                            NUMBER 13-07-00045-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOHN WALTER CALDWELL,                                                       Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 284th District Court
                       of Montgomery County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rodriguez

      Following the denial of his motion to suppress evidence, appellant, John Walter

Caldwell, pleaded guilty to the offense of possession of a controlled substance. See TEX .

HEALTH & SAFETY CODE ANN . § 481.115(c) (Vernon 2003).           The trial court certified

Caldwell's right to appeal and assessed punishment at twenty years' confinement in the
Texas Department of Criminal Justice-Institutional Division. By three issues, Caldwell

appeals the trial court's denial of his motion to suppress. We reverse and remand.

                                      I. SUPPRESSION HEARING

        At the hearing on his motion to suppress evidence, Caldwell asserted that the police

seized crack cocaine in violation of the United States and Texas Constitutions. See U.S.

CONST . AMEND . IV; TEX . CONST . art. I, § 9. The crack cocaine was found when police

entered a tool shed on the premises of Caldwell's residence without first obtaining a

warrant. At the hearing, the State presented the testimony of Detectives Carl Jones and

Ricky Cathey; Caldwell presented the testimony of Walter Curtis Hightower.

        Detective Jones testified that he received a call from an anonymous person1 who

informed him that a black male, wearing a black hat, black shirt, white undershirt, and blue

jeans would have crack cocaine in his right front pocket at a house located at 407 Marlin

Street. Detective Jones stated that after receiving the call, he picked up Detective Cathey

and proceeded to the location.

        Detective Jones further testified that, when they arrived, some men were standing

around in the driveway area of the residence. Detective Jones saw Caldwell standing

between two buildings, wearing clothing identical to that described by the caller. He

testified that after they exited their vehicle, Caldwell "made a movement towards a [tool

shed] behind the house." Before Caldwell stepped into the tool shed, Detective Jones saw

that Caldwell had his hand in his right front pocket, which concerned him "because my

person that had given me the information advised me that the narcotics would be in the


        1
         On cross-exam ination by the State, W alter Curtis Hightower adm itted that he was the person who
called Detective Jones to report that Caldwell had crack cocaine in his pocket.

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right front pocket." Specifically, Detective Jones saw Caldwell pull his hand out of his

pocket before he went into the tool shed. Detective Jones reached the tool shed as

Caldwell exited, then "stepped up into the [tool shed]" to "make sure there was nobody else

inside" and "directed [Caldwell] towards Detective Cathey." Detective Jones testified that

"there was a toolbox inside. And I just glanced down, and you could see the cellophane

narcotics." He retrieved the narcotics and arrested Caldwell.

       Detective Cathey testified that Detective Jones told him what the suspect would be

wearing, and that after arriving at the location, he saw that Caldwell was wearing clothing

as described. Detective Cathey explained that, based on Detective Jones's information

that Caldwell had crack in his front right pocket, he focused his attention on Caldwell to

make sure that he did not throw the crack away. Detective Cathey stated:

       At that point when we pulled up he was starting to walk away from us, and
       his right hand went into his right pocket. . . . He walked to a–I would say it's
       like a detached garage with a door facing north. At that point he started
       entering the door. And I saw his right hand come out and him disappear
       inside.

According to Detective Cathey, he stayed with the three or four individuals who were

standing in the driveway, while Detective Jones followed Caldwell to the tool shed, and by

the time he reached it, Caldwell was exiting. Detective Jones sent Caldwell to where

Detective Cathey was standing, then entered the tool shed. When he exited the tool shed,

he had several rocks of crack cocaine that were wrapped in a plastic bag.

       After hearing the evidence, the trial court denied Caldwell's motion to suppress.

Caldwell subsequently pleaded guilty and was sentenced to twenty years' confinement.

This appeal ensued.



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                     II. APPLICABLE LAW AND STANDARD OF REVIEW

      An individual is guaranteed the right to be secure from unreasonable searches.

U.S. CONST . amend IV; TEX . CONST . art. I, § 9. A warrantless search is presumptively

unreasonable under the Fourth Amendment, unless a recognized exception to the warrant

requirement exists. United States v. Karo, 468 U.S. 705, 717 (1984); Fonseca v. State,

881 S.W.2d 144, 149 (Tex. App.–Corpus Christi 1994, no pet.). The State may validate

a warrantless search under the doctrine of exigent circumstances, which is a recognized

exception to the warrant requirement. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim.

App. 2007); see Fonseca, 881 S.W.2d at 149 (providing that "[t]he State bears the burden

of establishing the legality of a warrantless search or seizure"). Under the exigent

circumstances doctrine, the State may justify a warrantless search or entry of a specific

location if it shows that: (1) probable cause existed at the time the search was made; and

(2) exigent circumstances existed, which made the procuring of a warrant impracticable.

Gutierrez, 221 S.W.3d at 685 (providing that "if police have probable cause coupled with

an exigent circumstance . . . the Fourth Amendment will tolerate a warrantless search");

see Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006) (setting out that "a

warrantless entry into a residence is considered equivalent to a warrantless search");

McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991) (en banc). Probable cause

is the accumulation of facts which, when viewed in their totality, would lead a reasonable

police officer to conclude, with a fair probability, that a crime has been committed or is

being committed. Parker, 206 S.W.3d at 599.




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       An anonymous telephone call, standing alone, will not provide sufficient probable

cause for a warrantless search. Rojas v. State, 797 S.W.2d 41, 43 (Tex. Crim. App. 1990)

(en banc); Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim. App. 1984) (en banc)

(providing that an anonymous phone call, without corroboration, will never provide sufficient

facts that would authorize a warrantless search). "Moreover, mere corroboration of details

that are easily obtainable at the time the information is provided will not support a finding

of probable cause." Parish v. State, 939 S.W.2d 201, 203 (Tex. App.–Austin 1997, no

pet.). However, through independent corroboration of the informant's information, the

police can provide other indicia of the informant's reliability. Elardo v. State, 163 S.W.3d

760, 767 (Tex. App.–Texarkana 2005, pet. ref'd); Parish, 939 S.W.2d at 203. Indicia of

reliability of the informant's tip include the extent of detail that is provided and whether

future events are predicted. See Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex. Crim.

App. 1984) (en banc); see also Illinois v. Gates, 462 U.S. 213, 244-46 (1983); Rojas, 797

S.W.2d at 44 (setting out that anonymous tip did not provide information based on special

or personal knowledge).

       Whether the trial court properly denied a defendant's motion to suppress is a mixed

question of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);

Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). "When reviewing a trial

court's ruling on a mixed question of law and fact (as is the determination of probable

cause in the pretrial suppression hearing in this case), the court of appeals may review de

novo the trial court's application of the law of search and seizure to the facts of the case."

Estrada, 154 S.W.3d at 607. Although "[w]e review de novo the application of the law to



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facts . . . we also afford almost total deference to the trial court's evaluation of the credibility

and demeanor of the witnesses who testified at the pre-trial hearing." Id. "The question

of whether a specific search or seizure is 'reasonable' or supported by probable cause

under the Fourth Amendment is subject to de novo review." Dixon v. State, 206 S.W.3d

613, 616 (Tex. Crim. App. 2006). The evidence must be viewed in the light most favorable

to the trial court's ruling when the trial court makes no explicit findings of historical fact, as

in this case. Id. We must uphold the trial court's ruling if it is correct under any theory of

law applicable to the case. Estrada, 154 S.W.3d at 607.

                                          III. ANALYSIS

       By his first issue, Caldwell asserts that, in considering the totality of the

circumstances, the police did not have the required probable cause to justify the

warrantless entry into the tool shed. The State argues that the detectives did have

probable cause to enter the tool shed because "[Caldwell's] actions corroborated the

phoned-in tip."

       Detective Jones testified that he received a call from "a person" who informed him

that Caldwell would have crack cocaine in his right front pocket and would be at 407 Marlin

Street. Detective Jones did not identify the person who supplied this information, and the

State did not present any testimony or evidence regarding the person's reliability. See

Rojas, 797 S.W.2d at 43. Relying on Lunde v. State, the State argues that Caldwell's

actions at the scene corroborated the information provided by the informant. See 736

S.W.2d 665, 667 (Tex. Crim. App. 1987). However, in Lunde, the State provided evidence

of the informant's reliability, while in this case there was none. See id. ("As was the case



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in Whaley v. State, 686 S.W.2d 950 (Tex. Crim. App. 1985), the informant was one who

had given reliable and credible information in the past, resulting in criminal convictions.").

Standing alone, the tip in the present case completely lacks the necessary indicia of

reliability. It provides no information from which to conclude the caller was honest or his

information reliable, and gives no indication for the basis of his knowledge of appellant's

criminal activities. See Dowler v. State, 44 S.W.3d 666, 670 (Tex. App.–Austin 2001, pet

ref'd) (explaining that "[a]n accurate description of a subject's readily observable location

and appearance will help the police correctly identify the person whom the tipster meant

to accuse, but does not show that the tipster has knowledge of concealed criminal

activity"). Therefore, the State was required to provide other indicia of the informant's

reliability. See Whaley, 686 S.W.2d at 951 ("[A] deficiency in one [element (reliability,

veracity or basis of knowledge)] may be compensated for, in determining the overall

reliability of a tip . . . by some other indicia of reliability."); Elardo, 163 S.W.3d at 768.

       The State urges this Court to conclude that the detectives "were able to corroborate

the key detail of the tip–that the cocaine would be in [Caldwell's] front right pocket–by

observing [Caldwell] stuff his hand into the very pocket the tipster said the drugs would be

found and then heading towards the tool shed." We decline to do so. See Parker, 206

S.W.3d at 597 ("[W]hen the question is probable cause to cross the threshold of a private

residence, probable cause may point to the location, but not necessarily a specific

person."). The fact that Caldwell put his hand in his right pocket as he entered the tool




                                                7
shed was not sufficient to corroborate the tip that Caldwell had drugs in his pocket thereby

authorizing a warrantless entry into the tool shed.2 See Rojas, 797 S.W.2d at 44.

         Furthermore, even if the fact that Caldwell put his hand in his right pocket may have

led Detective Jones to suspect that Caldwell had drugs in his pocket, Detective Jones did

not search Caldwell's right pocket, but instead entered the tool shed. Hughes v. State, 24

S.W.3d 833, 838 (Tex. Crim. App. 2000) (providing that "[p]robable cause requires more

than mere suspicion"). Therefore, considering the totality of the circumstances, the

tipster's information was not sufficiently corroborated by the police. See Rojas, 797

S.W.2d at 43; see also Hall v. State, 74 S.W.3d 521, 525 (Tex. App.–Amarillo 2002, no

pet.) ("[T]he tip must be corroborated not only as to the identity of the individual sought to

be accused but also as to the improper nature of his conduct.").

         Based on our review of the record, we conclude that the evidence, when viewed in

the light most favorable to the trial court's ruling, is not enough to establish that there was

          2
            An anonym ous tip m ust be corroborated by facts before the officers m ay conduct the warrantless
search. Compare Glass v. State, 681 S.W .2d 599, 601 (Tex. Crim . App. 1984) (en banc) (concluding that
officers did not have probable cause to either arrest or search appellant's vehicle based on the following facts:
(1) an anonym ous caller told dispatch that the occupants of two autom obiles were shooting at each other at
a certain intersection in town; (2) officers stationed them selves near the intersection but did not see any
"unusual activity occurring or taking place, such as persons in one vehicle shooting at persons in another
vehicle"; (3) the officers observed the vehicles which the anonym ous tipster described driving near the
intersection; (4) the officer testified that the passenger "looked at him " and "seem ed kind of nervous"; (5) the
passenger turned away from the officer as he looked at the passenger; and (6) the passenger m ade the
officer nervous) with Eisenhauer v. State, 678 S.W .2d 947, 955 (Tex. Crim . App. 1984) (en banc) (applying
the totality of the circum stances approach to a warrantless arrest and finding that even if based on an
anonym ous inform ant, the officer had a substantial basis to conclude there was probable cause to arrest the
appellant based on the following facts: (1) the inform ant "gave the officer a fair detailed physical description
of the appellant and his clothing, giving appellant's nam e, and predicting his future actions that day and the
purpose of appellant's trip"; (2) then police corroborated "every facet of the inform ation given [to police] by the
inform er except whether appellant had accom plished his m ission and the cocaine was on his person or in his
bag"; and (3) appellant's actions "in the airport after arrival, albeit m ostly innocent, together with his reactions
when he learned the officers believed he possessed cocaine brought from Miam i. . . ."); Illinois v. Gates, 462
U.S. 213, 244-46 (1983) (finding that an officer's independent investigative work corroborated an anonym ous
letter's predictions and that the "letterwriter's accurate inform ation as to the travel plans of each of the Gateses
was of a character likely obtained only from the Gateses them selves, or from som eone fam iliar with their not
entirely ordinary travel plans").

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probable cause for Detective Jones to believe with a fair probability that a crime had been

or was being committed in the tool shed. See Parker, 206 S.W.3d at 599, 601. Because

Detective Jones's warrantless entry into Caldwell's tool shed was unreasonable, we

conclude that the trial court abused its discretion when it denied Caldwell's motion to

suppress. See Parish, 939 S.W.2d at 203; see also Gutierrez, 221 S.W.3d at 685-86 ("If

the State does not adequately establish both probable cause and exigent circumstances,

then a warrantless entry will not withstand judicial scrutiny."). We sustain Caldwell's first

issue. Moreover, we need not address Caldwell's second and third issues because they

are not dispositive. See TEX . R. APP. P. 47.1.

                                     IV. CONCLUSION

       We reverse and remand for proceedings consistent with this opinion.


                                                    NELDA V. RODRIGUEZ
                                                    Justice
Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 21st day of August, 2008.




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