           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. PD-1304-08



                         PHILLIP JASON HALL, Appellant

                                           v.

                              THE STATE OF TEXAS

           ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE TENTH COURT OF APPEALS
                          JOHNSON COUNTY

      K EASLER, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. P RICE, J., filed a
concurring opinion in which J OHNSON and H OLCOMB, JJ., joined. K ELLER, P.J.,
dissented.

                                    OPINION

      At a suppression hearing, Phillip Jason Hall challenged the reliability of a LIDAR

device that Officer Floyd Lee Phariss used to measure Hall’s speed. Hall claimed that,

because the State failed to prove the reliability of the LIDAR device, Officer Phariss’s

decision to stop him for speeding was not supported by probable cause. The Waco Court of

Appeals held that the trial judge erred by failing to hold a Rule 702 Kelly gatekeeping
                                                                                    HALL—2

hearing to evaluate the device’s reliability.1 We disagree. Rule 702 does not apply to

suppression hearings.2 However, we affirm the court of appeals’s judgment because it

correctly determined that the stop was not supported by probable cause.

                                        Background

       In July 2006, Officer Phariss stopped Hall without a warrant for speeding in the City

of Venus on Highway 67. The Light Detection and Ranging (LIDAR) device that Officer

Phariss used to monitor traffic indicated that Hall was traveling eleven miles per hour over

the sixty-five mile-per-hour speed limit. While talking with Hall, Officer Phariss noticed that

Hall’s breath smelled of alcohol. Officer Phariss’s partner, Officer John Crane, ordered Hall

to perform several field sobriety tests. Based on Hall’s performance on the tests, Officers

Phariss and Crane concluded that Hall was intoxicated and arrested him for driving while

intoxicated (DWI).

       Hall was charged with DWI. Before his jury trial, Hall filed a motion to suppress.

He claimed that the State was required to prove, by clear and convincing evidence, that

Officer Phariss had probable cause or reasonable suspicion to stop Hall. In support of his

claim, Hall cited our decision in Kelly v. State.3 In that case, we held that, under Rule 702



       1
           Hall v. State, 264 S.W.3d 346, 350 (Tex. App.—Waco 2008).
       2
           Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002).
       3
         824 S.W.2d 568 (Tex. Crim. App. 1992); see also Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) (adopting the same reliability and relevance
standard).
                                                                                         HALL—3

of the Texas Rules of Evidence, the proponent of scientific evidence must show, by clear and

convincing evidence, that the proffered evidence is reliable before it can be admitted into

evidence.4

       During the pretrial suppression hearing, Hall expanded on the argument presented in

his motion. He maintained that for the results of the LIDAR device to be admissible at trial

under Kelly, a scientific expert must testify that the machine is “scientifically correct and

reliable.” He then asked the judge to suppress “the probable cause” and grant his suppression

motion. The State responded, contending first that the standard for admissibility of scientific

evidence is not applicable to motions to suppress and that the laser device does not constitute

novel scientific evidence. The State also argued that the good faith exception to the warrant

requirement is applicable in this case.

       [T]he standard here is reasonable suspicion. We’re not getting to any level
       higher than that. All [Officer Phariss] has to be able to testify to is that he
       reasonably suspected, upon the results, that [Hall] was speeding. That’s the
       same reason why, legally we’re allowed to have a good faith exception on a
       resident search warrants [sic].” As long as the officer reasonably relies on
       what’s provided to him, then they’re allowed to proceed further and
       investigate, and that’s exactly what he did here.

       Testifying about his use of the LIDAR device on the night that he stopped Hall,

Officer Phariss stated that, before his shift he turned on the device and that it initiated a self-

test process. Officer Phariss stated that the device indicated that it passed all the “functions.”

Officer Phariss explained that there is a little sight on top of the device; “[i]nside of that site’s


       4
           Id. at 572.
                                                                                   HALL—4

[sic] a small red dot. And once you place that red dot on the vehicle and you push the trigger

switch, it will send out a laser and that will read the speed of the vehicle . . . .” Officer

Phariss stated that he was not certified to use the device and that he was uncertain whether

anyone maintained the device to ensure its reliability and accuracy. Finally, Officer Pharris

stated that the LIDAR device provided the sole basis for stopping Hall.

       Without entering any factfindings or conclusions of law, the trial judge denied Hall’s

motion. The jury later found Hall guilty, and the trial judge sentenced Hall to 180 days in

jail and assessed a $1,000 fine. The judge then suspended Hall’s sentence and placed him

on probation for two years.

                                      Court of Appeals

       In his sole point of error, Hall argued in the Waco Court of Appeals that Officer

Phariss did not have probable cause to stop him for speeding because the State failed to prove

that the LIDAR device was reliable.5 Over Chief Justice Gray’s dissent, the court of appeals

agreed with Hall. The court determined that, under Rule 702, as interpreted in Kelly v. State,

the State failed to prove the reliability of LIDAR technology.6 In making this determination,

the court observed that there are no Texas authorities confirming the reliability or

admissibility of LIDAR technology.7       As a result, the court concluded “that LIDAR



       5
           Hall, 264 S.W.3d at 348.
       6
           Id. at 350.
       7
           Id.
                                                                                    HALL—5

technology is novel scientific evidence which may be admissible only after its reliability has

been judicially determined in a “full-blown [Rule 702] ‘gatekeeping’ hearing under Kelly.” 8

Finally, “[n]otwithstanding the admissibility of LIDAR evidence,” the court rejected the

State’s argument that the LIDAR device confirmed Officer Phariss’s observation that Hall

was speeding.9 Officer Phariss offered no testimony suggesting that he, independent of the

LIDAR device, observed Hall speeding.10 The court then reversed the trial court’s judgment,

holding that the trial judge “abused [his] discretion by denying Hall’s pretrial suppression

motion because the State failed to prove the reliability of the LIDAR technology . . . .” 11 As

a result, the court reversed and remanded the case for proceedings consistent with its

opinion.12

                        State’s Petition for Discretionary Review

       We granted the State’s petition for discretionary review to decide whether the court

of appeals erred by holding that the trial judge was required to hold a Rule 702 Kelly

gatekeeping hearing “to determine the scientific reliability of information relied upon by the

arresting officer as probable cause for the stop.”




       8
            Id.
       9
            Id.
       10
             Id.
       11
             Id.
       12
             Id.
                                                                                      HALL—6

                                  Analysis and Disposition

       Rule 702, which governs the admissibility of expert testimony at trial:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact issue, a witness qualified
       as an expert by knowledge, skill, expertise, training, or education may testify
       thereto in the form of an opinion or otherwise.13

       As mentioned above, when interpreting Rule 702 in Kelly, we held that the trial judge,

as the gatekeeper, must determine whether an expert’s testimony on a scientific theory is

reliable and relevant to the factfinder.14

       We conclude that the court of appeals erred in applying Rule 702. Texas Rule of

Evidence 101, which defines the title and scope of the rules, specifically provides that the

Rules of Evidence, with the exception of those that concern privileges, do not apply to

suppression hearings.15 Thus, evidence that is otherwise inadmissible at trial under the Rules

of Evidence may well be admissible at a suppression hearing. So in this case, because Rule

702’s requirements, as set out in Kelly, do not apply to suppression hearings, there is no

threshold admissibility determination under the Rules of Evidence. Therefore, we hold that

the court of appeals erred to conclude that the trial judge, in ruling on the admissibility of the


       13
         T EX. R. E VID. 702 (Vernon 2003) (eff. Mar. 1, 1998) (originally promulgated in
1986 in the Texas Rules of Criminal Evidence).
       14
            Kelly, 824 S.W.3d at 572.
       15
         Granados, 85 S.W.3d at 227; see also United States v. Outlaw, 134 F. Supp.
807, 810 (W.D. Tex. 2001) (“A Daubert hearing is the wrong procedural vehicle through
which to challenge the reliability of a canine alert” for purposes of determining whether a
law enforcement official had probable cause to detain a passenger on a Greyhound bus.).
                                                                                    HALL—7

LIDAR technology, as utilized in this case, was required to hold a Rule 702 Kelly

gatekeeping hearing to determine the reliability of that technology.

       Next, we turn to the court of appeals’s disposition of the case. The court ultimately

ruled that the evidence did not establish probable cause.16 Probable cause exists when the

facts and circumstances, based on reasonably trustworthy information, are sufficient to

warrant a reasonable person to believe that a crime has been committed.17 “[P]robable

cause[] is dependent upon both the content of information possessed by police and its degree

of reliability.” 18 The information used to establish probable cause must be more reliable than

that used to establish reasonable suspicion.19 Here, the court of appeals concluded that the

State’s failure to establish the reliability of LIDAR technology under Kelly resulted in the

State’s failure to satisfy probable cause’s “reasonably trustworthy information” requirement.

So while we have already concluded that the court of appeals erred to require a Kelly hearing,

we must ask whether it erred in holding that the trial judge’s decision to deny Hall’s

suppression motion was wrong. We conclude that the court of appeals did not err. First, as

noted by the court of appeals, there was no evidence that the LIDAR device was used to

confirm Officer Phariss’s independent, personal observation that Hall was speeding. Second,


       16
            Hall, 264 S.W.3d at 350.
       17
         Ornelas v. United States, 517 U.S. 690, 696 (1996) (citing Brinegar, 338 U.S. at
175-76); Adams v. Williams, 407 U.S. 143, 148 (1972).
       18
            Alabama v. White, 496 U.S. 325, 330 (1990).
       19
            Id.
                                                                                      HALL—8

the record reveals that there was absolutely no evidence to show that use of LIDAR

technology to measure speed supplies reasonably trustworthy information or that the trial

judge took judicial notice of this fact, as well as his basis for doing so. As a result, the State

failed to establish that Officer Phariss, who relied solely on LIDAR technology to conclude

that Hall was speeding, had probable cause to stop Hall. Our holding today is limited to the

facts of this case. It is likely that in some future case, it will become necessary for a court

to decide what quantum or quality of information is necessary establish the reliability (i.e.,

reasonable trustworthiness) of LIDAR technology for measuring speed when a defendant

challenges the reliability of that information to defeat probable cause at a pretrial suppression

hearing.

                                          Conclusion

       The court of appeals erred to hold that a Rule 702 Kelly gatekeeping hearing is

required to show the reliability of LIDAR technology to measure speed at a hearing on a

motion to suppress. Nevertheless, the court of appeals correctly held that the trial judge

abused his discretion when denying Hall’s suppression motion because there was no evidence

that LIDAR technology, as used in this case, supplied probable cause for the stop. The court

of appeals’s judgment is therefore affirmed.




DATE DELIVERED: September 16, 2009
PUBLISH
