                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00313-CR


ROBERT O'BRYAN                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
                   TRIAL COURT NO. CR-2013-08057-A

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                                  OPINION

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                                I. Introduction

      In two issues, Appellant Robert O’Bryan appeals the denial of his motion to

suppress, arguing that his stop and detention was without reasonable suspicion

and therefore violated the Fourth Amendment to the U.S. Constitution.        We

affirm.
                                 II. Background

      The facts of this case are undisputed. On February 22, 2013, Northlake

Police Sergeant Dwight Thornton ran a routine records check on a green four-

door Pontiac through the National Crime Information Center (NCIC) and the

Texas Crime Information Center (TCIC); a report from Denton Police Department

(Denton P.D.) indicated that the vehicle was reported stolen. After receiving the

report, Sergeant Thornton contacted Denton County Sheriff Department Dispatch

to verify the information.    Dispatch confirmed that the car was stolen, so

Sergeant Thornton requested additional units. Two other units arrived, and the

officers performed a felony stop on the vehicle. O’Bryan was the only person in

the car.

      After he was detained, Sergeant Thornton reported the VIN number of the

vehicle to Denton County Dispatch, who then matched it with their records and

confirmed with Denton P.D. Dispatch that the vehicle was stolen. While waiting

on the confirmation, Sergeant Thornton began investigating the unauthorized use

of a motor vehicle offense. Upon searching the vehicle, he found a pill bottle with

multiple pills inside and no label on the outside.       Upon further inspection,

Sergeant Thornton discovered the pills to be prescription drugs for which

O’Bryan did not have a valid prescription. O’Bryan was arrested and the car was

impounded.

      As it turned out, the car was not stolen.       Although O’Bryan’s father,

Charles O’Bryan, reported the vehicle stolen in August 2012, it was recovered


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one month later, in September 2012. O’Bryan filed a motion to suppress all of

the evidence, arguing, in essence, that since the stolen vehicle information

Sergeant Thornton relied upon was erroneous, the stop was without reasonable

suspicion, thereby violating the Fourth Amendment.

      At the suppression hearing, Sergeant Thornton testified to the facts leading

up to O’Bryan’s arrest, and Denton P.D. Communications Officer Patricia

Killebrew testified about her efforts to confirm the status of the vehicle as stolen.

      Officer Killebrew testified that on February 22, she received a dispatch

requesting confirmation of the stolen vehicle. She ran the plate number through

“the system,” and it confirmed that the car was stolen. She then pulled the actual

paper report, which further verified the car was stolen. The following day, Officer

Killebrew learned from Sergeant Frank Padgett that the information she had

obtained and relayed regarding the stolen vehicle was erroneous.1

      Officer Killebrew also provided testimony about departmental policies

regarding the input and removal of data into NCIC.            She stated that when

Dispatch confirms a vehicle as stolen and the officer recovers it in the field, like in

this case, then Dispatch removes the vehicle from NCIC at the time of




      1
        According to the record, her conversation with Sergeant Padgett was
prompted by a telephone inquiry the Sergeant had received from O’Bryan’s
sister, Lori Reeves, who informed Sergeant Padgett that although the impounded
vehicle had at one time been reported stolen, it had since been recovered.
Sergeant Padgett then followed up on this conversation with Officer Killebrew.


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confirmation.2 In the alternative, if a vehicle is recovered, but there has been no

call for confirmation, then the officer creates a supplemental report that is

forwarded to Dispatch, and Dispatch removes the vehicle from NCIC upon

receipt of the report. In this case, although an officer prepared a supplemental

report when the car was recovered, the NCIC record was not updated.3

      Officer Killebrew testified that the mistake in not removing this vehicle from

NCIC could have occurred in one of two ways. Either the officer never forwarded

the supplemental report to Dispatch, or he did deliver the supplemental report

and Dispatch failed to act on it. Regardless of who made the mistake, Officer

Killebrew confirmed that the error occurred within the Denton P.D.

          The trial court denied O’Bryan’s motion to suppress and entered findings

of fact and conclusions of law.

                                  III. Suppression

      O’Bryan does not dispute that reasonable suspicion existed at the time the

officer entered the stolen vehicle report into NCIC. However, O’Bryan argues

that applying the collective knowledge doctrine, reasonable suspicion ceased to

exist once the vehicle was recovered. Therefore, O’Bryan argues, because



      2
      Officer Killebrew stated that she removed the vehicle from NCIC
immediately after she received Sergeant Thornton’s call for confirmation.
      3
        Nor was the supplemental report included among the documents available
to Officer Killebrew—on the computer or in paper form—in the file she reviewed
to confirm the stolen vehicle.


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reasonable suspicion no longer existed when Sergeant Thornton pulled him over,

O’Bryan’s Fourth Amendment rights were violated.

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.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      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. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim.

App. 2006).    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 818. We must uphold the trial court’s ruling if it is supported

by the record and correct under any theory of law applicable to the case, even if

the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d

736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404

(Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).


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B. Applicable Law

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). 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; see Young v. State, 283 S.W.3d 854, 872 (Tex.

Crim. App.), cert. denied, 558 U.S. 1093 (2009).      A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable. Id. at 672–73; 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 v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law. Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable

suspicion exists when, based on the totality of the circumstances, the officer has


                                        6
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. Ford, 158 S.W.3d at 492. This

is an objective standard that disregards any subjective intent of the officer

making the stop and looks solely to whether an objective basis for the stop

exists. Id.

C. Analysis

      O’Bryan asserts that when assessing whether the detention of O’Bryan

was supported by reasonable suspicion we must consider the “collective

knowledge” of all law enforcement authorities at the time the stop occurred,

including police knowledge that the vehicle had been recovered and returned to

its owner prior to the stop. As will be discussed below, theoretically the collective

knowledge doctrine could be applied either permissively or prohibitively. In this

case, O’Bryan seeks a prohibitive application of the doctrine.

      The collective knowledge doctrine, or the fellow officer rule, is the “principle

that an investigative stop or an arrest is valid even if the law-enforcement officer

lacks personal knowledge to establish reasonable suspicion or probable cause[,]

as long as the officer is acting on the knowledge of another officer and the

collective knowledge of the law-enforcement office.” Black’s Law Dictionary 735

(10th ed. 2014). This doctrine was first discussed by the United States Supreme

Court in 1971 in the context of probable cause to support an arrest, see Whiteley

v. Warden, 401 U.S. 560, 91 S. Ct. 1031 (1971), and was extended by the Court


                                          7
in 1985 to encompass reasonable suspicion to detain a person briefly in an

attempt to obtain further information, see U.S. v. Hensley, 469 U.S. 221, 105 S.

Ct. 675 (1985).    Both Whiteley and Hensley apply the collective knowledge

doctrine in a permissive manner. The Texas Court of Criminal Appeals has also

applied this doctrine, but only permissively as well. See Hoag v. State, 728

S.W.2d 375, 380 (Tex. Crim. App. 1987); Woodward v. State, 668 S.W.2d 337,

344 (Tex. Crim. App. 1982) (op. on reh’g).

      O’Bryan points out that while the collective knowledge doctrine has been

applied only permissively in Texas, other jurisdictions also apply the doctrine

prohibitively:

             The “fellow officer” or “collective knowledge” rule cannot
      function solely permissively, to validate conduct otherwise
      unwarranted; the rule also operates prohibitively, by imposing on law
      enforcement the responsibility to disseminate only accurate
      information.

People v. Ramirez, 668 P.2d 761, 765 (Cal. 1986). In urging this court to permit

a prohibitive application of the doctrine in this case, O’Bryan essentially argues

that if collective knowledge can be used to form a basis to find reasonable

suspicion, then collective knowledge can also be used to negate reasonable

suspicion.

      While four states4 have extended the collective knowledge doctrine to

apply prohibitively, Texas is not one of them.


      4
       California, Maryland, New York, and Washington


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      Whether as a repository for collective knowledge or as an historically

trustworthy source of information, NCIC—and its records—has received

widespread acceptance as providing a sufficient basis for both probable cause

and reasonable suspicion. See Delk v. State, 855 S.W.2d 700, 711 (Tex. Crim.

App.), cert. denied, 510 U.S. 982 (1993) (holding that information obtained from

the NCIC system provides an investigating officer with reasonable suspicion to

detain a driver and conduct further investigation); Stevens v. State, 667 S.W.2d

534, 538 (Tex. Crim. App. 1984) (holding that the NCIC stolen-vehicle return

provided independent probable cause to arrest appellant for theft of the

automobile); see also Williams v. State, No. 14-08-00268-CR, 2009 WL

3643513, at *4 (Tex. App.—Houston [14th Dist.] Nov. 5, 2009, pet. ref’d) (mem.

op., not designated for publication) (holding that NCIC provided reasonable

suspicion to stop appellant who was driving a vehicle that was reported stolen);

Nevels v. State, No. 14-13-00497-CR, 2004 WL 769804, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 13, 2004, no pet.) (mem. op., not designated for

publication) (holding that an NCIC report that a car was stolen is sufficient to

support probable cause); Nunnally v. State, No. 11-03-00237-CR, 2004 WL

292051, at *2 (Tex. App.—Eastland Feb. 12, 2004, pet. ref’d) (opinion, not

designated for publication) (noting that the officer had probable cause to arrest

the appellant based on computer information he received); Givens v. State, 949

S.W.2d 449, 452 (Tex. App.—Fort Worth 1997, pet. ref’d) (recognizing that the

officer’s reliance on NCIC provided probable cause for the arrest).


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      And while no Texas courts have directly addressed the prohibitive

application of the collective knowledge doctrine when considering reasonable

suspicion or probable cause, in considering NCIC information as a basis for

probable cause and reasonable suspicion, they have addressed the possibility of

error and its effect on these burdens. See Brown v. State, 986 S.W.2d 50, 54

(Tex. App.—Dallas 1999, no pet.) (holding that “it is not necessary for the NCIC

database of stolen vehicles to be accurate on every occasion for an NCIC hit to

establish probable cause,” and an officer may rely on the information even if it is

later proved to be erroneous); see also Thornton v. State, No. 10-12-00431-CR,

2014 WL 813745, at *2 (Tex. App.—Waco Feb. 27, 2014, no pet.) (mem. op., not

designated for publication) (holding actual ownership of a vehicle was not

relevant to the detention of the appellant because the officer had reasonable

suspicion to detain appellant based on NCIC information, even if it was later

proven to be incorrect), Cardiel v. State, No. 03-11-00220-CR, 2012 WL

2077908, at *1 n.1 (Tex. App.—Austin, June 7, 2012, no pet.) (mem. op., not

designated for publication) (explaining that even though appellant’s stop was

based on a stolen vehicle report that turned out to be incorrect, the fact the report

was mistaken did not render the stop or arrest invalid); Mount v. State, 217

S.W.3d 716, 728 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (op. on reh’g)

(“An investigatory detention or an arrest is not invalid merely because an officer

relies upon reasonably trustworthy information that later proves to be




                                         10
erroneous.”); Givens, 949 S.W.2d at 451 (holding that extrinsic proof of NCIC

accuracy is not required to overcome a motion to suppress).

       In Brown v. State, the Fifth Court of Appeals states that

       [I]t is well established an arrest is not invalid merely because an
       officer relies on reasonably trustworthy information which later
       proves to be erroneous. Therefore, it is not necessary for the NCIC
       database of stolen vehicles to be accurate on every occasion for an
       NCIC hit to establish probable cause. On the basis of the current
       record, we have no reason to question whether stolen vehicle
       information obtained from the NCIC is reasonably trustworthy.
       Accordingly, we conclude the NCIC information available to the
       officers here established probable cause for the warrantless arrest.

986 S.W.2d at 53–54 (internal citations omitted).

       For the reasons stated above, we hold that the NCIC report was sufficient

to establish reasonable suspicion and therefore conclude that O’Bryan’s

constitutional rights were not violated by his warrantless arrest. We overrule his

first issue.5

                                  IV. Conclusion

       Having overruled O’Bryan’s dispositive issue, we affirm the trial court’s

judgment.


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE


       5
       Having overruled O’Bryan’s first issue, we need not reach his second
issue. See Tex. R. App. P. 47.1.




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PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: May 28, 2015




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