                                                                         ACCEPTED
                                                                     03-15-00221-CR
                                                                             5544994
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                6/4/2015 12:17:36 PM
                                                                   JEFFREY D. KYLE
                                                                              CLERK
       NO. 03-15-000221-CR

      IN THE COURT OF APPEALS FOR                 FILED IN
  THE THIRD JUDICIAL DISTRICT OF TEXAS     3rd COURT OF APPEALS
               AT AUSTIN                       AUSTIN, TEXAS
                                           6/4/2015 12:17:36 PM
                                             JEFFREY D. KYLE
                                                   Clerk
MICHAEL BRYAN GRACE, Appellant,

                   v.

 THE STATE OF TEXAS, Appellee.


              Arising from:

        Cause No. C-1-CR-13-211885
    IN THE COUNTY COURT AT LAW NO. 6,
           TRAVIS COUNTY, TEXAS



    BRIEF FOR APPELLANT



                              SEAN SOLIS
                              Attorney at Law
                              S.B.N. 24093982
                              University of Texas School of Law
                              Criminal Defense Clinic
                              Connally Center 4.302
                              727 E. Dean Keeton St.
                              Austin, Texas 78705
                              512-232-1300
                              512-471-3489 (FAX)
                              ssolis@utexas.edu

                              RICHARD SEGURA, JR.
                              Attorney at Law
                              S.B.N. 00788384

     Oral Argument Requested
                    IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Tex. R. App. Proc. 38.1, the appellant hereby provides a complete

list of all parties to the trial court’s judgment, and the names and addresses of all trial

and appellate counsel:


Counsel for the appellant in the trial court:          MATTHEW WATKINS
                                                       RICHARD SEGURA, JR.
                                                       Attorneys at Law
                                                       Univ. of Texas School of Law
                                                       Criminal Defense Clinic
                                                       Connally Center 4.302
                                                       727 E. Dean Keeton St.
                                                       Austin, Texas 78705

Counsel for the appellant in the appellate court:      SEAN SOLIS
                                                       RICHARD SEGURA, JR.
                                                       Attorneys at Law
                                                       Univ. of Texas School of Law
                                                       Criminal Defense Clinic
                                                       Connally Center 4.302
                                                       727 E. Dean Keeton St.
                                                       Austin, Texas 78705

Counsel for the appellee in the trial court:           DANIELLE TIERNEY
                                                       Assistant County Attorney
                                                       Travis County Attorney’s Office
                                                       314 West 11th Street, Room 300
                                                       Austin, Texas 78701

Counsel for the appellee in the appellate court:       GISELLE HORTON
                                                       Assistant County Attorney
                                                       Travis County Attorney’s Office
                                                       314 West 11th Street, Room 300
                                                       Austin, Texas 78701

                                            ii
                                          TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES .................................................................................... iv
STATEMENT OF THE CASE...................................................................................1
STATEMENT OF FACTS .........................................................................................1
SUMMARY OF APPELLANT’S ARGUMENT ......................................................3
POINT OF ERROR ONE ..........................................................................................4
   I. Standard of Review ..........................................................................................4
   II. Analysis ............................................................................................................4
CONCLUSION AND PRAYER ..............................................................................18
CERTIFICATE OF COMPLIANCE WITH RULE 9.4...........................................19
CERTIFICATE OF SERVICE .................................................................................19




                                                            iii
                                         INDEX OF AUTHORITIES

Cases

Davis v. State, 989 S.W.2d 859 (Tex. App.—Austin 1999, pet. ref’d.) ...................10

Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) ........................4, 12

Florida v. J.L., 529 U.S. 266 (2000) ..................................................... 3, 6-7, 9, 14-6

Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 185 (2004) .........................................5

Illinois v. Gates, 462 U.S. 213 (1983)......................................................................17

Navarette v. California, 134 S.Ct. 1683 (2014) ............................................... 3, 11-2

Smith v. State, 58 S.W.2d 784 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d.)

.............................................................................................................................. 16-7

State v. Garcia, No. 03-14-00048-CR, 2014 WL 4364623 (Tex. App.—Austin 2014,

no pet.).................................................................................................................... 8-9

State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) ............................ 4-5, 7-8

Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................4

United States v. Arvizu, 534 U.S. 266 (2002) ............................................................5




                                                               iv
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


                          STATEMENT OF THE CASE
      Michael Grace was charged by information with the offense of driving while

intoxicated (DWI), alleged to have occurred on or about July 7, 2013.              The

information further alleged a prior conviction for the same offense. The case

proceeded to a pretrial hearing with witnesses on a motion to suppress on October

28, 2014. The trial court denied the motion to suppress. On February 2, 2015, Grace

entered a plea of no contest to the charged offense. On the same day, the trial court

certified Grace’s right to appeal. On March 3, 2015, Grace filed a motion for a new

trial; it was denied. On April 7, 2015, Grace filed a notice of appeal.

                             STATEMENT OF FACTS
      The arresting officer did not witness Michael Grace commit any traffic

violation on the night he was arrested for DWI. (R.R. at 2: 33). The officer did not

witness Grace swerving or speeding. Id. He did not witness any of the indications

that would normally hint that something was wrong. Id. All that the officer had to

base reasonable suspicion on was one word in a computer-aided dispatch (CAD)

report: “intoxicated.” (R.R. at 2: 31).

      The CAD report was generated following a 911 call by Cary Allen. The

officer did not personally hear the call nor was he familiar with the caller (R.R. at 2:


                                           1
31-2). Unbeknownst to the officer, Allen works as a doorman at Ego’s Karaoke bar

three nights a week. (R.R. at 2: 7). While Allen was on-duty at Ego’s, he called 911

“to report a drunk driver.” (R.R. at 2: 12; State’s ex. 1). Allen did not relay any

personal training or experience that he had in determining whether people are

intoxicated. (R.R. at 2: 16). He did not relay the number of drinks Grace had. Id.

He did not relay any basis for thinking that Grace was drunk. Id. The only things

that Allen relayed to the 911 dispatcher regarding Grace’s condition were that “he

left intoxicated” and that he is “drunk.” (R.R. at 2: 17; State’s ex. 1).

      Allen made two calls to the 911 dispatcher. The first call, made around 2:07

a.m., was to inform the operator that Grace was “drunk” and sitting in a blue Scion

in the Ego’s parking lot. (R.R. at 2: 24; State’s ex. 1). Allen also gave the operator

Grace’s license plate number—BJN-1967. (R.R. at 2: 25; State’s ex. 1). Finally, he

described Grace as a “Caucasian male with a grey beard, probably about 55-60 years

old.” (R.R. at 2: 24; State’s ex. 1). The second call was to report that Grace had

taken off southbound on South Congress Avenue. (R.R. at 2: 26; State’s ex. 1).

      Officer Wright, an officer with the Austin Police Department, was dispatched

to respond to what was initially a public intoxication call. (R.R. at 2: 24). He

testified that all he learned about the call was that:




                                            2
      “Someone from Ego’s Bar called in saying there was someone in the parking
      lot driving a blue Scion, and they gave a license plate and provided a
      description of the person in the vehicle.”

Id. As Officer Wright was en route to the call, the dispatch updated and he was

informed the vehicle had left the scene. Id. He observed a blue Scion passing by

him going southbound. (R.R. at 2: 26). The officer turned around and caught up to

the vehicle around east Oltorf and Eastside Drive. Id. “After [he] verified the license

plate,” Officer Wright “initiated a traffic stop.” (R.R. at 2: 27).

                 SUMMARY OF APPELLANT’S ARGUMENT
      Point of Error One: The trial court erred in denying Grace’s motion to

suppress.   It gave improper weight to Allen’s description of Grace’s readily

observable location and appearance. The United States Supreme Court held that this

information:

      “Does not show that the tipster has knowledge of concealed criminal activity.
      The reasonable suspicion here at issue requires that a tip be reliable in its
      assertion of illegality, not just in its tendency to identify a determinate person.”

Florida v. J.L., 529 U.S. 266, 272 (2000). Furthermore, a conclusory allegation that

Grace “left intoxicated” and that he was “drunk” does not give rise to reasonable

suspicion. The Court recently affirmed the proposition that a “bare-bones tip [is]

unreliable.” Navarette v. California, 134 S.Ct. 1683, 1692 (2014). This, combined

with the fact that the arresting officer did not witness Grace commit any traffic

violation before initiating the investigatory stop, demonstrates that the officer did
                                           3
not possess any specific, articulable facts that, combined with rational inferences

from those facts would lead him to reasonably conclude that Grace was, or soon

would be, engaged in criminal activity. See State v. Kerwick, 393 S.W.3d 270, 273

(Tex. Crim. App. 2013). The judgment of the trial court should be reversed.

                            POINT OF ERROR ONE
     I.   Standard of Review
      In reviewing a trial court’s ruling on a pre-trial motion to suppress, an

appellate court applies a bifurcated standard of review. Id. The trial judge’s

determination of historical facts and mixed questions of law and fact that rely on

credibility are granted almost total deference when supported by the record. Id. But

when mixed questions of law and fact do not depend on the evaluation of credibility

and demeanor, an appellate court reviews the trial judge’s ruling de novo. Id.

Whether the facts known to the officer at the time of the detention amount to

reasonable suspicion is a mixed question of law and fact that is reviewed de novo on

appeal. Id.

    II.   Analysis
      The Fourth Amendment to the United States Constitution permits a

warrantless detention of a person, short of a full-blown custodial arrest, if the

detention is justified by reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 28 (1968);

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). “[A] law

                                         4
enforcement officer’s reasonable suspicion that a person may be involved in criminal

activity permits the officer to stop the person for a brief time and investigate further.”

Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 185 (2004). Reasonable suspicion to

detain a person exists if an officer has specific, articulable facts that, combined with

rational inferences from those facts, would lead him to reasonably conclude that the

person detained is, has been, or soon will be engaged in criminal activity. Kerwick,

393 S.W.3d at 273. These 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. Id. “Although an officer’s reliance on a mere ‘hunch’ is

insufficient to justify an investigatory stop, the likelihood of criminal activity need

not rise to the level required for probable cause.” United States v. Arvizu, 534 U.S.

266, 274 (2002). The test for reasonable suspicion is an objective one that focuses

solely on whether an objective basis exists for the detention and disregards the

officer’s subjective intent. Kerwick, 393 S.W.3d at 274. A reasonable-suspicion

determination requires looking at the totality of the circumstances, and reasonable

suspicion may exist even if those circumstances standing alone may be just as

consistent with innocent activity as criminal activity. Id.




                                            5
                  A. U.S. Supreme Court Precedent Demands Reversal

      The present case is similar to Florida v. J.L. There, an informant reported that

a young black male standing at a particular bus stop and wearing a plaid shirt was

carrying a gun. J.L., 529 U.S. at 268. Apart from the tip, the officers had no reason

to suspect J.L. of illegal conduct. Id. One of the officers frisked J.L. and seized a

gun from his pocket. Id. He was charged with carrying a concealed firearm without

a license and possessing a firearm while under the age of 18. Id. at 269. A

unanimous Supreme Court held that the trial court properly granted J.L.’s motion to

suppress because a bare-bones “tip lacking indicia of reliability … does not justify

a stop and frisk whenever and however it alleges the illegal possession of a firearm.”

Id. at 274.

      Here, like in J.L., we are dealing with a bare-bones tip. The only information

that Allen provided to the police was a general description of Grace, the make,

model, and license plate number of Grace’s car, and a conclusory allegation that

Grace was intoxicated. A subject’s readily observable appearance is not enough to

justify an investigatory stop. In the words of the Court:

      “An accurate description of a subject’s readily observable location and
      appearance … does not show that the tipster has knowledge of concealed
      criminal activity. The reasonable suspicion here at issue requires that a tip be
      reliable in its assertion of illegality, not just in its tendency to identify a
      determinate person.”


                                          6
Id. at 272.      Discounting Allen’s description of Grace’s readily observable

appearance, we are left with the conclusory allegation that Grace was intoxicated. A

conclusory allegation, even one that turns out to be accurate, does not amount to the

specific, articulable facts required by the Fourth Amendment. As the Court noted in

J.L.:

        “The … call … provided no predictive information and therefore left the
        police without means to test the informant’s knowledge and credibility. That
        the allegation about the gun turned out to be correct does not suggest that the
        officers, prior to the frisks, had a reasonable basis for suspecting J.L. of
        engaging in unlawful conduct: the reasonableness of the official suspicion
        must be measured by what the officers knew before they conducted their
        search.”

Id. at 271. The call here, like the one in J.L., provided no predictive information.

Allen did not relay the number of drinks Grace had. He did not relay any basis for

thinking that Grace was drunk. He did not relay any personal training he had in

determining whether people are intoxicated. As a result, Allen left the police without

the means to test his credibility.

        Apart from the tip, Officer Wright had no specific and articulable facts to

support the investigatory stop. The officer testified that he did not know why Allen

assumed that Grace was intoxicated. He did not witness Grace commit any traffic

violation before the stop. He did not observe Grace swerving between lanes. He did

not observe Grace speeding. He did not possess any specific, articulable facts that,


                                           7
combined with rational inferences from those facts would lead him to reasonably

conclude that Grace was, or soon would be, engaged in criminal activity. See

Kerwick, 393 S.W.3d at 273.


                       B. This Court’s Precedent Demands Reversal

      This court affirmed the granting of a motion to suppress on similar facts as

recently as last year. In State v. Garcia, an officer was on patrol when a 911 caller

who identified himself as “Eric” reported “a possible intoxicated driver in line at the

to-go line” at a fast-food restaurant. State v. Garcia, No. 03-14-00048-CR, 2014 WL

4364623, at *1 (Tex. App.—Austin 2014, no pet.). The officer testified that “the

caller … had seen the vehicle swerving on First Street, and … gave a description of

a silver two-door Acura with a Hispanic male driver with black hair.” Id. Based on

the fact that it was 2:40 a.m. in the morning (the officer testified that bars close at 2

a.m.), that the fast-food restaurant was located near a bar district, that the officer had

served for 27 years with the Austin police department, and that intoxicated drivers

tend to swerve, the officer initiated a temporary detention.            Id.   On cross-

examination, the officer testified that he did not know how long the 911 caller

followed the car he reported as swerving, did not know how many times the caller

saw the driver swerve, and did not know whether any other vehicles were placed in

danger by the reported swerving. Id.

                                            8
      Our case is indistinguishable from Garcia. Like in Garcia, Grace was arrested

early in the morning, around 2:07 a.m., just as bars were closing. However, as this

court noted:

      “The circumstances surrounding appellee’s driving—early morning near a bar
      district—do not describe illegal conduct and are not alone sufficient to provide
      reasonable suspicion of wrongdoing.”

Id. at *3. Like in Garcia, Grace was arrested based on a 911 call that consisted solely

of a conclusory allegation. Not good enough:

      “The caller’s suspicion that appellee was possibly intoxicated is not, without
      more, sufficient to provide reasonable suspicion for the temporary detention
      because there is no evidence of what facts … that conclusion was based on
      and no evidence of what experience the caller brought to bear to interpret
      those facts.”

Id. Finally, in both Garcia and the present case, the 911 caller provided information

about the defendants’ appearance as well as the make, model, and license plate

number of their cars. This issue was not addressed in Garcia, but as held in J.L., a

description of a subject’s readily observable appearance is not enough to justify an

investigatory stop. See J.L., 529 U.S. at 272.

      The one key difference is that in Garcia, the caller alleged that he had “seen a

vehicle swerving on First Street.” Here, Allen did not allege that Grace was

swerving in his vehicle. To the contrary, Officer Wright testified that he did not




                                          9
witness Grace swerving. Because this case is stronger on the facts than Garcia, this

court should reverse the trial court’s denial of Grace’s motion to suppress.

      Garcia is not an anomalous decision by this court. In Davis, a police officer

received a dispatch based on information from a call about a full-sized Chevy Blazer

with dealer’s tags 5D1180 in the area of mile post 259 on I-35 driving in a

northbound direction; that the vehicle was occupied by three white males; that the

vehicle was being driven recklessly; and that the occupants were “possibly smoking

marijuana.” Davis v. State, 989 S.W.2d 859, 861 (Tex. App.—Austin 1999, pet.

ref’d.). The officer testified that he observed no traffic offense being committed and

stopped the Blazer solely on the basis of the information in the dispatch. Id.

Following the stop, the officer found marijuana and cocaine in the vehicle. Id. This

court overruled the trial court’s denial of the defendant’s motion to suppress the

evidence, holding that the conclusory allegation that the occupants of the Blazer

were “possibly smoking marijuana” did not provide the officer with reasonable

suspicion. Id. at 864. “[T]he tipster did not indicate how she was able to make this

determination. The use of ‘possibly’ indicated her uncertainty.” Id.

      Garcia and Davis stand for the proposition that an uncorroborated tip from an

informant conveying a conclusory allegation does not provide an officer with the

reasonable suspicion necessary to initiate an investigatory stop. In such a situation,


                                         10
the officer has no specific and articulable facts because none are provided by the

informant. Furthermore, the officer himself does not generate any specific and

articulable facts by virtue of the fact that the tip is uncorroborated. Without any

specific and articulable facts, it follows that there is no objective basis for the

detention. The detention must have been based on the subjective intent of the

officer—in other words, the officer relied on a hunch.

                 C.     Navarette and Derichsweiler are Distinguishable

      Navarette is distinguishable from the present case because “the 911 caller in

[Navarette] reported more than a minor traffic infraction and more than a conclusory

allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous

result of the driver’s conduct: running another car off the highway.” Navarette, 134

S.Ct. at 1691 (emphasis added).

      Contrast that with our case. Allen reported a conclusory allegation of drunk

driving. He called in to “report a drunk driver.” The only subsequent descriptions

he gave of Grace’s condition was that Grace “left intoxicated” and that he was

“drunk.” Moreover, Allen did not allege a specific and dangerous result of Grace’s

conduct.   He did not describe any conduct that “bears … a resemblance to

paradigmatic manifestations of drunk driving…” See id. Allen’s 911 call amounted

to nothing more than an allegation of the name of an offense in the Texas Penal Code.


                                         11
The Court in Navarette went out of its way to reaffirm the holding in J.L.: a “bare-

bones tip [is] unreliable.” Id. at 1692.

      Derichsweiler is also distinguishable from the present case because there, the

witnesses provided specific, articulable facts describing the defendant’s conduct. In

that case, the witnesses called 911 to report an encounter with a man who pulled up

beside them in the drive-thru lane at McDonald’s. Derichsweiler, 348 S.W.3d at

909. The man was “[j]ust kind of grinning…and looking straight at [the witnesses].”

Id. The witnesses continued to describe the defendant’s conduct until the police

arrived. Id. at 910. One of the officers talked to the witnesses and took down their

contact information. Id. The court, in affirming Derichsweiler’s conviction, relied

upon the fact that the witnesses provided specific, articulable facts to the 911

dispatcher:

      “They identified themselves to the 911 dispatcher and remained answerable
      for their report after the fact. That report was based upon their own first-hand
      perceptions, many of which they continuously and contemporaneously
      narrated to the police via the 911 dispatcher.”

Id. at 915. Derichsweiler is different from our case in two important ways. First,

the witnesses in Derichsweiler provided specific, articulable facts describing the

defendant’s conduct. They provided a description of the suspicious conduct that the

defendant was engaging in: grinning and staring in a way that made the witnesses

feel “threatened” and “intimidated.” See id. at 909. By describing Derichsweiler’s

                                           12
conduct, the witnesses supplied the officer with specific, articulable facts that could

lead a reasonable officer to conclude that the defendant was, or would soon be,

engaged in criminal activity. Not so in the present case. Allen merely called 911

and alleged that Grace was “drunk.” A conclusory allegation, by definition, is

devoid of specific, articulable facts.

      Second, the witnesses in Derichsweiler were more reliable than the witness in

the present case.     The witnesses in Derichsweiler continued to describe the

defendant’s conduct to the 911 dispatcher until the police arrived on-scene. When

the police arrived, the witnesses gave out their contact information. In the present

case, Allen did not describe Grace’s driving. He was not there on-scene when Grace

was arrested. In fact, he did not speak to the arresting officer at all. Officer Wright

testified that he was unfamiliar with Allen and his level of familiarity in identifying

intoxicated individuals. All the officer had to base reasonable suspicion off of was

a conclusory allegation from an unknown man.

               D. The Trial Court Erred at the Motion to Suppress Hearing

      Before turning to the trial court, it is important to clear up a misconception in

the State’s argument at the motion to suppress hearing. The State argued that the

officer had reasonable suspicion because he “could certainly go back to Ego’s and

ask more questions if he had more questions about the reliability of the information


                                          13
he was getting.” (R.R. at 2: 40-1). This argument represents a fundamental

misunderstanding of Fourth Amendment jurisprudence. It is well settled that “the

reasonableness of the official suspicion must be measured by what the officers knew

before they conducted their search.” J.L., 529 U.S. at 271. Just because the officer

had the ability to go back to Ego’s and get something more from the witness than a

conclusory allegation does not save the State’s case. The officer must be armed with

reasonable suspicion before conducting the investigatory stop.

       The State makes a similar argument with regard to Allen’s experience in in

identifying intoxicated individuals:

       “You have a witness who has 20 years of experience in the restaurant and bar
       industry. He works three nights a week at Ego’s. He deals with this almost
       nightly. I can’t think of a more reliable witness to call the police and say ‘I
       think I have somebody with too much to drink on my hands.’”

(R.R. at 2: 41). Again, the flaw with this argument is that Allen did not convey these

facts to the 911 dispatcher. When Officer Wright made the stop, he did not know

about Allen’s experience in the restaurant and bar industry. Nor did he know about

Allen’s experience in dealing with intoxicated individuals. The Fourth Amendment

does not allow for post hoc attainment of reasonable suspicion on the part of the

arresting officer.

       In denying Grace’s motion to suppress, the trial court improperly relied upon

the fact that Allen provided Grace’s readily observable location and appearance:

                                         14
      “The witness provided a description of the defendant: Caucasian male, gray
      beard, 50s. The officer was also aware that the civilian witness had provided
      information about the color of the vehicle. The model … of the vehicle. There
      was information about his location. There was information about when this
      was happening … My understanding is that indicia of reliability really goes
      to whether or not … the caller has provided sufficient identifying
      information…”

(R.R. at 2: 50-1). The trial court erred. As the Supreme Court explained in J.L.:

      “An accurate description of a subject’s readily observable location and
      appearance … does not show that the tipster has knowledge of concealed
      criminal activity. The reasonable suspicion here at issue requires that a tip be
      reliable in its assertion of illegality, not just in its tendency to identify a
      determinate person.”

J.L., 529 U.S. at 272. The Fourth Amendment does not permit investigatory stops

based on a caller providing “sufficient identifying information.” If it did, it “would

enable any person seeking to harass another to set in motion an intrusive,

embarrassing police search of the targeted person simply by placing an anonymous

call…” Id. Instead of focusing its analysis on sufficient identifying information, the

trial court should have focused on whether the tip was reliable in its assertion of

illegality. The tip was not reliable in its assertion of illegality because it consisted

solely of a conclusory allegation in violation of J.L., Garcia, Davis, and the dictum

in Navarette. If the Fourth Amendment permitted bare-bones tips, we would still

have the problem that the Supreme Court identified in J.L.: potential harassment of

innocent victims by anonymous callers. Under the State’s rule, all a caller would


                                          15
have to do to initiate an intrusive police search would be to provide “sufficient

identifying information” and allege the name of an offense. This cannot be the case.

              E. The Trial Court Erred at the Motion for New Trial Hearing

      At the motion for new trial hearing, the trial court gave an additional reason

for denying Grace’s motion to suppress:

      “So perhaps the reason why the Courts … are requiring more of … a … basis
      … for the complainant’s allegation is because the complainant is not only
      anonymous to the dispatch, but also not available, I presume, to testify at trial.
      This was a different scenario. The State was able to … not only subpoena,
      but obtain testimony from a live witness who observed the defendant and
      indicated why he believed that the defendant was intoxicated.”

(R.R. at 3: 11-2). The trial court reasoned that because this case involved a known

informant who later testified at the motion to suppress hearing, it was immaterial

that he did not provide specific, articulable facts to the 911 dispatcher. This is error

for two reasons. First, Officer Wright did not know at the time he arrested Grace

that Allen was going to testify at a future motion to suppress hearing. As discussed

supra “the reasonableness of the official suspicion must be measured by what the

officers knew before they conducted their search.” J.L., 529 U.S. at 271. Second, a

tip from a known informant is not per se reliable:

      “Whether a detention was reasonable under the circumstances turns upon the
      reliability of the information possessed by the police, regardless of its origin,
      i.e., whether the information was observed first hand or obtained from a
      confidential informant, an anonymous tipster, or a concerned citizen reporting
      a possible crime in progress or of recent origin.”

                                          16
Smith v. State, 58 S.W.2d 784, 789 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d.). A known informant can provide the requisite reasonable suspicion to justify

an investigative detention so long as additional facts are present to demonstrate the

informant’s reliability. Id. at 790 (emphasis added). Where the information has a

low degree of reliability, more is required to justify an investigative detention and,

under the totality of the circumstances approach, the informant’s veracity, reliability,

and basis of knowledge are highly relevant. Id.; see also Illinois v. Gates, 462 U.S.

213, 214 (1983).

      The Gates factors must be applied to what the police knew about Allen prior

to Officer Wright initiating the investigatory stop. Regarding Allen’s veracity and

reliability, Officer Wright testified that he was not personally familiar with Allen at

the time of the 911 call. He did not know what kind of training Allen had in

observing possible signs of intoxication. Nor did he know how much experience

Allen had in identifying those factors. Turning to the final Gates factor, basis of

knowledge, Allen did not relay the number of drinks Grace had or any basis for

thinking that Grace was drunk. Thus, even though Allen was a known informant,

because he did not provide specific, articulable facts, and because his veracity,

reliability, and basis of knowledge were questionable at the time of Grace’s arrest,

the trial court erred in denying Grace’s motion to suppress.

                                          17
                         CONCLUSION AND PRAYER
      It is respectfully submitted that all things are regular and the judgment of the

trial court should be reversed.

                                                    /s/ Sean Solis
                                                    SEAN SOLIS
                                                    Attorney at Law
                                                    S.B.N. 24093982
                                                    Univ. of Texas School of Law
                                                    Criminal Defense Clinic
                                                    Connally Center 4.302
                                                    727 E. Dean Keeton St.
                                                    Austin, Texas 78705
                                                    512-232-1300
                                                    512-471-3489 (FAX)
                                                    ssolis@utexas.edu




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              CERTIFICATE OF COMPLIANCE WITH RULE 9.4
        I hereby certify that this document complies with the requirements of Tex. R.

App. Proc. 9.4(i)(2)(B) because there are 4,103 words in this document, excluding

the portions of the document excepted from the word count under Rule 9(i)(1), as

calculated by the MS Word computer program used to prepare it.


                                                      /s/ Sean Solis
                                                      SEAN SOLIS
                                                      Attorney at Law




                           CERTIFICATE OF SERVICE
        Pursuant to Tex. R. App. Proc. 9.5(e), I hereby certify that a true and correct

copy of the foregoing instrument was emailed to the counsel for the State on June 4,

2015:

Ms. Giselle Horton
Assistant County Attorney
Travis County Attorney’s Office
314 West 11th Street, Room 300
Austin, Texas 78701

                                                      /s/ Sean Solis
                                                      SEAN SOLIS
                                                      Attorney at Law




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