                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00188-CR
        ______________________________


         THE STATE OF TEXAS, Appellant

                          V.

          JAMIE LEA WILSON, Appellee




   On Appeal from the 354th Judicial District Court
                Hunt County, Texas
               Trial Court No. 26057




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                             OPINION

        The State appeals1 the trial court’s ruling granting a motion to suppress filed by Jamie Lea

Wilson after her arrest for possession of methamphetamine in an amount of four or more but less

than 200 grams. We affirm the trial court’s ruling.

I.      FACTUAL AND PROCEDURAL HISTORY

        Officer Stephen Brownlow was contacted ―regarding a tip involving drug activity.‖ Over

the telephone, an informant revealed that ―there would be a gold, Chevy Blazer expected

eastbound on Highway 66 within 15 minutes of [when] we receive[d the] information, and there

would be two females in the vehicle and that they would be carrying about four ounces of

methamphetamine.‖

        Brownlow located a gold Chevy Blazer and ―followed it through town‖ for approximately

five minutes. No traffic or other violation was committed. The vehicle pulled into the driveway

of a private residence behind a local church and parked in front of another vehicle. Brownlow

turned on the patrol car lights as the Blazer came to a stop. Jennifer Rossignol was driving the

Blazer while carrying passenger Wilson. Brownlow testified that ―when I stopped the vehicle,

the driver got out‖ and ―tried to walk over to the house. I told her to stop and come back to the

vehicle.‖ Rossignol’s driver’s license was expired.




1
 The State’s appeal was made in accordance with our Code of Criminal Procedure, authorizing us to exercise
jurisdiction. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon Supp. 2010).

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        Brownlow testified Wilson ―was reaching down -- she turned away from the patrol -- from

us and our view, the front of her body was facing away, and she was digging down in her pants like

this like she was either stuffing, reaching, or scratching something. So immediately suspicious.‖

Fearing Wilson might have a weapon, Brownlow instructed her to ―get her hands out of her pants.‖

When she turned around, Brownlow observed ―a cylindrical shaped object on the side of her leg.‖

Prior to the commencement of a pat-down search, Wilson voluntarily retrieved methamphetamine

from her pants. She was arrested for possession of methamphetamine.

II.     STANDARD OF REVIEW

        We review the trial court’s decision to grant Wilson’s motion to suppress evidence by

applying a bifurcated standard of review.        Graves v. State, 307 S.W.3d 483, 489 (Tex.

App.—Texarkana 2010, pet. ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana

2009, pet. ref’d).

        Because the trial court is the exclusive trier of fact and judge of witness credibility at a

suppression hearing, we afford almost total deference to its determination of facts supported by the

record. State v. Ross, 32 S.W.3d 853, 856–57 (Tex. Crim. App. 2000); Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We also afford such deference to a trial court’s ruling on application of law to fact

questions, also known as mixed questions of law and fact, if the resolution of those questions turns




                                                 3
on an evaluation of credibility and demeanor. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996).

       While we defer to the trial court on its determination of historical facts and credibility, we

review de novo its application of the law and determination on questions not turning on credibility.

Carmouche, 10 S.W.3d at 332; Guzman, 955 S.W.2d at 89; Graves, 307 S.W.3d at 489. Since all

evidence is viewed in the light most favorable to the trial court’s ruling, we are obligated to uphold

the granting of Wilson’s motion to suppress if it was supported by the record and was correct under

any theory of law applicable to the case. Carmouche, 10 S.W.3d at 328; State v. Ballard, 987

S.W.2d 889, 891 (Tex. Crim. App. 1999).

III.   ANALYSIS

       A.      Burden of Proof

       When a defendant seeks to suppress evidence on the basis of an illegal search or seizure,

the burden of proof is placed initially upon the defendant. Ford v. State, 158 S.W.3d 488, 492

(Tex. Crim. App. 2005). A defendant meets the initial burden of proof by establishing that a

search or seizure occurred without a warrant, shifting the burden of proof to the State. Id. If the

State is unable to produce evidence of a warrant, it must prove the reasonableness of the search or

seizure. Id. Here, the suppression hearing began with the State stipulating this case involved a

warrantless arrest. This stipulation shifted the burden of proof to the State. See id.




                                                  4
       B.      Brownlow’s Seizure of Wilson Was an Investigative Detention

       The Texas Court of Criminal Appeals recognizes three categories of interactions between

police officers and citizens: arrests, investigative detentions, and encounters. State v. Perez, 85

S.W.3d 817, 819 (Tex. Crim. App. 2002).           Citing State v. Priddy, the State argues that

Brownlow’s interaction with Wilson was an encounter which did not require probable cause or

reasonable suspicion. 321 S.W.3d 82, 87 (Tex. App.—Fort Worth 2010, pet. ref’d). In Priddy,

our sister court correctly stated that during encounters, ―[l]aw enforcement officers are permitted

to approach individuals without probable cause or reasonable suspicion‖ because although ―[s]uch

interactions may involve inconvenience or embarrassment . . . they do not involve official

coercion.‖ Id. (citing Florida v. Royer, 460 U.S. 491, 497–98 (1983); State v. Garcia-Cantu, 253

S.W.3d 236, 243 (Tex. Crim. App. 2008); State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim.

App. 1999)).

       The lack of requirement for probable cause or reasonable suspicion is premised on the

theory that ―[u]nlike an investigative detention or an arrest--each a seizure for Fourth Amendment

purposes--an encounter is a consensual interaction, which the citizen may terminate at any time.‖

Id. at 86 (citing Gurrola v. State, 877 S.W.2d 300, 302–03 (Tex. Crim. App. 1994)). ―So long as

the citizen remains free to disregard the officer’s questions and go about his or her business, the

encounter is consensual and merits no further constitutional analysis.‖ Id. (citing California v.

Hodari D., 499 U.S. 621, 628 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App.



                                                5
1995)). The test also has been stated that ―in order to determine whether a particular encounter

constitutes a seizure, a court must consider all the circumstances surrounding the encounter to

determine whether the police conduct would have communicated to a reasonable person that the

person was not free to decline the officers’ requests or otherwise terminate the encounter.‖

Florida v. Bostick, 501 U.S. 429, 439 (1991).

       The facts of this case do not indicate a consensual encounter. Brownlow had been driving

behind the Blazer for approximately five minutes before he followed it into the driveway of a

private residence. He turned on his patrol car lights as the vehicle came to a stop. When the

driver of the vehicle exited the Blazer and began walking toward the house, Brownlow ―told her to

stop and come back to the vehicle.‖ This command, by the uniformed officer given after

initiation of patrol car lights, would communicate to reasonable persons that they were not free to

decline the officer’s requests or otherwise terminate the encounter. Therefore, Brownlow’s

seizure of Wilson implicated Fourth Amendment protections.

       C.      Reasonable Suspicion Was Required

       The Fourth Amendment prohibits ―unreasonable searches and seizures.‖ U.S. CONST.

amend. IV. This prohibition extends to ―brief investigatory stops such as the stop of [a] vehicle.‖

United States v. Cortez, 449 U.S. 411, 417 (1981); see Corbin v. State, 85 S.W.3d 272, 276 (Tex.

Crim. App. 2002).




                                                6
       Law enforcement officers may stop and briefly detain persons suspected of criminal

activity on less information than is constitutionally required for probable cause to arrest. Terry v.

Ohio, 392 U.S. 1, 22 (1968). To initiate an investigative stop, the officer must possess a

reasonable suspicion based on specific, articulable facts that in light of the officer’s experience and

general knowledge, would lead the officer to the reasonable conclusion that criminal activity is

underway and the detained person is connected to the activity. Garcia v. State, 43 S.W.3d 527,

530 (Tex. Crim. App. 2001). Such a stop must be objectively reasonable in light of the particular

circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411 (1997); Terry, 392 U.S. at

21–22; Corbin, 85 S.W.3d at 276. Reasonableness depends on ―a balance between the public

interest and the individual’s right to personal security free from arbitrary interference by law

enforcement.‖ Corbin, 85 S.W.3d at 276 (quoting Wilson, 519 U.S. at 411).

       D.      The Investigative         Detention     Without     Reasonable      Suspicion      Was
               Unreasonable

               1.      The Anonymous Tip

       An investigative stop need not be based on personal observation, but may be based on an

informant’s tip that bears sufficient ―indicia of reliability‖ to justify a stop. See Adams v.

Williams, 407 U.S. 143, 147 (1972). The State argues Brownlow’s detention was reasonable

given the informant’s tip.

       An anonymous telephone call rarely will, standing alone, establish the requisite level of

reasonable suspicion because ―an anonymous tip alone seldom demonstrates the informant’s basis


                                                  7
of knowledge or veracity.‖ Gilmore v. State, 323 S.W.3d 250, 258 (Tex. App.—Texarkana 2010,

pet. ref’d) (citing Alabama v. White, 496 U.S. 325, 329 (1990); Florida v. J.L., 529 U.S. 266, 270

(2000)).

         After a hearing, the trial court granted the motion to suppress the evidence found as a result

of the search. The trial court was in the best position to observe and determine the reasonableness

and credibility of the testimony. When the trial court makes no specific findings of historical fact,

we presume it made those findings necessary to support its ruling, provided they find support in

the record. Carmouche, 10 S.W.3d at 327–28. The evidence appears to support the trial court’s

implicit conclusion that the informant’s information was, in the inception, classified as an

anonymous tip.

         Brownlow originally stated in his report that the informant was anonymous, but at the

suppression hearing, he testified that the informant was a confidential informant whom Brownlow

knew at the time he was contacted. Later, Brownlow qualified that account and stated that the

informant was identified ―[w]hen the report was done.‖ When later questioned by the trial judge,

Brownlow stated that he did not know the informant, and the reliability of the informant could only

be established by corroboration of information.2 No attempt was made to present evidence that

the informant had given other reliable information in the past.


2
 Brownlow later divulged the informant’s identity as Wilson’s boyfriend, Jacob Donahue. As set forth below, the
record is unclear whether the informant’s identity was known at the time of the telephone call, or was deciphered at a
later date:


                                                          8
                 2.       Corroboration of the Tip

        To provide reasonable suspicion for an investigative detention, an anonymous tip must be

―suitably corroborated or otherwise exhibiting sufficient indicia of reliability.‖ Gilmore, 323

S.W.3d at 258 (citing J.L., 529 U.S. at 270). Police can provide other indicia of reliability by

independent corroboration of the informant’s information. Id. (citing Illinois v. Gates, 462 U.S.

213, 236 (1983); Cassias v. State, 719 S.W.2d 585, 590 (Tex. Crim. App. 1986) (op. on reh’g)).




                  Q.     . . . you actually spoke with the informant, and his name was Jacob Donahue; is
        that correct?
                  A.     Correct.
                  Q.     Mr. Donahue is obviously identified or was identified at the time; is that correct?
                  A.     Yes.
                  Q.     And you thought he was credible; is that correct?
                  A.     Yes.
                  Q.     Did he relay information to you concerning the fact that his girlfriend, Jamie Lea
        Wilson, was engaged in drug activity?
                  A.     Yes.
                  ....
                  Q.     The - and part of that also the - the informant, that you originally listed as
        anonymous because you didn’t want to disclose the person -
                  A.     Yes.
                  Q.     - for h[is] safety reasons -
                  A.     Yes.
                  Q.     But, actually, it was just uniden [sic] - it was just actually at the time was not
        disclosed.
                  A.     That’s correct.
                  Q.     Let me refer to that for the record. He was disclosed and you knew who he was
        at the time. Right?
                  A.     Yes. When the report was done.
                  Q.     It just stated he was anonymous and a supplement clarified that; is that correct?
                  A.     Correct.

         This testimony gave rise to the court’s questioning of Brownlow in which he stated he did not know
Donahue. Based on this record, the trial court could have found Donahue was anonymous at the time of the call,
except for his identification as Wilson’s boyfriend. In any event, the State does not argue that Donahue was a named
informant, but argues the information from the informant was corroborated by Wilson’s suspicious behavior.

                                                         9
            Brownlow claimed he found Donahue’s tip reliable because ―he was her boyfriend so I

guess he had intimate knowledge of [Wilson’s] activities. He knew exactly what road she was on,

knew what time frame, . . . . He knew there’d be two females in the vehicle. It was a gold Chevy

Blazer, which are pretty rare.‖ In general, corroboration of mere innocent details is insufficient to

corroborate an anonymous tip. Id. Brownlow’s independent corroboration must establish that

the anonymous tip is ―reliable in its assertion of illegality, not just in its tendency to identify a

determinate person.‖ Id. (quoting J.L., 529 U.S. at 271). ―[T]he corroboration of details that are

easily obtainable at the time the information is provided, and which do not indicate criminal

activity, will not lend support to the tip.‖ Id. at 258–59. The trial court could conclude that the

testimony recited above only established corroboration of innocent details.

            This case is remarkably similar to the facts of Smith v. State, 58 S.W.3d 784 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d). In Smith, police received a tip from Smith’s

girlfriend3 that Smith would have heroin in his vehicle northbound on Highway 6 between 6:00

and 8:00 p.m. She described the vehicle, license number, and explained Smith would have two

passengers. Shortly after 6:00, Smith was in the vehicle and place as described with two

passengers; he was stopped and heroin was found. Even though the informant had given

information in the past, it could not be verified that it was reliable. The court thought it was

relevant that the informant had not explained the reason for turning in this information on her

boyfriend or whether she could have an ulterior motive. Id. at 791.
3
    The girlfriend had previously given the police ―information.‖

                                                            10
         As in this case, the State argued that the tip had been corroborated, but the Fourteenth

Court held that the corroboration was of easily obtainable details and did not furnish a basis for

reasonable suspicion. Id. at 792 (citing Garcia v. State, 3 S.W.3d 227, 235 (Tex. App.––Houston

[14th Dist.] 1999, no pet.) (accurate description of subject’s location and appearance is reliable in

identifying person accused, but does not show tipster has knowledge of concealed criminal

activity)). We recited in Gilmore that an innocent detail may corroborate an anonymous tip when

the tip correctly predicts future movements of the suspect if the travel involves unusual itineraries.

Gilmore, 323 S.W.3d 259. When the travel itinerary is more commonplace, knowledge of a

suspect’s travel plans may not be sufficient. Id. (citing Smith, 58 S.W.3d at 793) (finding no

reasonable suspicion for various reasons, including that travel was down ―well traveled corridor‖).

There is no testimony that the highway route taken by Rossignol and Wilson was unusual.

         However, the State argues that the following transcript established corroboration of travel

plans:

               Q.     In the -- in the time that you were going to go try to investigate
         Ms. Wilson traveling with narcotics, there was further conversation between
         Mr. Donahue and Ms. Wilson in regard to trying to get her to go and stop and get a
         hamburger and try to slow her down a little bit; is that right?

                A.      Correct.

                Q.      And she actually did that; is that right?

                A.      Correct.




                                                  11
              Q.     And she had food there, including a hamburger, when you actually
       made the stop of the vehicle.

              A.      Yeah. Ms. Rossignol was eating a Sonic burger. I told her to go
       back to the vehicle and she started eating a Sonic burger.

There is no indication that the burger belonged to Wilson or that Rossignol and Wilson had in fact

stopped at Sonic after Donahue’s tip.

       Moreover, ―[w]e look only at the facts known to the officer at the inception of the stop; an

initially unlawful stop is not validated by the discovery of criminal activity. Tanner v. State, 228

S.W.3d 852, 855 (Tex. App.—Austin 2007, no pet.) (citing Wong Sun v. United States, 371 U.S.

471, 484 (1963). Because Brownlow did not discover the existence of the burger until after

initiation of the investigative detention, this information could not be used to corroborate the tip.

Similarly, we disregard evidence cited by the State regarding Wilson’s mannerisms after the

detention, as well as Brownlow’s testimony that Donahue’s tip was corroborated because he knew

―the exact amount of drugs she was carrying.‖

       Viewing the evidence in the light most favorable to the trial court’s ruling, we give

deference to the trial court’s fact-finding that the anonymous tip by Donahue was not sufficiently

corroborated prior to initiation of the investigative detention.

               3.      Other Evidence of Reasonable Suspicion

       Brownlow testified that the residence ―had been abandoned – or unoccupied for some

time,‖ and was a ―frequent[] target[] of burglary and theft.‖           During cross-examination,



                                                  12
Brownlow admitted that he had no knowledge of whether the house was currently occupied, and

we have stated before that ―[t]he fact that there had been [criminal] activity in the area, but not

known to have been committed by the defendant, is not sufficient to corroborate an anonymous

tip.‖ Johnson v. State, 146 S.W.3d 719, 722 (Tex. App.—Texarkana 2004, no pet.).

       After reviewing the record, we conclude deference is warranted to the trial court’s

determination that the State failed to meet its burden of proof to demonstrate Brownlow had

reasonable suspicion prior to initiation of the investigative detention.

IV.    CONCLUSION

       We affirm the trial court’s judgment.




                                               Jack Carter
                                               Justice

Date Submitted:        March 9, 2011
Date Decided:          March 18, 2011

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