(1990)). The detaining officer need not personally observe nor be aware of every
fact that supports a reasonable suspicion to detain; rather, “the cumulative
information known to the cooperating officers at the time of the stop is to be
considered in determining whether reasonable suspicion exists.” Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (quoting Hoag v. State, 728
S.W.2d 375, 380 (Tex. Crim. App. 1987)); see also Navarette, 134 S. Ct. at 1687–
88; Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).
A stop may be justified if the facts underlying the stop are observed by a
civilian informant. See Navarette, 134 S. Ct. at 1688; see also Brother, 166 S.W.3d
at 257. An anonymous tip alone is rarely enough to justify an investigative stop.
See Navarette, 134 S. Ct. at 1688; see also Martinez v. State, 348 S.W.3d 919,
923–24 (Tex. Crim. App. 2011). But when an anonymous tip is supported by
“sufficient indicia of reliability,” it may justify a stop. See Navarette, 134 S. Ct. at
1688; Martinez, 348 S.W.3d at 923–924. Courts have identified several indicia of
reliability with respect to tips from a citizen informant. An informant may be
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treated as more reliable if he provides a firsthand account and a detailed
description of wrongdoing. Taflinger v. State, 414 S.W.3d 881, 885 (Tex. App.—
Houston [1st Dist.] 2013, no pet.); see also Navarette, 134 S. Ct. at 1689;
Derichsweiler, 348 S.W.3d at 915–16. The more information provided by the
informant that the police are able to corroborate, the more reliable the tip. See
Taflinger, 414 S.W.3d at 885. Courts consider an informant who is not connected
with the police inherently trustworthy when advising the police of suspected
criminal activity. Id. The Supreme Court has recognized that because the 911
system “has some features that allow for identifying and tracing callers,” tips from
911 callers should be considered more reliable. Navarette, 134 S. Ct. at 1689–90;
see Carr v. State, No. 01-15-00246-CR, 2016 WL 796878 at *3–4 (Tex. App.—
Houston [1st Dist.] March 1, 2016, no pet.) (mem. op., not designated for
publication). Thus, in order for the officers to have properly detained Ardoin and
conducted an investigative stop, the 911 call must have contained sufficient indicia
of reliability and the call must have contained information that provided the
officers with a reasonable suspicion that he had engaged in criminal activity. See
Martinez, 348 S.W.3d at 924; Matthews, 431 S.W.3d at 603.
In Navarette, the Supreme Court analyzed whether a 911 call contained
sufficient indicia of reliability to justify an investigative stop. Navarette, 134 S. Ct.
at 1686–87, 1692. In that case, highway patrolmen received a report from an
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anonymous 911 caller that a silver Ford F–150 pickup traveling southbound on the
highway had run him off the road. Id. at 1686–87. A few minutes later, a highway
patrolman encountered a truck matching the one described by the caller traveling
in the direction reported. Id. at 1687. Though the record contained no indication
that the patrolman himself observed the silver pickup driving erratically, the Court
held that the caller’s tip contained adequate indicia of reliability to support a
reasonable suspicion for a stop, given that it was based on eyewitness knowledge,
was contemporaneously made, and was made to the 911 emergency system. Id. at
1686–87, 1692.
The tip regarding Ardoin was given to the officers through the 911
emergency system, therefore creating some indicia of reliability. See id. Further,
the caller provided the dispatcher with information based on personal knowledge.
She reported that she watched a man in the street waving a gun. She described the
man and his car, including his exact license plate number, and correctly identified
their location. The officers arrived at the location within minutes of the 911 call.
Upon their arrival, the officers were able to corroborate much of the information
provided by the caller. They found a black Dodge Challenger with a license plate
number matching the one given by the caller, and they found a man matching the
description given by the caller. Thus, the 911 call received in this case contained
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sufficient indicia of reliability. See id.; see also Derichsweiler, 348 S.W.3d at 915–
16; Taflinger, 414 S.W.3d at 885.
Ardoin attempts to distinguish the 911 call in this case from the one in
Navarette because this caller did not identify herself to the dispatcher. But in
coming to its conclusion that a 911 call could contain sufficient indicia of
reliability, the Navarette Court assumed that the 911 caller was anonymous.
Navarette, 134 S. Ct. at 1687 n.1. The fact that the caller in this case did not
identify herself to the dispatcher does not deprive the call of its indicia of
reliability. See id. at 1689–90.
With respect to the requirement that the call had to provide the officers with
a reasonable suspicion of criminal activity, Ardoin factually disputes that the caller
reported a man waving a gun in the street. Instead, he contends that the 911
operator—not the caller—made the statement that the man was waving a gun, and
therefore the information provided to the officers was incorrect. From this he
argues that even if the call were reliable, its substance did not justify an
investigative stop. He contends the call itself did not provide information sufficient
to provide the officers with a reasonable suspicion that he was engaged in criminal
activity, yet the officers relied solely upon the information provided to them
regarding the call in conducting their investigative stop of Ardoin.
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Despite characterizing the recording of the 911 call as “unclear,” the trial
court found that it was the caller, not the 911 operator, who stated that a man was
waving a gun. Because we give almost total deference to the trial court’s
determination of historical fact, we accept the trial court’s finding. Neal, 256
S.W.3d at 281.
When the officers detained Ardoin, they had a sufficiently reliable tip from
an eyewitness who stated that a man was waving a gun in the middle of the street.
This action took place in area of town that is known for high levels of gang and
narcotic activity. Before conducting an investigative stop, the officers corroborated
most of the information provided by the caller. The only thing the officers did not
see was Ardoin waving the gun.
The officer who conducted the investigative stop believed that Ardoin had
engaged in deadly conduct. Waving a gun around in the middle of the street could
constitute the offense of deadly conduct. See TEX. PENAL CODE § 22.05 (a person
commits deadly conduct “if he recklessly engages in conduct that places another in
imminent danger of serious bodily injury”). Therefore, based on an objective view
of the totality of the circumstances, the officers possessed sufficient information to
support a reasonable suspicion that Ardoin had been engaged in criminal activity.
See Derichsweiler, 348 S.W.3d at 916–17.
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Because the 911 call contained sufficient indicia of reliability and the totality
of the circumstances supported a conclusion that the officers had reasonable
suspicion that he was or had been engaged in criminal activity, we hold that the
officers properly detained Ardoin for an investigative stop. Therefore, the trial
court did not abuse its discretion by denying the motion to suppress evidence.
We overrule Ardoin’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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