COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-117-CR
MARK DERICHSWEILER APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
OPINION
I. INTRODUCTION
The primary issue we address in this appeal is whether the trial court
erred by denying Appellant Mark Derichsweiler’s motion to suppress. Because,
as set forth below, police lacked reasonable suspicion to stop Derichsweiler, we
hold that the trial court did err by denying Derichsweiler’s motion to suppress.
Accordingly, we will reverse the trial court’s judgment and remand this case to
the trial court. II. F ACTUAL AND P ROCEDURAL B ACKGROUND
A grand jury indicted Derichsweiler for driving while intoxicated. The
indictment alleged two prior DWI convictions and two enhancement
convictions.
Derichsweiler filed a motion to suppress all evidence arising from his initial
stop, arguing that the arresting officer lacked reasonable suspicion to justify the
stop. Three witnesses testified at the suppression hearing: Joe Holden,
Joanna Holden, and Lewisville Police Officer Wardel Carraby.
Joe testified that at approximately 8:00 on the evening of December 31,
2006, he and Joanna ordered food from a McDonald’s restaurant drive-through;
Joanna was driving. While they waited for their food, Joanna said, “I don’t
know what’s wrong with the guy in the car beside us,” but Joe could not see
the vehicle or the driver. The same vehicle then pulled up in front of the
Holdens’ car, and the vehicle’s driver—Derichsweiler—stared at them, grinning,
for about fifteen seconds. Derichsweiler then drove around the McDonald’s
building and stopped behind and to the left of the Holdens’ car. Again,
Derichsweiler stared and grinned at the Holdens for fifteen to twenty seconds.
The Holdens became “extremely concerned”; they did not know the driver’s
motive, whether he “was out to get us or if there was a robbery in progress.”
Joe called 911. He identified himself to the operator, told the operator that
2 “there was some suspicious behavior with the vehicle,” described the vehicle,
and recited its license number.
Meanwhile, Derichsweiler drove to the adjacent Wal-Mart parking lot,
where he appeared to be “doing the same thing with another vehicle that was
parked.” Joe lost track of Derichsweiler’s vehicle, and then patrol cars arrived
“from everywhere.” Before Joe and Joanna left the scene, a police officer
spoke to them; they provided the officer with their contact information. On
cross-examination, Joe conceded that he did not see Derichsweiler commit any
crimes or make any threatening gestures.
Joanna testified that Derichsweiler’s conduct, “[j]ust kind of grinning and
just being stopped beside us while we’re stopped at a drive-through and looking
straight at us[,] just didn’t seem normal” to her. When Derichsweiler stopped
behind the Holdens, Joanna became afraid and told Joe to call 911. She
testified that she watched Derichsweiler drive to the Wal-Mart parking lot:
“He’s pulling into parking spots and staying there for about the same amount
of time that he was observing us, and then pulling out and moving into different
parking spots, and kind of closer to the door.” Joanna also testified that she
did not see Derichsweiler commit any crimes and that the only gesture she saw
him make was grinning. Nonetheless, she claimed that she “felt stalked.”
3 Officer Carraby, who had about one year’s experience as a peace officer
at the time of the incident, testified that he received a dispatch concerning a
suspicious vehicle. The dispatcher gave him the vehicle’s description and
license number and identified Joe Holden as the person who had reported the
vehicle. Officer Carraby and another officer in a different patrol car responded
to the dispatch and drove to the Wal-Mart parking lot. Officer Carraby saw
Derichsweiler’s vehicle driving around the Wal-Mart parking lot and pulling into
a parking spot in the Wal-Mart lot. Officer Carraby and the other officer pulled
up behind Derichsweiler’s vehicle, another officer drove up in a third patrol car,
and the three vehicles “surrounded” Derichsweiler’s vehicle, blocking it in.
Officer Carraby testified that, at that point, Derichsweiler could not have driven
away if he had wanted to and that Officer Carraby would not have let
Derichsweiler leave until he could talk to Derichsweiler to find out what was
going on.
Officer Carraby got out and approached Derichsweiler’s vehicle. When
Derichsweiler rolled down his window, Officer Carraby smelled a strong odor
of alcoholic beverages coming from the vehicle, and he began to investigate the
case as a DWI.
The trial court denied Derichsweiler’s motion to suppress. After trial, the
trial court made findings of fact and conclusions of law regarding
4 Derichsweiler’s stop, concluding that Officer Carraby had reasonable suspicion
to detain Derichsweiler “to investigate his suspicious behavior and possible
involvement in criminal activity” and that the case was “almost on point” with
Bobo v. State, 843 S.W.2d 572, 575 (Tex. Crim. App. 1992).
The case was tried to a jury. Both Joe and Joanna testified at trial, and
their testimony was essentially identical to their testimony at the suppression
hearing. Officer Carraby’s testimony was also consistent with his suppression-
hearing testimony, but he added that he parked his patrol car “in such a manner
to block [Derichsweiler’s] vehicle in.” He testified that Derichsweiler was not
free to leave.
The jury found Derichsweiler guilty of DWI, found the sentencing
enhancement allegations to be true, and assessed punishment at forty-seven
years in prison. The trial court sentenced him accordingly.
III. R EASONABLE S USPICION FOR S TOP
In his first point, Derichsweiler argues that the trial court erred by denying
his motion to suppress because Officer Carraby lacked reasonable suspicion to
stop him.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
5 Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
6 Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 819.
When determining whether a trial court’s decision is supported by the
record, we generally consider only evidence adduced at the suppression hearing
because the ruling was based on it rather than evidence introduced later. See
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v.
State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043
(1996). But this general rule is inapplicable when the parties consensually
relitigated the suppression issue during trial on the merits. Gutierrez, 221
S.W.3d at 687; Rachal, 917 S.W.2d at 799; Beall v. State, 237 S.W.3d 841,
846 (Tex. App.—Fort Worth 2007, no pet.). If the State raised the issue at trial
either without objection or with subsequent participation in the inquiry by the
defense, the defendant is deemed to have elected to re-open the evidence, and
7 we may consider the relevant trial testimony in our review. Rachal, 917
S.W.2d at 799.
B. The Law of Detentions and Terry Stops 1
The Fourth Amendment protects against unreasonable searches and
seizures. U.S. Const. amend. IV.; Wiede, 214 S.W.3d at 24. To suppress
evidence because of an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of
proper police conduct. Amador, 221 S.W.3d at 672. A defendant satisfies this
burden by establishing that a search or seizure occurred without a warrant. Id.
Once the defendant has made this showing, the burden of proof shifts to the
State, which must then establish that the government agent conducted the
search or seizure pursuant to a warrant or that the agent acted reasonably. Id.;
Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry, 392 U.S. at 22, 88 S. Ct. at 1880;
1 We utilize the terms “stop” and “detention” or “investigative detention” jointly and interchangeably herein. See Terry v. Ohio, 392 U.S. 1, 10, 88 S. Ct. 1868, 1874 (1968).
8 Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer
conducts a lawful temporary stop or detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d
at 492. Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that when combined
with rational inferences from those facts, would lead him to reasonably
conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Id. at 492–93. This is an objective standard that disregards
any subjective intent of the officer making the detention and looks solely to
whether an objective basis for the detention exists. Id. at 492. We look at
only those facts known to the officer at the inception of the detention. State
v. Griffey, 241 S.W.3d 700, 704 (Tex. App.—Austin 2007, pet. ref’d).
“The factual basis for stopping a vehicle need not arise from the officer’s
personal observation, but may be supplied by information acquired from another
person.” Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005),
cert. denied, 546 U.S. 1150 (2006); see Bobo, 843 S.W.2d at 575. Reasonable
suspicion may be established based on information given to police officers by
citizen informants, provided the facts are adequately corroborated by the
officer. Brother, 166 S.W.3d at 258–59. Corroboration does not mean that
the officer must personally observe the conduct giving rise to reasonable
9 suspicion, but simply requires the officer to confirm enough facts to reasonably
conclude that the informant’s information is reliable. Id. at 259 n.5; see also
Alabama v. White, 496 U.S. 325, 330–31, 110 S. Ct. 2412, 2416–17 (1990).
C. Officer Carraby Lacked Reasonable Suspicion
Before turning to the question of whether Officer Carraby had reasonable
suspicion to stop Derichsweiler, we must consider the State’s argument that
Derichsweiler was not “detained” when the officers surrounded his vehicle with
their patrol cars, blocking him from leaving. The State argues that no stop or
detention occurred until after Officer Carraby approached Derichsweiler’s
vehicle and detected the odor of alcoholic beverages emanating from the
vehicle. The State cites State v. Garcia-Cantu, 253 S.W.3d 236, 244–49 (Tex.
Crim. App. 2008), and that case’s list of factors that help determine whether
a stop occurred. One of the Garcia-Cantu factors is whether the police officer
“boxed in” the suspect’s vehicle. Id. at 246. The State concedes that Officer
Carraby parked his patrol car in a way that blocked Derichsweiler’s vehicle, but
it argues that a reasonable person would not conclude from this fact that he
was being detained and that “[f]ar more likely, a reasonable and innocent
person would believe something else was going on at the location.” But at the
suppression hearing, Officer Carraby testified that his and two other patrol cars
“surrounded” Derichsweiler’s vehicle and that Derichsweiler could not have left
10 if he had wanted. And at trial, Officer Carraby testified that he blocked
Derichsweiler’s vehicle from leaving and that Derichsweiler, in fact, was not
free to leave.2 Joe testified at the suppression hearing that after he lost sight
of Derichsweiler’s vehicle, the next thing he saw was “[p]olice cars [coming]
from everywhere,” and Joanna testified that she saw three patrol cars
“swooping in” from all angles and parking all around Derichsweiler’s vehicle
such that he could not move.
When that testimony is added to the analysis, it seems impossible for a
reasonable person to conclude that he was not being detained. And as the
Garcia-Cantu court noted, “boxing in” is a significant factor in determining
whether a detention occurred; “[m]ost courts have held that when an officer
‘boxes in’ a car to prevent its voluntary departure, this conduct constitutes a
Fourth Amendment seizure.” Id. n.44 (collecting cases). We therefore reject
the State’s argument that Officer Carraby did not stop or detain Derichsweiler
until after the officer smelled the odor of alcoholic beverages emanating from
Derichsweiler’s vehicle. We now turn to the merits of Derichsweiler’s
argument.
2 We may consider both the suppression-hearing and trial testimony because Derichsweiler raised the suppression issue before the jury, beginning with his opening statement and continuing with his cross-examination of Officer Carraby. See Rachal, 917 S.W.2d at 799.
11 A proper analysis begins by looking at only those facts known to Officer
Carraby at the inception of his detention of Derichsweiler. Officer Carraby
knew that a citizen informant had reported that a suspicious male in a small
gray car with license plate number 971-MPM was driving or circling around the
public parking lot of McDonald’s and Wal-Mart at 8:00 one evening. 3 At the
suppression hearing, Officer Carraby explained that when he responded to the
dispatch, he did not know what specific activity gave rise to the 911 caller’s
suspicion. He said that other than the fact that the vehicle was circling the
parking lot, he did not receive any other information that the driver was
committing any “other criminal activity.” Officer Carraby explained that, based
on his training and experience, he believed that “there was possible criminal
3 At the suppression hearing, Officer Carraby testified about the call he received from dispatch:
I don’t remember from memory, but based on the document that I’m reading, it was a suspicious subject phone call. The witness advised that they saw a small gray car. They gave the license plate number as Texas license plate number . . . 971 MPM, circling the parking lot of Wal-Mart and McDonald’s. The complainant thought that the vehicle was suspicious and wanted us to check it out.
Officer Carraby’s testimony during trial was consistent with his testimony at the suppression hearing regarding the dispatch call. He explained at trial that dispatch told him that “[t]here was a suspicious male driving around in a small gray car with a license plate of 971-MPM, driving around the parking lot of McDonald’s and Wal-Mart.”
12 activity afoot” because “it’s not normal for vehicles to drive around the parking
lot at 8:00 o’clock at night.” Joe could not recall how he explained to the 911
operator what the vehicle had been doing and said that “[i]t was a pretty quick
phone call.”
This is the sum total of the information known to Officer Carraby—both
from dispatch and from the officer’s independent observations—when the
officers detained Derichsweiler by “blocking in” his vehicle with three police
vehicles. No evidence exists in the record that any cooperating officer knew
any additional facts other than those testified to by the Holdens and Officer
Carraby. See State v. Jennings, 958 S.W.2d 930, 933 (Tex. App.—Amarillo
1997, no pet.) (noting that a reviewing court “must proceed cautiously when
it appears that the detaining officer acted upon nothing other than a radio
dispatch”); cf. Fearance v. State, 771 S.W.2d 486, 509 (Tex. Crim. App.
1988), cert. denied, 492 U.S. 927, 109 S. Ct. 3266 (1989) (stating that trial
court could rely on the sum of the information known to the cooperating
officers at the time of the incident).
The trial court relied upon Bobo v. State in its findings of fact, concluding
that the factual situation in Bobo is “almost on point with the case at bar.” See
843 S.W.2d 574–75. In Bobo, an off-duty police officer acting as a townhome
complex security guard was notified that a resident of a townhome complex
13 “had observed two suspicious persons in an area where they should not be.”
Id. at 575 [emphasis added]. The court of criminal appeals held that the
citizen’s report of suspicious persons around several townhomes, the
observation of two individuals matching the descriptions provided by the
citizen, and the officer’s fifteen years’ experience provided the officer with
reasonable, articulable suspicion that the individuals were connected with
criminal activity. Id.
The salient difference between the facts in Bobo and the present facts is
that in Bobo, the townhouse security guard—an off-duty police officer with
fifteen years’ law enforcement experience—was notified that a townhome
resident reported “suspicious persons” in an area of the townhome complex
“where they should not be.” See id. [emphasis added] Consequently, in Bobo,
the officer—while he was on duty as the townhome security guard—obtained
information from a townhome resident that gave rise to reasonable, articulable
suspicion that the two suspicious individuals were connected with criminal
activity, i.e., criminal trespass. See Tex. Penal Code Ann. § 30.05 (Vernon
Supp. 2009). But here, Officer Carraby—a police officer with only one year of
law enforcement experience—was notified by dispatch only that a vehicle,
deemed suspicious by the caller for a reason unknown to Officer Carraby, was
circling two public parking lots at 8:00 p.m., an act which does not constitute
14 criminal behavior. 4 See Griffey, 241 S.W.3d at 705 (holding that officer lacked
reasonable suspicion based on Whataburger manager’s report that individual
was passed out behind wheel in drive-through line, “which does not constitute
criminal behavior”). The suspicious persons in Bobo were reported by a
resident of the townhome complex to be “milling around some [of the]
townhouses,” and the court noted the suspicious persons were in an area
“where they should not be”; the suspected criminal trespass by the suspicious
persons in Bobo is conduct inherently more suspicious than Derichsweiler’s
conduct circling and parking in public parking lots at 8:00 at night. See Bobo,
843 S.W.2d at 573.
Thus, unlike in Bobo, this is not a case in which the officer received
information that a citizen informant witnessed criminal behavior. Compare
Bobo, 843 S.W.2d at 575 (townhome resident described two suspicious
persons in an area where they should not be); Brother, 166 S.W.3d at 258
(citizen described defendant’s car and location, as well as his erratic driving);
4 The dissent argues that “it is unlikely” that Wal-Mart was open that night because it was 8:00 p.m. on New Year’s Eve. The record demonstrates that McDonald’s was open for business that night and that the Wal-Mart parking lot had several vehicles parked in it because Derichsweiler was reportedly pulling up next to other vehicles in the Wal-Mart lot. Apparently, Wal-Mart was open for business or just closing. In any event, the evidence establishes that the parking lots was public places.
15 Pipkin v. State, 114 S.W.3d 649, 654 (Tex. App.—Fort Worth 2003, no pet.)
(citizen described defendant driving under speed limit and smoking a crack
pipe); State v. Stolte, 991 S.W.2d 336, 341 (Tex. App.—Fort Worth 1999, no
pet.) (unidentified citizen caller described erratic driving and identified car and
location), with Griffey, 241 S.W.3d at 705 (citizen informant reported that
individual was passed out behind wheel in drive-through line). Although the
possibility of an innocent explanation for Derichsweiler’s actions did not deprive
Officer Carraby of the ability to reasonably suspect criminal conduct, the State
bore the burden to show that the officer had reasonable suspicion that
Derichsweiler was violating the law. See Castro v. State, 227 S.W.3d 737,
741 (Tex. Crim. App. 2007); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.
App. 1997). The testimony of Officer Carraby that driving around the public
parking lots of two businesses at 8:00 p.m. is not normal behavior cannot,
without more, support his reasonable-suspicion determination.
Even considering as part of the totality of the circumstances the
information that was not relayed to Officer Carraby before Derichsweiler’s
detention but that was presented at trial—that Derichsweiler drove up beside
the Holdens, grinned at them for about fifteen seconds, drove around the
McDonald’s, stopped behind them, and grinned again for fifteen to twenty
seconds—these additional facts do not cause the facts known by Officer
16 Carraby and the rational inferences from those facts to rise to the level of
specific, articulable facts that Derichsweiler was connected with criminal
activity. See Ford, 158 S.W.3d at 492–93. The Holdens testified that the only
gesture Derichsweiler made toward them was a grin, that nothing Derichsweiler
did could be described as criminal activity, that he made no obscene or
threatening gestures, and that he was not driving erratically.
The trial court made a finding of fact that “[a]lthough no testimony was
provided concerning the historic crime rate at the scene, it is within the realm
of general knowledge of a police officer that parking lots are locations where
break ins and thefts occur.” This finding of fact is not supported by the record;
Officer Carraby testified only that driving around a parking lot at 8:00 at night
is not normal behavior; he did not testify as to what crime he thought
Derichsweiler might be committing. Because this finding is not supported by
the record it is entitled to no deference. See, e.g., Garcia v. State, 919 S.W.2d
370, 379 (Tex. Crim. App. 1994) (refusing to defer to trial court’s finding not
supported by record on suppression issue). And this is not the type of fact
subject to judicial notice. See Tex. R. Evid. 201 (providing that a judicially
noticed fact must be one not subject to reasonable dispute). Finally, even
taking this finding of fact as true and giving it deference, it provides no
additional specific, articulable facts concerning Derichsweiler’s conduct. The
17 finding is not limited in location, time, or conduct. Under this finding,
reasonable suspicion exists to stop any and all vehicles circling any and all
public parking lots at any and all times.
Officer Carraby could have waited until Derichsweiler exited his vehicle
to approach him and initiate a consensual encounter to determine if additional
information existed to corroborate the Holdens’ call. But, instead, Officer
Carraby and two other officers initiated an investigative detention by “blocking
in” Derichsweiler’s vehicle with their patrol cars, preventing Derichsweiler from
leaving the parking spot where he had parked.
Because, based on the totality of the circumstances, the information that
Officer Carraby received from dispatch, coupled with his law enforcement
experience, independent observations, and the rational inferences from all of the
information, did not rise to the level of specific and articulable facts that
Derichsweiler was connected with criminal activity, we sustain Derichsweiler’s
first point. See Ford, 158 S.W.3d at 492–93.
18 IV. C ONCLUSION
Having sustained Derichsweiler’s first point, we need not address his
remaining points. See Tex. R. App. P. 47.1. We reverse the trial court’s
judgment and remand this case to the trial court for further proceedings
consistent with this opinion.
SUE WALKER JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
GARDNER, J. filed a dissenting opinion.
PUBLISH
DELIVERED: November 25, 2009
19 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DISSENTING OPINION
I respectfully dissent. The totality of the circumstances, including Officer
Carraby’s training and experience, the locality, the date, the time of evening,
the information conveyed to him by dispatch, and his independent observations
established reasonable suspicion for Appellant’s detention for further
investigation. It was dark at 8:00 p.m. on New Year’s Eve when Joe and
Joanna Holden ordered food from the McDonald’s restaurant drive-through.
The third time Appellant parked close to them, Joe felt intimidated and uncomfortable. At Joanna’s insistence, Joe called 911. He identified himself
to the 911 operator, described the vehicle, and recited its license number. Joe
did not remember exactly what else he told dispatch but “basically there was
some suspicious behavior with the vehicle. And, you know, kind [sic] what they
had done.” Meanwhile, Appellant drove to the adjacent Wal-Mart parking lot,
where Joanna observed Appellant “pulling into parking spots and staying there
for about the same amount of time that he was observing us, and then pulling
out and moving into different parking spots, and kind of closer to the door.”
Joe lost track of the vehicle, and then police cars arrived “from everywhere.”
Before Joe and Joanna left the scene, a police officer spoke to them, and they
gave him their contact information. On cross-examination, Joe conceded that
he did not see Appellant commit a crime or make threatening gestures toward
Joe and Joanna but described his behavior as “intimidating.”
Officer Carraby was a certified peace officer with training and about one
year of experience as a Lewisville police officer at the time of the incident. He
testified that he was familiar with the area where the McDonald’s and Wal-Mart
were located because it was his regular area of patrol. It was common, Officer
Carraby said, for him to receive dispatches about suspicious vehicles or
persons. He received the dispatch concerning a suspicious vehicle “circling”
the Wal-Mart parking lot. The dispatcher gave him the vehicle’s description and
2 license number and identified Joe Holden as the citizen who had reported the
vehicle. Officer Carraby and another officer in a different patrol car responded
to the dispatch and drove to the Wal-Mart parking lot. Officer Carraby located
and personally observed Appellant’s vehicle still driving around and parking in
the Wal-Mart lot.
Officer Carraby testified that dispatch “advised that the complainant
caller, Joe Holden, stated that the vehicle was circling the parking lot, and he
believed it to be suspicious.” Officer Carraby further testified that, based upon
his training and experience and what he had been taught at the academy and
in field training, it is “not normal” for vehicles to drive around parking lots at
night. He identified the vehicle based on the license plate, make, and model of
the car provided by the Holdens; observed the vehicle being driven around the
parking lot; and detained the vehicle based upon the information dispatch gave
him and his belief that “there was possible criminal activity afoot.”
The trial court denied Appellant’s motion to suppress. After trial, the trial
court made findings of fact and conclusions of law regarding Appellant’s
detention, concluding that Officer Carraby “clearly had reasonable suspicion to
detain the Defendant to investigate his suspicious behavior and possible
involvement in criminal activity” and that the case was “almost on point” with
3 The majority opinion disagrees with the trial court’s reliance upon Bobo,
reasoning that the officer in that case received information that a citizen
informant had observed “criminal behavior.” The majority distinguishes Bobo
from the case before us on the ground that the vehicle here was deemed
suspicious merely because it was circling a parking lot, which is not criminal
behavior. Maj. Op. at p. 15. I disagree that this is a valid distinction.
It is well-settled that reasonable suspicion exists when, based on the
totality of the circumstances, the officer has specific, articulable facts that
when combined with rational inferences that may be drawn from those facts,
would lead him to reasonably conclude that a particular person is, has been, or
soon will be engaged in criminal activity. Curtis v. State, 238 S.W.3d 376,
380-81 (Tex. Crim. App. 2007) (citing Woods v. State, 956 S.W.2d 33, 38
(Tex. Crim. App. 1997). When a detention is based upon conduct by the
suspect, that conduct need not itself be unlawful or in some sense inconsistent
with innocence. Woods, 956 S.W.2d at 38 (paraphrasing U.S. v. Sokolow,
490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989)).
“[I]nnocent behavior will frequently provide the basis for a showing of
probable cause.” Id. at 38. Where innocent behavior is the basis for a
determination of reasonable suspicion, the relevant inquiry “is not whether
particular conduct is innocent or criminal, but the degree of suspicion that
4 attaches to particular types of noncriminal acts.” Id. at 38. The
reasonableness of the suspicion must be determined by the “totality of the
circumstances.” Sokolow, 490 U.S. at 8, 109 S. Ct. at 1585–86; see
Vafaiyan v. State, 279 S.W.3d 374, 379–80 (Tex. App.—Fort Worth 2008,
pet. ref’d) (holding purchases of small amounts of cold medicine containing
Sudafed formed sufficient basis for reasonable suspicion in light of totality of
circumstances).
Additionally, contrary to the majority opinion’s characterization of Bobo’s
holding, the court of criminal appeals never said in that case that the two
suspicious persons milling around the townhouses were engaged in criminal
activity. The most that the opinion in Bobo says is that they were observed “in
an area where they should not be.” Bobo, 843 S.W.2d at 575. Moreover, the
court in Bobo did not hold that reasonable suspicion for temporary detention
was created by the report of that conduct. Instead, the court of criminal
appeals looked to all of the surrounding circumstances and held that the
officer’s fifteen years of law enforcement experience, seeing the individuals
leaving the area who matched the descriptions of the suspicious persons, as
well as the report of the citizen identifying them as suspicious persons around
several homes, and the observation of appellant—who matched the description
in the report, provided the officer with a reasonable, articulable basis to
5 conclude that further investigation was necessary. Id.; Kendrick v. State, 93
S.W.3d 230, 237 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (relevant
inquiry not whether conduct is criminal or civil but the degree of suspicion that
attaches to particular types of noncriminal acts); Sargent v. State, 56 S.W.3d
720, 724 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (multiple calls
from pay phone, innocent standing alone, justified detention where coupled
with visits to trailer known for heroin sales and failure to identify ); Jackson v.
State, No. 05-99-00361-CR, 2001 WL 8867, at *3 (Tex. App.—Dallas 2001,
no pet.) (gesture as if to hide something in defendant’s pants, although
seemingly innocent, sufficient to justify detention coupled with initial attempt
to leave scene and experience of officer, citing Bobo, 843 S.W.2d at 575).
A citizen’s suspicious person report can be enough to support an officer’s
reasonable suspicion for a detention, provided the facts are adequately
corroborated by the officer. 1 Brother v. State, 166 S.W.3d 255, 258–59 (Tex.
1 There is no issue here as to anonymity of the tipster as in State v. Jennings, 958 S.W.2d 930, 933–34 (Tex. App.—Amarillo 1997, no pet.), cited by the majority. Nor is there any question whether the facts were adequately corroborated. The caller relayed to the dispatcher the suspicious vehicle’s movements in the parking lot, provided the make, model, and license number of the vehicle, and made himself accountable by providing his identity and contact information and remaining at the scene until the officers arrived. See Brother, 166 S.W.3d at 259; Pipkin v. State, 114 S.W.3d 649, 654 (Tex. App.—Fort Worth 2003, no pet.).
6 Crim. App. 2005). Information from a citizen who has actually witnessed a
criminal event is considered inherently reliable and will support a temporary
detention if sufficiently corroborated. Hime v. State, 998 S.W.2d 893, 895
(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). The informant’s willingness
to be held accountable further enhances his reliability. Id; Reesing v. State,
140 S.W.3d 732, 736 (Tex. App.—Austin 2004, pet. ref’d). But citizen-
informant tips of behavior that is merely suspicious and consistent with criminal
activity may also be used to establish reasonable suspicion for a temporary
detention. Bobo, 843 S.W.2d at 575 (report by citizen sufficient that identified
suspicious persons around several homes where they should not be, leaving in
an automobile, and officer’s fifteen years’ experience); State v. Fudge, 42
S.W.3d 226, 230 (Tex. App.—Austin 2001, pet. ref’d) (upholding stop based
on face-to-face report pointing out driver of vehicle and stating that he “could
not stay on the road”); see also Soto v. State, No. 09-07-00336-CR, 2008 WL
4936844, at *2 (Tex. App.—Beaumont Nov. 12, 2008, no pet.) (mem. op., not
designated for publication) (911 call reporting unidentified vehicle parked in
driveway, although caller did not know what driver was doing, what he
intended, or what he had done, reasonably supported investigative stop); Santa
Cruz v. State, No. 04-01-00762-CR, 2002 WL 31465799, at *1–2 (Tex.
App.—San Antonio Nov. 6, 2002, no pet.) (not designated for publication)
7 (holding officer had reasonable suspicion to stop defendant based on call about
a “suspicious vehicle” matching defendant’s vehicle and statement from
unknown woman who appeared frightened, that “the car he was looking for
was behind him”).
The majority cites State v. Griffey, 241 S.W.3d 700, 704 (Tex.
App.—Austin 2007, pet. ref’d), as holding that an officer lacked reasonable
suspicion based upon a restaurant manager’s report that a woman was passed
out behind the wheel in the drive-through line, “which does not constitute
criminal behavior.” Maj. Op. at p.14–15 (quoting from Griffey, 241 S.W.3d at
705). However, that the conduct described in the report was not criminal was
not the basis for the court’s holding that the officer lacked reasonable
suspicion. Instead, the Austin court of appeals concluded that the report,
standing alone, was insufficient to establish reasonable suspicion because there
was no corroboration of it and, instead, the responding officer found the
woman awake, directly contradicting the information in the report. 2 Griffey,
2 The court in Griffey cited Cornejo v. State, 917 S.W.2d 480 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) as an example of the most reliable form of citizen-informant tip, information given by victims of a drive-by shooting that gang members had fired at them. Griffey, 241 S.W.3d at 704–05. But the information in Cornejo was not given as a citizen-informant tip; rather, it was given as statements by the victims after the police arrived on the scene; and the issue was not reasonable suspicion to detain the alleged driver-shooter but probable cause for a warrantless arrest. Cornejo, 917 S.W.2d at 483.
8 241 S.W.3d at 704. Unlike the report in Griffey, the information provided by
the dispatcher here was consistent with, corroborated, and confirmed by what
Officer Carraby observed upon his arrival at the scene—Appellant was still
driving around the Wal-Mart parking lot and the license plate, make, and model
of the vehicle matched the description given by Joe Holden.
I agree with the trial court that Bobo is on point, and that case supports
the trial court’s reasonable suspicion determination in this case. Joe Holden’s
911 call about Appellant’s “suspicious” behavior in driving or circling around
the parking lot is like the “suspicious persons” call in Bobo about the individuals
milling around the townhouses. 3 See Bobo, 843 S.W.2d at 573. As in Bobo,
Officer Carraby was able to identify Appellant’s vehicle based on the
information provided by the citizen-informant. See id. In addition, upon his
arrival at the scene, Officer Carraby independently observed the exact behavior
by Appellant that had been reported by Holden, circling the Wal-Mart parking
lot, which in Officer Carraby’s experience was not normal. And this behavior
was occurring around 8:00 p.m., after dark on New Year’s Eve, a night when
Neither Griffey nor Cornejo stands for the proposition that citizen-informant tips will only support reasonable suspicion for detention if the conduct they report is criminal activity. 3 There is no evidence in the record that the Wal-Mart and adjacent Sam’s Club were open for business at 8:00 p.m. on that New Year’s eve.
9 it is unlikely that the stores remained open for business but not unlikely that a
driver might have consumed an excessive amount of alcohol. The only salient
difference between the detention in Bobo and the one in this case is that the
detaining officer in Bobo had fifteen years’ experience—a factor cited by the
court of criminal appeals—and Officer Carraby had just one year of experience.
See id. at 575. I cannot see how the difference in the officers’ experience
compels a different outcome, particularly in light of the fact that this Wal-Mart
parking lot was part of Officer Carraby’s regular patrol, and the officer in each
case testified that his law-enforcement experience played a role in forming his
suspicion that crime was afoot.
Viewing the evidence in the light most favorable to the trial court’s ruling,
I would hold that, examining the totality of the circumstances, Officer Carraby
had specific articulable facts, which taken together with the rational inferences
that could be drawn from those facts, provided reasonable suspicion that
Appellant was, had been, or soon would be, engaged in criminal activity, to-wit:
driving while under the influence of alcohol. I would hold that the trial court did
not err by concluding that Officer Carraby had reasonable suspicion to justify
Appellant’s detention and by overruling the motion to suppress, and would
proceed to consider Appellant’s remaining points. Because the majority holds
otherwise, I dissent.
ANNE GARDNER JUSTICE
10 PUBLISH