TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 4585, HONORABLE ROYAL HART, JUDGE PRESIDING
Winters police officer Mark James Welander testified that around 5:30 p.m. on June 7, 1997, he "was dispatched to the Dairy Queen in Winters on a report that Mr. Joe Adams had been in the Dairy Queen restaurant and the clerks believed that he was intoxicated. The dispatch further notified me and said that Mr. Adams was driving his blue pickup truck and the clerks were worried that he was going to drive off . . . ." Welander was acquainted with appellant and knew he drove a blue pickup. The officer also knew that appellant "takes several medications for different things regarding his mental status" and had been convicted of driving while intoxicated. He added, "I have dealt with him before and he had been drinking . . . and . . . it didn't take me by surprise when I got the call." Welander later learned that the dispatch was based on a telephone call to the police by a person who refused to give a name.
Welander immediately drove to the Dairy Queen, where he saw appellant in his blue pickup in the drive-through lane. The officer parked and waited for appellant to drive away from the restaurant a few minutes later. He then followed appellant for six blocks before stopping him. The officer acknowledged that appellant did not drive erratically or violate any traffic law. The officer answered affirmatively when asked by the prosecutor, "The basis of your stop was strictly the call about a disturbance of a possible intoxicated person at the Dairy Queen, your personal knowledge about the Defendant, his mental history, his drinking history, his behavior history?" Welander agreed with the prosecutor's characterization of the stop as "[b]asically a public-safety-concern type stop."
Appellant moved to suppress all evidence obtained as a result of the stop on the ground that the officer did not have a constitutional basis for detaining him. 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 on a de novo basis. See Guzman v. State, 955 S.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 (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 specific 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 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex. App.--Austin 1999, pet. ref'd). 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 will not lend support to the tip. See id.
In this cause, Welander confirmed the anonymous caller's statement that appellant was at the Dairy Queen in his blue pickup. These facts, however, were apparent to any observer, and their corroboration gave the officer little, if any, reason to credit the caller's further allegation that appellant was intoxicated. As the officer conceded at the suppression hearing, the only real corroboration he had for the tip was his familiarity with appellant's reputation and record of convictions for driving while intoxicated.
Welander was entitled to take his knowledge of appellant's previous behavior into consideration when deciding whether to detain him for investigation. Had he acted immediately upon locating appellant at the Dairy Queen, he might have been justified in confronting him. See Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). But he was also required to consider his personal observations of appellant on the afternoon in question. The officer watched appellant for several minutes at the Dairy Queen without observing any unusual behavior, and then followed him as he drove for six blocks. Appellant did not commit a traffic offense, nor did the officer see any other indication of intoxication. While the officer's previous dealings with appellant may have tended to corroborate the anonymous caller's information, the first-hand evidence of his own eyes on the occasion in question tended to contradict that information. In effect, the officer's observation of appellant at the Dairy Queen and as he drove for six blocks reduced his reliance on the tip and lessened any justification for appellant's detention. While the question is a close one, we conclude that the totality of the circumstances known to Officer Welander did not objectively support a reasonable suspicion that appellant was driving while intoxicated at the moment he was detained.
The opinions cited by the State are distinguishable on their facts. In Glenn v. State, 967 S.W.2d 467, 470-71 (Tex. App.--Amarillo 1998), pet. dism'd, 988 S.W.2d 769 (Tex. Crim. App. 1999), the anonymous informer's tip was corroborated both by the police officer's previous knowledge of the suspect's criminal activities and by the informer's accurate description of the suspect's future behavior. In State v. Adkins, 829 S.W.2d 900, 902 (Tex. App.--Fort Worth 1992, pet. ref'd), the police officer saw the suspect commit a traffic offense after receiving the anonymous tip that he was driving while intoxicated.
In an apparent reference to the statement that this was "basically a public-safety-concern type stop," the State argues that the officer was authorized to stop appellant to investigate the possibility that he "had some other problem affecting his own health and safety, as a community care-taking concern." Texas has recently recognized the community caretaking exception to the Fourth Amendment warrant requirement. See Wright v. State, No. 297-98 (Tex. Crim. App. Dec. 15, 1999). Pursuant to this exception, a police officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. See id., slip op. at 6. In the cause before us, however, there is no evidence that Welander stopped appellant out of a concern for his personal health or welfare. The officer did not testify that appellant appeared to be in distress or otherwise indicate a belief that appellant needed assistance. See id. Insofar as the officer's testimony reveals, he stopped appellant strictly for the purpose of investigating the suspected criminal violation.
Because we hold that appellant's motion to suppress should have been granted, the judgment of conviction is reversed and the cause is remanded for further proceedings.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Jones and B. A. Smith
Reversed and Remanded
Filed: January 21, 2000
Do Not Publish
avis v. State, 989 S.W.2d 859, 863 (Tex. App.--Austin 1999, pet. ref'd). 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 will not lend support to the tip. See id.
In this cause, Welander confirmed the anonymous caller's statement that appellant was at the Dairy Queen in his blue pickup. These facts, however, were apparent to any observer, and their corroboration gave the officer little, if any, reason to credit the caller's further allegation that appellant was intoxicated. As the officer conceded at the suppression hearing, the only real corroboration he had for the tip was his familiarity with appellant's reputation and record of convictions for driving while intoxicated.
Welander was entitled to take his knowledge of appellant's previous behavior into consideration when deciding whether to detain him for investigation. Had he acted immediately upon locating appellant at the Dairy Queen, he might have been justified in confronting him. See Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). But he was also required to consider his personal observations of appellant on the afternoon in question. The officer watched appellant for several minutes at the Dairy Queen without observing any unusual behavior, and then followed him as he drove for six blocks. Appellant did not commit a traffic offense, nor did the officer see any other indication of intoxication. While the officer's previous dealings with appellant may have tended to corroborate the anonymous caller's information, the first-hand evidence of his own eyes on the occasion in question tended to contradict that information. In effect, the officer's observation of appellant at the Dairy Queen and as he drove for six blocks reduced his reliance on the tip and lessened any justification for appellant's detention. While the question is a close one, we conclude that the totality of the circumstances known to Officer Welander did not objectively support a reasonable suspicion that appellant was driving while intoxicated at the moment he was detained.
The opinions cited by the State are distinguishable on their facts. In Glenn v. State, 967 S.W.2d 467, 470-71 (Tex. App.--Amarillo 1998), pet. dism'd, 988 S.W.2d 769 (Tex. Crim. App. 1999), the anonymous informer's tip was corroborated both by the police officer's previous knowledge of the suspect's criminal activities and by the informer's accurate description of the suspect's future behavior. In State v. Adkins, 829 S.W.2d 900, 902 (Tex. App.--Fort Worth 1992, pet. ref'd), the police officer saw the suspect commit a traffic offense after receiving the anonymous tip that he was driving while intoxicated.
In an apparent reference to the statement that this was "basically a public-safety-concern type stop," the State argues that the officer was authorized to stop appellant to investigate the possibility that he "had some other problem affecting his own health and safety, as a community care-taking concern." Texas has recently recognized the community caretaking exception to the Fourth Amendment warrant requirement. See Wright v. State, No. 297-98 (Tex. Crim. App. Dec. 15, 1999). Pursuant to this exception, a police officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. See id., slip op. at 6. In the cause before us, however, there is no evidence that Welander stopped appellant out of a concern for his personal health or welfare. The officer did not testify that appellant appeared to be in distress or otherwise indicate a belief that appellant needed assistance. See id. Insofar as the officer's testimony reveals, he stopped appellant strictly for the purpose of investigating the suspected criminal violation.
Because we hold that appellant's motion to suppress should have been granted, the judgment of conviction is reversed and the cause is