                                MEMORANDUM OPINION
                                        No. 04-11-00643-CR

                                      Henry D. McKINNON,
                                            Appellant

                                                v.

                                       The STATE of Texas,
                                             Appellee

                    From the County Court at Law No. 12, Bexar County, Texas
                                     Trial Court No. 320730
                             Honorable Scott Roberts, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen Angelini, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: March 28, 2012

AFFIRMED

           After the trial court denied his motion to suppress evidence, appellant Henry D.

McKinnon entered a plea of nolo contendere to the offense of driving while intoxicated.

McKinnon now challenges the trial court’s ruling on the motion to suppress. We affirm the trial

court’s judgment.
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                                          BACKGROUND

       At approximately 5:30 a.m., San Antonio Police Officer Thomas Smith received a police

dispatch informing him that a concerned motorist was following a vehicle being driven

erratically about five miles from Smith’s location. While Smith drove to intercept the vehicle,

the dispatcher relayed the concerned motorist’s observations in real-time to Officer Smith. The

motorist reported street locations and specific details about the vehicle’s movements—weaving

in and out of traffic, driving on the shoulder, and almost causing a collision with at least one

other vehicle. When Officer Smith’s car approached the two vehicles, they were stopped at a

traffic light. Upon seeing the patrol car, the concerned motorist waved to Officer Smith and

pointed at McKinnon’s vehicle. Officer Smith pulled up to the concerned motorist’s car at a

distance that Smith testified was “face-to-face.” The motorist exclaimed to Smith, “That’s the

guy,” and pointed at McKinnon. Smith maneuvered between McKinnon’s vehicle and the

concerned motorist’s vehicle and activated the police cruiser’s overhead lights. McKinnon

pulled into a nearby gas station. The concerned motorist drove away without giving his name to

the 911-dispatcher or to Officer Smith.

       Smith approached McKinnon and immediately observed he had glassy, bloodshot eyes,

the strong smell of alcohol on his breath, and slurred speech. Smith asked McKinnon to exit his

vehicle. Upon exiting, he lost his balance, almost fell, and staggered as he walked. Smith

performed standardized field sobriety tests (SFSTs) on McKinnon.         The SFSTs indicated

McKinnon was intoxicated, and McKinnon was arrested and placed in Smith’s patrol car.

       At the suppression hearing, Officer Smith testified that he did not personally witness

McKinnon commit a traffic violation. The trial court denied McKinnon’s motion to suppress

evidence, and he pleaded nolo contendere to driving while intoxicated.



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                                      MOTION TO SUPPRESS

       In his sole issue on appeal, McKinnon claims the trial court erred in denying his motion

to suppress because the arrest was the result of evidence obtained during an improper

investigative detention that was conducted without reasonable suspicion.

A. Standard of Review

       We use a bifurcated standard in reviewing a trial court’s ruling on a motion to suppress

evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost total deference to the trial court’s

factual determinations; we review de novo the application of law to the facts. Valtierra, 310

S.W.3d at 447–48.

B. Temporary Detention Based on Anonymous Tip

       A valid temporary detention must be reasonable and justified at its inception. Terry v.

Ohio, 392 U.S. 1, 19–20 (1968); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). An

officer is justified in initiating a traffic stop “if the officer, based upon specific and articulable

facts, reasonably surmises that the detained person may be associated with a crime.” Davis v.

State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (citing Terry, 392 U.S. at 21). An officer

need not personally observe the traffic violation; under certain circumstances, a stop may be

justified if the facts underlying the traffic stop are observed by a citizen-informant. Brother v.

State, 166 S.W.3d 255, 257–58 (Tex. Crim. App. 2005) (citing Adams v. Williams, 407 U.S. 143,

147 (1972)). A citizen’s tip may justify the initiation of a stop if the tip contains “sufficient

indicia of reliability.” Arizpe v. State, 308 S.W.3d 89, 92 (Tex. App.—San Antonio 2010, no

pet.) (quoting Florida v. J.L., 529 U.S. 266, 270 (2000) (internal quotation marks omitted)).




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       McKinnon contends Officer Smith lacked reasonable suspicion to stop him because (1)

the informant neither gave his name nor remained on the scene, and (2) Smith failed to

corroborate the concerned motorist’s information.

       1. Reliability of an Anonymous Tip

       We evaluate four factors in determining the reliability of an anonymous citizen’s

information: “(1) whether the informant provide[d] a detailed description of the wrongdoing; (2)

whether the informant observed the wrongdoing firsthand; (3) whether the informant is somehow

connected with the police (e.g., a paid informant); and (4) whether the informant place[d]

himself in a position to be held accountable for the report.” Arizpe, 308 S.W.3d at 92 (citing

Pipkin v. State, 114 S.W.3d 649, 655 (Tex. App.—Fort Worth 2003, no pet.)); accord Brother v.

State, 166 S.W.3d 255, 258 (Tex. Crim. App. 2005).            When determining an informant’s

reliability, courts distinguish between anonymous 911-callers and unidentified informants who

give unsolicited information to officers in a face-to-face manner. The face-to-face informant is

inherently more reliable than the anonymous 911-caller because the face-to-face informant

places himself in a position to be held responsible for his intervention. Arizpe, 308 S.W.3d at 93;

see also Mitchell v. State, 187 S.W.3d 113, 117–18 (Tex. App.—Waco 2006, pet. ref’d); Hawes

v. State, 125 S.W.3d 535, 538–39 (Tex. App.—Houston [1st Dist.] 2002, no pet.); State v.

Fudge, 42 S.W.3d 226, 232 (Tex. App.—Austin 2001, no pet.).

       Because the concerned motorist’s identity is unknown, the information he provided to the

dispatcher and Officer Smith is considered an anonymous tip. See Mitchell, 187 S.W.3d at 117.

Therefore, we look to the four factors used in Arizpe to determine the reliability of the 911-

caller’s information.




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       The concerned motorist phoned 911 and relayed contemporaneous details of the location

and nature of the events that he witnessed firsthand. Specifically, the caller gave detailed facts

about McKinnon’s erratic driving, including weaving, driving on the shoulder, and causing other

vehicles to swerve. This detailed information is sufficient for establishing the first and second

factors for determining reliability. See Arizpe, 308 S.W.3d at 92; see also Brother, 166 S.W.3d

at 258. Moreover, there is no evidence that the 911-caller was a paid informant; therefore, the

third factor is satisfied. See Arizpe, 308 S.W.3d at 92; see also Brother, 166 S.W.3d at 258.

Finally, the motorist spoke face-to-face with Officer Smith, and there is no evidence the motorist

refused to reveal his identity. The unidentified motorist placed himself in a position where he

could have been identified and held accountable for the information he provided, and Smith

testified that he had “the opportunity” to ask the concerned motorist’s name and to run his

license plates. See Arizpe, 308 S.W.3d at 93; Fudge, 42 S.W.3d at 232. The fact that Officer

Smith chose not to obtain identifying information such as the motorist’s name, driver’s license

number, or license plate number does not, by itself, make the motorist’s information unreliable.

See Arizpe, 308 S.W.3d at 93; Fudge, 42 S.W.3d at 232. There is nothing in the record that

should have caused Officer Smith to question the reliability of the face-to-face informant. See

Arizpe, 308 S.W.3d at 93. Accordingly, the fourth factor for determining reliability has been

established. See id. Considering all four factors for determining reliability of an anonymous

informant’s tip, we conclude that the concerned motorist’s information was reliable. See id.; see

also Brother, 166 S.W.3d at 258.

       2. Basis for Reasonable Suspicion

       McKinnon argues that Officer Smith lacked reasonable suspicion because he did not

corroborate the concerned motorist’s information by personally observing erratic driving.



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       Having determined the concerned motorist’s information was reliable, we must determine

“whether the totality of that reliable information provided specific, articulable facts that,

combined with reasonable inferences to be derived from those facts, would lead to the reasonable

conclusion that the appellant was committing . . . some type of criminal activity.”               See

Derichsweiler v. State, 348 S.W.3d 906, 915–16 (Tex. Crim. App. 2011); see also Martinez v.

State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). Before detaining a suspect, an officer must

corroborate the facts supplied by a citizen-eyewitness. Brother, 166 S.W.3d at 258–59 & n.5.

However, corroboration does not require the officer to personally observe criminal conduct;

“[r]ather, corroboration refers to whether the police officer, in light of the circumstances,

confirms enough facts to reasonably conclude that the information given to him is reliable and a

temporary detention is thus justified.” Id. at 259 n.5.

       Smith testified that his experience and training combined with the facts relayed from the

concerned motorist gave him reasonable suspicion that McKinnon was driving while intoxicated.

He stated a motorist’s erratic driving, swerving, driving on the shoulder of the road, and almost

causing vehicular accidents are consistent with intoxicated driving.           See id. at 256, 258

(determining a concerned motorist’s account of a suspect’s erratic driving and weaving in and

out of traffic was sufficient evidence of intoxication to support a traffic stop). The totality of the

information supplied by the concerned motorist provided specific and articulable facts that

reasonably led Officer Smith to believe McKinnon was driving while intoxicated.                   See

Derichsweiler, 348 S.W.3d at 915–16; Brother, 166 S.W.3d at 258–59 & n.5. Thus, when

Officer Smith confronted the concerned motorist, saw the vehicle described by the motorist, and

the motorist pointed to McKinnon, Smith had sufficient evidence to reasonably conclude that the

information given to him was reliable. See Brother, 166 S.W.3d at 258–59. Because the



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information given by the informant was reliable, Officer Smith was not required to follow

McKinnon until he personally observed a traffic violation. See id. at 259 (“To require officers

who are apprised of detailed facts from citizen-eyewitnesses to observe suspects and wait until

additional suspicious acts are committed, would be foolish and contrary to the balance of

interests struck in Terry and its progeny.”); cf. State v. Fudge, 42 S.W.3d 226, 232 (Tex. App.—

Austin 2001, no pet.). Accordingly, Officer Smith had reasonable suspicion to stop McKinnon.

                                          CONCLUSION

       The trial court did not err in denying McKinnon’s motion to suppress evidence.

Therefore, we affirm the trial court’s judgment.


                                                   Rebecca Simmons, Justice

DO NOT PUBLISH




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