John David MARTINEZ, Appellant,
v.
The STATE of Texas.
Nos. PD-1238-10, PD-1239-10.
Court of Criminal Appeals of Texas.
June 29, 2011.*921 Julie M. Balovich, Asst. Public Defender, Del Rio, for Appellant.
Carter Winters, Special Prosecutor, Boise, Lisa C. McMinn, State's Attorney, Austin, for State.
OPINION
JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.
In two cases stemming from the same incident, the state charged appellant with driving while intoxicated (DWI) and possession of marijuana. Appellant filed his motion to suppress based upon claims that the initial investigatory detention was without probable cause or reasonable suspicion and that the subsequent arrest and search of appellant's person and vehicle was without probable cause. After an evidentiary hearing, the trial court denied appellant's motion. Appellant then plead guilty to both charges, and the trial court assessed punishment at 180 days' confinement, probated for 12 months, and a $500 fine for the possession charge, and 180 days' confinement, probated for 12 months, and a $600 fine for the DWI charge.
The Fourth Court of Appeals affirmed appellant's convictions. Martinez v. State, 318 S.W.3d 24 (Tex.App.-San Antonio 2009, pet. granted). Appellant filed a motion for rehearing and a motion for reconsideration en banc, both of which were overruled. *922 This Court granted appellant's petitions for discretionary review.[1] After review, we find that the officer did not have reasonable suspicion to make an investigatory stop of appellant's vehicle, and therefore, the court of appeals erred in affirming appellant's convictions. Accordingly, we reverse and remand the causes to the court of appeals for further proceedings.
Facts
The facts are undisputed. Officer Paul Hurley of the Del Rio Police Department was on patrol on a Sunday night. At 10:55 p.m., the police dispatcher radioed that an anonymous caller reported that a male driving a blue Ford pickup truck stopped at the intersection of 17th and Main Streets, put two bicycles into the back of the truck, and drove away westbound. Hurley was on patrol in the general area and spotted a green Ford F-250 truck that "looked like it was blue"[2] approximately three quarters of a mile away from the site of the reported incident. He began following the truck and called dispatch to confirm the vehicle description. He trailed the truck for four blocks without observing any traffic violations, then stopped the vehicle. As he walked to driver's side of the truck, Officer Hurley noticed, in the truck bed, two bicycles that were not visible to him until he approached the truck. While speaking with appellant, the truck's driver, Hurley detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes.
Officer Hurley told appellant that his truck matched the description of a vehicle involved in a possible theft. Hurley called dispatch to see if there was a complaint of stolen bicycles at that location, and dispatch informed him that there was not. He then asked dispatch if the caller could come to the scene. The caller arrived at the location of the detention and confirmed that Hurley had pulled over the same truck that had picked up the two bicycles. Officer Hurley did not know the name of the caller, but did not believe that the caller had any relationship to the Del Rio Police Department. After he administered field-sobriety tests and a blood-alcohol test using a portable Breathalyzer, Officer Hurley arrested appellant for DWI. His subsequent search of appellant and his vehicle produced a usable amount of marijuana. No charges were filed in the supposed theft of the bicycles.
Standard of Review
In review of a trial court's ruling on a motion to suppress, an appellate court must apply a standard of abuse of discretion and overturn the trial court's ruling only if it is outside the zone of reasonable disagreement.[3] The appellate court must *923 apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations.[4]
Officer Hurley was the only witness to testify during appellant's evidentiary hearing. The historical facts elicited from Officer Hurley's testimony are not at issue; the issue is whether these uncontroverted facts created a reasonable suspicion such that Officer Hurley was justified in initiating a Terry stop.[5] We review the record de novo.
At a suppression hearing, the state need not establish that a crime occurred prior to the investigatory stop, but it must elicit testimony showing sufficient facts to prove that reasonable suspicion existed that a particular person has engaged in, or soon will be engaging in, criminal activity.[6] This standard is an objective one;[7] the court will take into account the totality of the circumstances in order to determine whether a reasonable suspicion existed for the stop.[8] The determination of reasonable suspicion is dependent upon both the content of the information known to the officer and its degree of reliability.[9] To justify further investigation, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion.[10] Those facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to crime.[11]
When an officer's suspicion of criminal activity arises from an anonymous caller rather than from the officer's own observations, the tip seldom provides reasonable suspicion for an investigatory stop.[12] The tip lacks "sufficient indicia of reliability," such as a suitable level of police corroboration,[13] to establish the "requisite quantum of suspicion."[14] An inverse relationship exists between the reliability of the informant and the amount of corroborated information required to justify the police intrusion; the less reliable the tip, the more information is needed.[15] However, when the informant provides self-identifying information that makes himself accountable for the intervention, the degree of reliability significantly improves.[16]
*924 Analysis
The court of appeals determined that, although there was no testimony establishing a continued conversation between the informant and police dispatch, the very fact that dispatch was able to direct the caller to the scene establishes that the two maintained contact. Therefore, the court concluded, the informant was entitled to a higher degree of reliability than a truly anonymous caller.[17] In its opinion, the court compared this case to Reesing,[18]Hawes,[19] and Sailo,[20] in which the respective appellate courts found the anonymous tipsters to be reliable because they placed themselves in a position in which they could be easily identified and held accountable.
This case is distinguishable from those cases, however. This record indicates that the anonymous caller did not provide any identification information to Officer Hurley or to dispatch, did not follow the suspect's vehicle, and was not present at the scene before the stop. While the caller did appear at the scene after the stop, "the reasonableness of official suspicion must be measured by what the officers knew before they conducted their search;"[21] reasonable suspicion cannot be obtained retroactively. In Derichsweiler,[22] this Court articulated that, in a reasonableness analysis, any information known to the police dispatcher is imputed to the detaining officer. The record in Derichsweiler showed that the police dispatcher remained on the line with the caller, knew the caller's name, and asked the caller to remain at the scene; the caller's reliability was not at issue. Here, the record does not indicate that dispatch knew anything more than the bare bones, somewhat inaccurate, information that was provided to Officer Hurley.
Nor does the record reveal how dispatch was later able to direct the caller to the scene. The testimony presented during the hearing on the motion to suppress tends to disallow the inference that the caller maintained contact throughout. It may be that the two maintained contact, but that would have required the caller, who clearly did not follow appellant's vehicle, to remain on the line for well over seven minutes, the time between the initial dispatch and Officer Hurley's request that the caller go to the scene. It may be that dispatch obtained the caller's number from caller ID.[23] However the second contact *925 was made, the caller's identifying information was not revealed before the stop, so at that time, the caller was anonymous, and the tip should have been accorded the reliability that accompanies that status.
Officer Hurley had neither specific, articulable facts nor the necessary level of police corroboration that is required to produce reasonable suspicion and thereby warrant an investigative detention. The facts must show that an unusual activity occurred, the unusual activity is related to a crime, and the detained person had some connection to the unusual activity.[24] Here, the unusual activity reported was that, late at night, a blue Ford pickup truck stopped at the intersection of 17th and Main Street, put two bicycles into the bed of his truck, and left the area going west. This activity was unusual, and the officer's conclusion, that this act was "suspicious," was a reasonable one given the officer's experience and the time of day at which the activity took place.[25]
However, the court of appeals made the conclusory determination that the unusual activity was related to criminal activity by stating that Officer Hurley considered the call to be a report of a theft. As the record indicates, there was neither a complainant nor a report of stolen bicycles. The anonymous caller did not report contextual factors that reasonably connected the unusual activity to a theft, such as witnessing the suspect use bolt cutters to cut a bike lock or stating that the bikes were taken from someone's garage. More than the officer's opinion that an activity is "suspicious" was needed to relate the activity to a criminal act.[26]
Finally, Officer Hurley had very little information, corroborated or otherwise, to connect appellant to the unusual activity other than the fact that appellant was driving a Ford pickup truck, similar in color to the described truck, close to the time that the unusual activity occurred, and within three quarters of a mile west of the reported incident.[27] Even though Officer Hurley was informed that the alleged suspect was male, he testified that he would have pulled over a Ford pickup truck driven by a woman. Before he approached the truck after the stop, Officer Hurley did not see any bicycles in the bed of appellant's truck, nor did he have any other reason to stop the truck. The specific, articulable, corroborated facts known by the officer at the time of the stop were minimal.
In this court's recent decision in Derichsweiler,[28] an informant and his wife reported that a man they did not know pulled his car beside theirs in a McDonald's drive-through lane, stared at *926 them grinning, and lingered there for between thirty seconds to a minute before the man drove on. The man returned, and the grinning and staring occurred twice more during their wait in the drive-through lane. They felt intimidated and threatened, so they called 911 and reported the encounter. They provided the dispatcher with their names, a description of the offending car, the license plate number of the car, and the suspicious behavior. The dispatcher asked them to remain on the scene, and shortly thereafter an officer arrived to speak with them and get their contact information. Meanwhile the stranger left the McDonald's parking lot and engaged in similar conduct near cars in the adjacent Wal-Mart parking lot.
At trial, the testifying officer noted that the only information that he had was the make, model, color, and license plate of the vehicle, and that it was circling the parking lot of Wal-Mart and McDonald's. This Court held that, although the information provided need not lead to the conclusion that an identifiable penal-code offense has occurred, the information must still be sufficiently detailed and reliable to support the reasonable suspicion that criminal activity is about to occur.
Even with the information known to both the officer and dispatcher, as well as having a known source for the information, this Court declared that the case in Derichsweiler was "admittedly a close call."[29] Here, Officer Hurley had significantly less, and less reliable, information: a minimal, somewhat inaccurate description of the suspect vehicle, an anonymous caller, a larger search area, and no suspicious behavior observed by the officer.
Conclusion
Based on our review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, we find that Officer Hurley's investigatory detention of appellant was not supported by reasonable suspicion. The court of appeals erred in affirming the trial court's judgments. We reverse the judgments of the court of appeals and remand the causes to that court for further proceedings consistent with this opinion.
KELLER, P.J., filed a dissenting opinion.
KELLER, P.J., dissenting.
This case presents two issues: (1) whether the caller was anonymous, and (2) whether there were enough articulable facts (in light of either an anonymous or a non-anonymous caller) to justify a traffic stop. I would hold that, even assuming the caller was anonymous, the officer had enough articulable facts to justify a traffic stop.
Officer Hurley said the caller was anonymous. Nevertheless, the officer asked dispatch to contact the caller, and the caller showed up at the location of the stop to identify appellant's vehicle. Under today's technology, it is possible that dispatch could have contacted the caller regardless of whether the caller identified himself. The State did not put the dispatcher, or anyone else, on the witness stand to detail just how the police were able to direct the caller to the scene. Given Officer Hurley's own statement that the caller was anonymous, I will operate under the assumption that such is the case.[1]
*927 But Officer Hurley had several articulable facts on which to base a traffic stop. He received the dispatch at 10:55 p.m. It was a dark but clear night, and traffic was light at that late hour. A caller had described a man picking up two bicycles and placing them in the bed of a blue Ford pickup truck in a particular area of town. Seven minutes after receiving the dispatch and driving towards the area, he spotted a dark green Ford pickup truck that, at night, looked like it was blue. The pickup truck was one-half to three-fourths of a mile from the area in which the bicycles were taken. The pickup truck had an open bed, though no bicycles were visible.[2]
So, the pickup truck looked blue, it was a Ford, it was moving, it was close to the location of the incident, it was being driven by a man, the bed of the truck was open, and traffic was light at the late hour of night. These were enough facts to give Officer Hurley reasonable suspicion to stop the truck to see if there were any bicycles in its bed.
With respect to traffic stops for DWI or reckless driving, several jurisdictions have held that an anonymous phone call that accurately describes the vehicle, without more, may justify a brief stop to prevent a possible accident and investigate a possible DWI.[3] Although these cases are premised in part on the danger that the reckless *928 driving poses to the public, and the need to stop the driver immediately rather than wait for the driver's recklessness or impairment to become apparent, a similar consideration exists in the present case. Officer Hurley needed to act quickly to prevent a possible thief from getting away with the goods. We know in hindsight that appellant was the person who took the bicycles, but Officer Hurley did not know that. If appellant had not taken the bicycles, then Officer Hurley would need to quickly continue the search for the suspect. A stop for the sole purpose of determining whether appellant had bicycles in the bed of his truck would be even less intrusive than a DWI-investigation stop of a reckless driver.[4] If there had been no bicycles, Officer Hurley could have and should have immediately terminated the stop, but there were bicycles, and so Officer Hurley had authority to approach the driver's side of the vehicle and investigate further.
It is true that no bicycles had been reported stolen, but it is reasonable to assume that the owners, if any, would not have been aware of any theft since it happened late at night and only seven minutes had elapsed. The caller explained how he came to know that there were bicycles in the bed of the pickup truck: he saw a man put them there. This explanation contrasts favorably with the situation encountered by the United States Supreme Court in Florida v. J.L., where an anonymous informant told the police that a black male at a bus stop possessed a gun, but no gun was visible and the informant had not explained how he knew the black male had a gun.[5] And while Officer Hurley said he would have stopped any dark-colored Ford pickup truck and would have stopped it even if it were being driven by a woman, his subjective intentions are not relevant to the reasonable-suspicion inquiry, which is solely an objective determination.[6]
I would affirm the judgments of the courts below. I respectfully dissent.
NOTES
[1] The three grounds that this Court granted review are whether:
1. The court of appeals improperly relied upon corroborating information obtained by the officer after the inception of a stop to justify reliance on an anonymous tipster's report;
2. A police officer's belief that an incident is "suspicious" is a specific, articulable fact that supports reasonable suspicion to justify the investigative detention of an individual;
3. The Fourth Amendment and the Texas Constitution permit a police officer to conduct an investigative detention of a male driving a blue Ford pickup truck based on an anonymous tipster's report that a person of that description stopped, picked up two bicycles, and drove off.
[2] I R.R. at 14.
[3] State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.App.2006).
[4] Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Crim.App.1997).
[5] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (reasonable suspicion required to justify an investigatory stop).
[6] Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.App.2001).
[7] Terry, 392 U.S. at 21-22, 88 S. Ct. 1868.
[8] U.S. v. Cortez, 449 U.S. 411, 417-418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).
[9] Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).
[10] Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000); Terry, 392 U.S. at 21, 88 S. Ct. 1868.
[11] Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex.Crim.App.2011).
[12] Alabama v. White, 496 U.S. 325, 327, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).
[13] See Adams v. Williams, 407 U.S. 143, 147-149, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
[14] White, 496 U.S. at 330, 110 S. Ct. 2412.
[15] Id.
[16] Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim.App.2005).
[17] Martinez v. State, 318 S.W.3d at 28.
[18] Reesing v. State, 140 S.W.3d 732, 737 (Tex. App.-Austin 2004, pet. ref'd) (caller identified himself and officer knew that caller remained on cell phone, followed suspect's vehicle, and waited at scene to give statement to police).
[19] Hawes v. State, 125 S.W.3d 535, 540 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (officer knew that the caller, a tow-truck driver, was following suspect and observed a tow-truck that matched description given by the caller).
[20] State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.-Fort Worth 1995, pet. ref'd) (citizen stopped to give police information in person, waited on side of road at officer's instruction).
[21] Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000); Crain v. State, 315 S.W.3d 43, 53-53 (Tex.Crim.App.2010).
[22] Derichsweiler v. State, 348 S.W.3d 906.
[23] Martinez v. State, 318 S.W.3d 24, 31 (Tex. App.-San Antonio (2009), pet. granted) (Simmons, J., dissenting).
[24] Derichsweiler, 348 S.W.3d at 916.
[25] Appellant argues that the court of appeals erred in considering the time of day as there was no evidence as to when the alleged incident occurred. The record supports a reasonable inference on the part of the officer that the incident occurred just prior to the anonymous call.
[26] See J.L., 529 U.S. at 272, 120 S. Ct. 1375 ("reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality.. . ."); U.S. v. Benavides, 291 Fed.Appx. 603, 606 (5th Cir.2008) (tip that pickup truck carrying wooden crates in a non-warehouse area and two individuals loading unknown cargo was not specific assertion of illegality).
[27] This Court has viewed the video recording of the stop in question, which was made by Officer Hurley's dashboard camera and admitted into evidence. We note that, during Officer Hurley's pursuit of appellant's truck and the subsequent stop, several other dark-colored pickup trucks drive through this area.
[28] Derichsweiler v. State, 348 S.W.3d 906.
[29] Id. at 917.
[1] But see Florida v. J.L., 529 U.S. 266, 275, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (Kennedy, J., concurring) (faulting the police officer for acting on an anonymous tip and pointing out that "[t]he record does not show whether some notation or other documentation of the call was made either by a voice recording or tracing the call to a telephone number," and expounding: "Instant caller identification is widely available to police, and, if anonymous tips are proving unreliable and distracting to police, squad cars can be sent within seconds to the location of the telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. It is unlawful to make false reports to the police . . . and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips").
[2] After the truck was stopped, a vehicle would drive by occasionally. A few of those vehicles were pickup trucks. Some were light colored and could not have been perceived as blue. Perhaps two pickup trucks were dark colored, but it is impossible to tell from the video the make of those trucks, or whether the dark color of those trucks could have been perceived as blue, or instead, whether they could have been a different color not easily confused with blue, such as brown or red.
[3] See State v. Hanning, 296 S.W.3d 44, 52-53 (Tenn.2009); People v. Wells, 38 Cal. 4th 1078, 1080-81, 45 Cal. Rptr. 3d 8, 136 P.3d 810, 811 (2006) ("We granted this case to consider under what circumstances, if any, police officers may stop a vehicle and detain its driver based solely on an uncorroborated phoned-in tip that accurately describes the vehicle and its location and relates that a possibly intoxicated person is behind the wheel, `weaving all over the roadway.' As we explain, although the law appears somewhat unsettled, the better rule, firmly supported by many cases as well as by considerations of public safety and common sense, is that a limited traffic stop is permitted under such circumstances to confirm the officer's reasonable suspicion of intoxicated driving before a serious traffic accident can occur." Vehicle was described as "a 1980's model blue van traveling northbound on Highway 99 at Airport Drive."); Bloomingdale v. State, 842 A.2d 1212, 1222 (Del.2004) (referring to the "less invasive nature of a traffic stop as compared with a public body frisk" that occurred in J.L.); State v. Prendergast, 103 Hawai'i 451, 458-61, 83 P.3d 714, 721-24 (2004); State v. Crawford, 275 Kan. 492, 67 P.3d 115 (2003) (upholding stop based upon anonymous tip "stating a vehicle's make, model, style, color, the state of origin of its license plate, highway location, and direction of travel all of which was corroborated by the law enforcement officer before the stop and also stating the conclusory allegation that the vehicle was being driven recklessly, which the officer did not attempt to corroborate before the stop"); United States v. Wheat, 278 F.3d 722 (8th Cir.2001); State v. Walshire, 634 N.W.2d 625 (Iowa 2001) ("Unlike the tip alleged in Whitethat White was carrying narcoticsor in [Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)]that the defendant was carrying narcotics and a gunhere a total stranger could have observed defendant's driving abilities. No intimate or confidential relationship was required to support the accuracy of the observation. The caller simply reported a contemporaneous observation of criminal activity taking place in his line of sight.") (quoting concurring opinion in Boyea (see below), brackets in Walshire); State v. Rutzinski, 241 Wis. 2d 729, 623 N.W.2d 516 (2001); State v. Boyea, 171 Vt. 401, 765 A.2d 862 (2000) (Court's op. and Skogland, J., concurring).
[4] See Sidney v. Commonwealth, 280 Va. 517, 524-25, 702 S.E.2d 124, 129 (2010) (where anonymous informant claimed that vehicle was being driven by person with outstanding warrants, traffic stop to ascertain driver's identity was permissible).
[5] 529 U.S. at 271, 120 S. Ct. 1375 (Court's op.) ("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.").
[6] See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001).