No. 4-05-00241-CR
Delivered and Filed: June 28, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 4, Bexar County, Texas, Trial Court No. 890322, Honorable Sarah Garrahan-Moulder, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
After the trial court denied her motion to suppress, Belinda Kay Essey pleaded no contest to driving while intoxicated. The trial court sentenced her to six months in jail, probated for nine months. Essey argues the trial court abused its discretion in denying her motion because the police officer who stopped her car did not have reasonable suspicion to detain her or probable cause to arrest her. We disagree and therefore affirm the trial court's judgment.
Factual Background
At approximately 12:47 a.m. on June 27, 2004, the Balcones Police Department received a call from a concerned citizen that the driver of a green sports car was driving in an erratic and confused manner in the Super Target parking lot at Crossroads Mall. At that hour, all mall businesses were closed, except for a movie theater that served alcohol and whose last showings ended about then. Responding to the call, Officer Jose C. Sepulveda encountered Essey driving a green Lexus convertible at an entrance to the mall complex. When Essey made a U-turn in front of him, Sepulveda engaged his overhead lights and stopped Essey to determine why she was driving in an erratic and confused manner. Soon thereafter, the concerned citizen, who had been following Essey while remaining on the line with the police dispatcher, passed by Sepulveda, announced to Sepulveda he was the caller, and, after Sepulveda thanked him, drove off. Standard of Review
When, as here, the dispositive facts are uncontroverted and there is no indication the testimony establishing these facts was not believed by the trial court, we review the trial court's order denying a motion to suppress under a de novo standard. State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App. 2000). And when, as here, the trial court does not file findings of fact, we "view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Id. at 855. Discussion
1. Essey first argues that Sepulveda did not have reasonable suspicion to stop her vehicle based upon any articulable fact since neither Sepulveda nor the anonymous caller observed her commit or about to commit a criminal offense. We disagree. It is well-settled that before a police officer is justified in detaining a motorist, the officer must have reasonable suspicion based upon articulable facts that the motorist was operating or was about to operate her vehicle in violation of the law. Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 1172 (2006). However, although these facts must amount to more than a mere suspicion or hunch, they need not be based upon an officer's personal observations; nor must they necessarily concern themselves with criminal activity since under the proper circumstances innocent acts can give rise to reasonable suspicion. Id. at 257, 258-59; Bilyeu v. State, 136 S.W.3d 691, 696 (Tex.App.-Texarkana 2004, no pet.). Nonetheless, information supplied by an anonymous informant alone is seldom enough to establish the requisite factual basis for an investigatory stop. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed.2d 301 (1990). Rather, an anonymous tip must be "suitably corroborated" so as to "exhibit sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed.2d 254 (2000); Pipkin v. State, 114 S.W.3d 649, 654-55 (Tex.App.-Fort Worth 2003, no pet.). Corroboration refers to whether a police officer, in light of the totality of circumstances present, confirms enough facts to reasonably conclude that the information given to him is sufficiently reliable to justify a temporary detention. Pipkin, 114 S.W.3d at 654. Factors to consider in evaluating the reliability of an anonymous tip include whether the informant provides a detailed description of the wrongdoing; whether the informant observed the wrongdoing firsthand; whether the informant places himself in a position to be held accountable for the report; and whether the informant is independent of the police. Id. at 655. The more factors present, the more reliable the tip; the more reliable the tip, the less corroboration is required. Id. at 654. In this case, the concerned citizen's report exhibits a high degree of reliability. First, the record does not disclose any connection between the concerned citizen and the police. Second, the citizen's description of Essey's car was detailed enough to permit Sepulveda to identify it. Third, and more importantly, the citizen observed firsthand the erratic manner in which Essey was driving and continued to follow Essey while remaining on the line with the police. Fourth, and equally important, the citizen placed himself in a position to be identified and held accountable for his report when he personally identified himself to Sepulveda as the caller after Sepulveda had stopped Essey. Because the citizen's report exhibits a high degree of reliability, the level of corroboration required to establish reasonable suspicion is lessened in light of the totality of circumstances present. In this case, the totality of the circumstances present were that Sepulveda, an officer with approximately three years experience and familiar with Crossroads Mall, was responding to a concerned citizen's 911 call informing the police that the driver of a green sports car was driving in an erratic and confused manner in the mall parking lot. At that time of night, the only mall business conceivably open was a movie theater that served alcohol. Upon arriving, Sepulveda encountered the only green car in the immediate area, Essey's green Lexus convertible, and then observed Essey make a U-turn in front of him. Under the totality of circumstances, Sepulveda's observations were sufficient to corroborate the citizen's report and provide reasonable suspicion that Essey was driving in an erratic and confused manner because she was intoxicated. See State v. Fudge, 42 S.W.3d 226 (Tex.App.-Austin 2001, no pet.) (holding that officer, who did not personally observe a motorist commit traffic infractions, was nonetheless justified in detaining the motorist based solely on unsolicited information provided to the officer face-to-face by an unidentified cab driver who had personally observed the motorist "all over the road"); State v. Garcia, 25 S.W.3d 908 (Tex.App.-Houston [14th Dist.], 2000, no pet.) (holding that officer, who did not personally observe teenagers get alcohol from their car, was nonetheless justified in detaining them for investigation based solely on information provided to him by an unidentified male who had observed the activity and adequately described the teenagers); Glover v. State, 870 S.W.2d 198 (Tex.App.-Fort Worth 1994, pet. ref'd) (holding that officer who had not seen motorist drive erratically and stopped him only because of the broadcast message he had received from dispatch was nonetheless justified in detaining the driver). 2. Essey also argues that the concerned citizen's call, standing alone, did not establish probable cause to authorize her warrantless arrest. However, as the State points out, Essey waived this complaint by failing to raise it at the suppression hearing. See State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App. 1998) (holding points not argued at a suppression hearing are deemed waived on appeal). The trial court's judgment is affirmed.