Opinion issued December 15, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-01062-CR
                           ———————————
                        JELLIAN ARDOIN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1458322


                         MEMORANDUM OPINION

      Based on information received from an anonymous 911 call, police officers

conducted an investigative stop and temporarily detained appellant Jellian Ardoin.

After smelling the odor of marijuana coming from inside his car, the officers

performed a search and found marijuana and cocaine.
      Ardoin pleaded guilty, without an agreed recommendation as to punishment,

to the offense of possession with intent to deliver cocaine weighing between 4

grams and 200 grams. See TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D),

481.112(a)(d). The trial court sentenced him to 25 years in prison. In a single issue

on appeal, Ardoin challenges the investigative stop and contends that the trial court

erred by refusing to suppress evidence acquired after the stop.

      Because the arresting officers had reasonable suspicion that Ardoin had been

engaged in criminal activity, we affirm the judgment of conviction.

                                    Background

      A 911 operator received a call from a woman on the southeast side of

Houston, in an area known for gang and narcotics activity. The caller reported that

a man had been standing in the middle of the street waving a gun, and that he had

entered a black Dodge Challenger. She gave the operator a description of the man,

the location of the incident, and the car’s license plate number.

      Two police officers were dispatched to the location within several minutes

of the call. The officers received a “call slip” from dispatch, containing the

information reported on the 911 call. Upon arrival, the officers found a black

Challenger backing into a driveway. The officers verified that the license plate

matched the number reported on the 911 call, and they pulled into the driveway in

front of the Challenger. They got out of their car and approached the vehicle,



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which was occupied by appellant Jellian Ardoin. As the officers approached,

Ardoin opened the car door. The officers smelled the odor of marijuana coming

from inside the vehicle. Based on the smell of marijuana, one of the officers

searched the car and found marijuana and powder cocaine inside.

      Ardoin was arrested and indicted for possession with intent to deliver

cocaine weighing between 4 grams and 200 grams. Prior to trial, he filed a motion

to suppress evidence. He argued that the 911 call was not sufficiently reliable and

that the call did not allege that he had engaged in criminal activity, both of which,

he argued, would be necessary to justify an investigative stop. Thus, Ardoin only

challenged the legality of the initial stop. He requested that the trial court suppress

all evidence obtained after that point. He did not challenge the officers’ subsequent

search of his vehicle or his arrest.

      At the time of trial, the court had not yet ruled on the motion to suppress.

The court arraigned Ardoin in front of the jury, and he initially pleaded “not

guilty” to the charges alleged in the indictment. The State introduced a recording

of the 911 call and then called one of the officers who temporarily detained Ardoin

to testify about the events leading up to the arrest. Before the officer testified about

the investigative stop, the court held a hearing on the motion to suppress outside of

the presence of the jury. During the hearing, the officer testified that neither he nor

the other arresting officer personally had observed Ardoin engaged in criminal



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activity prior to detaining him. The information provided in the 911 call was the

only information from which the officers formed a suspicion of criminal activity.

The court denied the motion to suppress. Ardoin changed his plea to guilty, and he

also pleaded true to the alleged enhancements.

        The trial court assessed punishment at 25 years in prison. Ardoin appealed.

                                       Analysis

        In his sole issue, Ardoin contends that the trial court erred by denying his

motion to suppress evidence. Specifically, he argues that the officers’ investigative

stop could not be supported by the information given to them by dispatch. He

contends that because the 911 call did not contain sufficient indicia of reliability, it

did not support a reasonable suspicion of criminal activity necessary to conduct the

stop.

        A ruling on a motion to suppress evidence is reviewed for an abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We

give almost total deference to a trial court’s determination of historical facts,

especially if those determinations turn on witness credibility or demeanor, and we

review de novo the trial court’s application of the law to facts not based on an

evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.

Crim. App. 2008). At a suppression hearing, the trial court is the sole and exclusive

trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d



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278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to believe

or disbelieve all or part of the testimony of a witness. State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000). Although appellate courts generally limit their review

of the trial court’s ruling to an examination of the evidence produced at the

suppression hearing, because the court heard the motion to suppress after a portion

of the State’s case-in-chief, we will consider all of the evidence that was before the

court at the time of its ruling. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.

Crim. App. 2007).

      A police officer may detain a person temporarily for investigative purposes

if the officer reasonably suspects that the detained person is connected with a

crime. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968); Wade v.

State, 422 S.W.3d 661, 668–69 (Tex. Crim. App. 2013). Reasonable suspicion

exists when a police officer has “a particularized and objective basis for suspecting

the particular person stopped of criminal activity.” Navarette v. California, 134 S.

Ct. 1683, 1687 (2014); see Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim.

App. 2014). “A police officer has reasonable suspicion to detain if he has specific,

articulable facts that, combined with rational inferences from those facts, would

lead him reasonably to conclude that the person detained is, has been, or soon will

be engaged in criminal activity.” Matthews, 431 S.W.3d at 603. Courts determine




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if reasonable suspicion exists by objectively considering the totality of the

circumstances. Id.

      Whether a reasonable suspicion exists “is dependent upon both the content

of information possessed by police and its degree of reliability.” Navarette, 134 S.

Ct. at 1687 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416

(1990)). The detaining officer need not personally observe nor be aware of every

fact that supports a reasonable suspicion to detain; rather, “the cumulative

information known to the cooperating officers at the time of the stop is to be

considered in determining whether reasonable suspicion exists.” Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (quoting Hoag v. State, 728

S.W.2d 375, 380 (Tex. Crim. App. 1987)); see also Navarette, 134 S. Ct. at 1687–

88; Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).

       A stop may be justified if the facts underlying the stop are observed by a

civilian informant. See Navarette, 134 S. Ct. at 1688; see also Brother, 166 S.W.3d

at 257. An anonymous tip alone is rarely enough to justify an investigative stop.

See Navarette, 134 S. Ct. at 1688; see also Martinez v. State, 348 S.W.3d 919,

923–24 (Tex. Crim. App. 2011). But when an anonymous tip is supported by

“sufficient indicia of reliability,” it may justify a stop. See Navarette, 134 S. Ct. at

1688; Martinez, 348 S.W.3d at 923–924. Courts have identified several indicia of

reliability with respect to tips from a citizen informant. An informant may be



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treated as more reliable if he provides a firsthand account and a detailed

description of wrongdoing. Taflinger v. State, 414 S.W.3d 881, 885 (Tex. App.—

Houston [1st Dist.] 2013, no pet.); see also Navarette, 134 S. Ct. at 1689;

Derichsweiler, 348 S.W.3d at 915–16. The more information provided by the

informant that the police are able to corroborate, the more reliable the tip. See

Taflinger, 414 S.W.3d at 885. Courts consider an informant who is not connected

with the police inherently trustworthy when advising the police of suspected

criminal activity. Id. The Supreme Court has recognized that because the 911

system “has some features that allow for identifying and tracing callers,” tips from

911 callers should be considered more reliable. Navarette, 134 S. Ct. at 1689–90;

see Carr v. State, No. 01-15-00246-CR, 2016 WL 796878 at *3–4 (Tex. App.—

Houston [1st Dist.] March 1, 2016, no pet.) (mem. op., not designated for

publication). Thus, in order for the officers to have properly detained Ardoin and

conducted an investigative stop, the 911 call must have contained sufficient indicia

of reliability and the call must have contained information that provided the

officers with a reasonable suspicion that he had engaged in criminal activity. See

Martinez, 348 S.W.3d at 924; Matthews, 431 S.W.3d at 603.

      In Navarette, the Supreme Court analyzed whether a 911 call contained

sufficient indicia of reliability to justify an investigative stop. Navarette, 134 S. Ct.

at 1686–87, 1692. In that case, highway patrolmen received a report from an



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anonymous 911 caller that a silver Ford F–150 pickup traveling southbound on the

highway had run him off the road. Id. at 1686–87. A few minutes later, a highway

patrolman encountered a truck matching the one described by the caller traveling

in the direction reported. Id. at 1687. Though the record contained no indication

that the patrolman himself observed the silver pickup driving erratically, the Court

held that the caller’s tip contained adequate indicia of reliability to support a

reasonable suspicion for a stop, given that it was based on eyewitness knowledge,

was contemporaneously made, and was made to the 911 emergency system. Id. at

1686–87, 1692.

      The tip regarding Ardoin was given to the officers through the 911

emergency system, therefore creating some indicia of reliability. See id. Further,

the caller provided the dispatcher with information based on personal knowledge.

She reported that she watched a man in the street waving a gun. She described the

man and his car, including his exact license plate number, and correctly identified

their location. The officers arrived at the location within minutes of the 911 call.

Upon their arrival, the officers were able to corroborate much of the information

provided by the caller. They found a black Dodge Challenger with a license plate

number matching the one given by the caller, and they found a man matching the

description given by the caller. Thus, the 911 call received in this case contained




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sufficient indicia of reliability. See id.; see also Derichsweiler, 348 S.W.3d at 915–

16; Taflinger, 414 S.W.3d at 885.

      Ardoin attempts to distinguish the 911 call in this case from the one in

Navarette because this caller did not identify herself to the dispatcher. But in

coming to its conclusion that a 911 call could contain sufficient indicia of

reliability, the Navarette Court assumed that the 911 caller was anonymous.

Navarette, 134 S. Ct. at 1687 n.1. The fact that the caller in this case did not

identify herself to the dispatcher does not deprive the call of its indicia of

reliability. See id. at 1689–90.

      With respect to the requirement that the call had to provide the officers with

a reasonable suspicion of criminal activity, Ardoin factually disputes that the caller

reported a man waving a gun in the street. Instead, he contends that the 911

operator—not the caller—made the statement that the man was waving a gun, and

therefore the information provided to the officers was incorrect. From this he

argues that even if the call were reliable, its substance did not justify an

investigative stop. He contends the call itself did not provide information sufficient

to provide the officers with a reasonable suspicion that he was engaged in criminal

activity, yet the officers relied solely upon the information provided to them

regarding the call in conducting their investigative stop of Ardoin.




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      Despite characterizing the recording of the 911 call as “unclear,” the trial

court found that it was the caller, not the 911 operator, who stated that a man was

waving a gun. Because we give almost total deference to the trial court’s

determination of historical fact, we accept the trial court’s finding. Neal, 256

S.W.3d at 281.

      When the officers detained Ardoin, they had a sufficiently reliable tip from

an eyewitness who stated that a man was waving a gun in the middle of the street.

This action took place in area of town that is known for high levels of gang and

narcotic activity. Before conducting an investigative stop, the officers corroborated

most of the information provided by the caller. The only thing the officers did not

see was Ardoin waving the gun.

      The officer who conducted the investigative stop believed that Ardoin had

engaged in deadly conduct. Waving a gun around in the middle of the street could

constitute the offense of deadly conduct. See TEX. PENAL CODE § 22.05 (a person

commits deadly conduct “if he recklessly engages in conduct that places another in

imminent danger of serious bodily injury”). Therefore, based on an objective view

of the totality of the circumstances, the officers possessed sufficient information to

support a reasonable suspicion that Ardoin had been engaged in criminal activity.

See Derichsweiler, 348 S.W.3d at 916–17.




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      Because the 911 call contained sufficient indicia of reliability and the totality

of the circumstances supported a conclusion that the officers had reasonable

suspicion that he was or had been engaged in criminal activity, we hold that the

officers properly detained Ardoin for an investigative stop. Therefore, the trial

court did not abuse its discretion by denying the motion to suppress evidence.

      We overrule Ardoin’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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