TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00199-CR
Jody Lynn Dowler, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 9327, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING
After his motion to suppress evidence was overruled, appellant Jody Lynn Dowler
pleaded no contest to an indictment accusing him of felony driving while intoxicated (DWI). See
Tex. Penal Code Ann. §§ 49.04(a), .09(b) (West Supp. 2001). In accord with a plea bargain
agreement, the district court assessed punishment at imprisonment for six years and a $2500 fine,
suspended imposition of sentence, and placed appellant on community supervision. Appellant
brings forward three points of error complaining of the overruling of the suppression motion. We
will overrule these points and affirm.
At the suppression hearing, Smithville Police Officer Joe Meiron testified that on
the afternoon of July 4, 1999, he and his partner received a dispatch regarding a possible DWI
on Highway 71. The dispatch described the suspect vehicle as a black Ford pickup, Texas license
number TK2500. The officers drove to the indicated location, found the pickup, and began to
follow it. The truck was traveling 50 miles-per-hour in a 70 miles-per-hour zone. The officers
saw the vehicle drift from side-to-side within its lane of traffic. On at least two occasions, the
truck’s outside wheels touched the solid white line defining the outer edge of the highway. The
truck also crossed the broken line separating its lane from an onramp. The pickup did not respond
when the officers turned on their patrol vehicle’s emergency lights, stopping only after the officers
used their siren. The pickup was driven by appellant. We need not detail Meiron’s testimony
regarding appellant’s intoxication.
Appellant contends the stop of his vehicle violated the constitutions and statutes of
the United States and Texas. See U. S. Const. amends. IV, XIV; Tex. Const. art. I, §§ 9, 19;
Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (West 1977 & Supp. 2001); Tex. Transp. Code Ann.
§§ 542.301, 543.001 (West 1999). Because 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).
Appellant argues at length that he did not commit any moving traffic violation in
the officers’ presence. The State concedes this. Thus, we confine ourselves to the question of
whether appellant was lawfully detained to investigate the possibility that he was driving while
intoxicated.
In his second and third points of error, appellant asserts that the Texas constitutional
and statutory provisions cited above prohibit a police officer from stopping an automobile without
probable cause to believe a crime has been or is being committed. The cited statutes state the
unarguable proposition that an officer must have probable cause to make an arrest. But a vehicle
2
stop does not always constitute an arrest. Often, such a stop is merely a temporary investigative
detention for which only reasonable suspicion is required. See Berkemer v. McCarty, 468 U. S.
420, 439 (1984). Appellant cites no authority holding that the Texas Constitution does not permit
an officer to stop a motor vehicle under circumstances giving him reasonable suspicion to believe
that the driver is engaged in criminal activity. Points of error two and three are overruled.
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. 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. 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. Id. A reasonable suspicion means more than a mere hunch or suspicion.
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. Id.
In this case, the officers were dispatched to investigate a report of a possibly
intoxicated driver. There is no further evidence regarding the nature of the report, and we will
assume that it came from an anonymous source. 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. Alabama v. White, 496 U. S. 325, 329 (1990); Davis v. State, 989 S.W.2d
859, 863 (Tex. App. SAustin 1999, pet. ref’d). Normally, a police officer must have additional
3
facts before the officer may reasonably conclude that the tip is 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
weight it deserves. Id. at 864.
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. Id. An
accurate description of a subject’s readily observable location and appearance will help the police
correctly identify the person whom the tipster means to accuse, but does not show that the tipster
has knowledge of concealed criminal activity. Florida v. J. L., 529 U.S. 266, 272 (2000). In
this case, the officers’ discovery of the suspect pickup on Highway 71 did not give them any basis
for crediting the tipster’s suspicion that the driver of the pickup was intoxicated.
Meiron testified to other observations, however, that did lend support to the tip.
Meiron saw appellant weave or drift within his lane of traffic, touching the outside white line
more than once and once crossing into an onramp. Meiron stated that appellant had no reason to
enter the onramp, and that in his experience it is uncommon for sober drivers to drive in that
fashion. Meiron also testified that appellant was driving twenty miles-per-hour below the posted
limit, and that appellant failed to respond when the officer turned on the patrol car’s emergency
lights. While none of the observed conduct was criminal, even innocent acts can give rise to
reasonable suspicion under the proper circumstances. Woods, 956 S.W.2d at 38.
The opinions on which appellant relies are distinguishable. In State v. Arriaga, 5
S.W.3d 804, 807 (Tex. App. SSan Antonio 1999, pet. ref’d), and State v. Tarvin, 972 S.W.2d
4
910, 912 (Tex. App. SWaco 1998, pet. ref’d), the drivers were stopped solely on the basis of
observed drifting or weaving within a single lane of traffic, which the officers erroneously
believed to be a moving violation. The officers did not testify that they suspected the drivers of
being intoxicated, nor did they point to any other facts to justify the stops.
In Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App. SAustin 1998, pet. ref’d),
this Court held that a vehicle crossing a lane marker a single time did not support a reasonable
suspicion that the driver was intoxicated. We also noted that the officer did not claim to suspect
the driver of intoxication.
In Rheinlander v. State, 888 S.W.2d 917, 918 (Tex. App. SAustin 1994), pet.
dism’d, 918 S.W.2d 527 (Tex. Crim. App. 1996), the issue presented was whether the defendant
had been lawfully stopped pursuant to a “community caretaker” exception to the Fourth
Amendment warrant requirement. It was not contended that the stop was based on reasonable
suspicion of intoxication, and we expressed no opinion on that subject.
In Stewart v. State, 22 S.W.3d 646, 648 (Tex. App. SAustin 2000, pet. ref’d), an
officer stopped a vehicle solely on the basis of an anonymous tip that the driver might be
intoxicated. In Davis, 989 S.W.2d at 864-65, an officer stopped a vehicle solely on the basis of
an anonymous tip that the driver might be smoking marihuana. In neither case was there any
meaningful corroboration of the tip.
Officer Meiron and his partner received a report of a possibly intoxicated driver.
The officers did not stop appellant solely on the basis of that tip, but instead observed appellant’s
driving. While the officers did not see appellant commit a moving violation, appellant’s conduct
5
and the inferences an experienced officer could draw from that conduct gave the officers reason
to credit the tip. While the question is a close one, the totality of the circumstances gave the
officers a reasonable, articulable basis for suspecting that appellant was driving while intoxicated
and for detaining appellant to investigate their suspicion. Point of error one is overruled.
The judgment of conviction is affirmed.
__________________________________________
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Affirmed
Filed: April 12, 2001
Publish
6