                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                                   OPINION
                                              No. 04-13-00701-CR

                                                Jessica PINEDA,
                                                    Appellant

                                                         v.

                                             The STATE of Texas,
                                                   Appellee

                     From the 216th Judicial District Court, Kendall County, Texas
                                        Trial Court No. 5449
                            Honorable N. Keith Williams, Judge Presiding 1

Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 13, 2014

REVERSED AND REMANDED

           Jessica Pineda appeals her conviction for possession of cocaine in an amount of less than

one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). Because we hold

that the trial court erred by denying her motion to suppress, we reverse the trial court’s judgment

and remand the cause for further proceedings consistent with this opinion.



1
  The Honorable N. Keith Williams, presiding judge of the 216th Judicial District Court, Kendall County, Texas,
presided over Pineda’s plea of guilty and placed her on deferred adjudication. The Honorable Stephen B. Ables, sitting
by assignment, heard and denied Pineda’s motion to suppress.
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                                           BACKGROUND

       Based on an anonymous tip, a Boerne City police officer made an investigatory stop of

Pineda’s vehicle. After Pineda consented to a search of her vehicle, the officer discovered cocaine.

Pineda moved to suppress all the evidence arising from the investigatory stop, arguing that the

officer stopped her vehicle in violation of the Fourth Amendment because the officer lacked

reasonable suspicion. Pineda appeals the trial court’s denial of her motion to suppress.

       Pineda filed a pretrial motion to suppress evidence. The trial court held a hearing on the

motion, during which it heard the arguments of counsel, but no live testimony. Instead, the facts

stated in the officer’s complaint were stipulated. The complaint recited the following:

               On Friday April 27, 2012 at approximately 1235 hours, I was
               dispatched to Toudanines Cleaners located at 1430 South Main in
               reference to solicitors on the property trying to sell stuff out of the
               trunk of their vehicle. The caller advised dispatch that the subjects
               were in a gray 4 door Grand Am with a possible license plate of
               CNBL621. Dispatch also advised that the caller had asked the
               solicitors to leave and they were leaving the location heading toward
               the back of the complex but wanted the solicitors to be checked out.

               While en route to Toudanines, I observed a Gray Pontiac Grand Am
               bearing TX LP #CN8BL621, traveling north bound in the 1300
               block of South Main. I safely made a U-turn and began to follow the
               vehicle that had turned into the shopping center located at 1369
               South Main. I activated my emergency lights and the vehicle came
               to a stop in the parking lot of Jiffy Lube located at 1345 South Main.

               I contacted the driver of the vehicle who I later identified as Ryan
               . . . . As I approached the vehicle, I noticed it was occupied by two
               other subjects later identified as Jessica Pineda . . . and Dominic. . . .
               While speaking with Ryan I observed Jessica to be nervous and kept
               looking down toward the center console and the floor of the car. I
               asked Ryan if I could search the vehicle and he stated the vehicle
               belonged to Jessica. I asked Jessica if I could search the vehicle and
               she stated I could.

               I conducted a search of the vehicle. I located a teal in color Doral
               Cigarette box located in the center console of the vehicle. Inside of
               the cigarette box was a metal Tecate Bottle cap that had been
               pinched together. I noticed there was a small baggie enclosed inside
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               of bottle cap. I pried open the bottle cap and located a small clear
               1/2" by 1/2" plastic baggie that contained a white powdery substance
               in it.

               I collected the white baggie and contacted Jessica. I asked Jessica
               who the metal bottle cap and the clear plastic baggie belonged to.
               Jessica informed me that it was her. I asked Jessica what the white
               powder was in the clear plastic baggie. Jessica stated it was cocaine.
               I informed Jessica she was being placed under arrest for Possession
               of a Controlled Substance. The substance field tested positive for
               cocaine.

       The State argued that the officer had reasonable suspicion to believe that Pineda had

violated a Boerne city ordinance that makes it unlawful for:

               [A]ny peddler, solicitor or vendor to engage in the business of
               selling, displaying, offering for sale of any food, beverages, goods,
               merchandise or Services of any kind within the City without first
               obtaining a permit from the City Manager or his duly authorized
               representative as provided for in the chapter.

Boerne, Tex., Ordinance 2012-12 Mobile Food Vendors, § 15-58 (April 24, 2012). The trial court

denied Pineda’s motion to suppress. In its written findings of fact and conclusions of law, the court

found that “a caller reported to the Boerne Police Dispatch that solicitors were attempting to sell

property out of the parking lot of Toudanines Cleaners.” The court found that the caller “personally

observed” and “gave a description of the suspected wrongdoing.” The court found that the officer

“initiated a traffic stop to investigate whether [Pineda] was soliciting property out of her vehicle.”

It concluded that Pineda “was a possible ‘Solicitor’ as defined in Ordinance 2012-12”; that Pineda

“was possibly ‘soliciting’ property out of her vehicle as defined in Ordinance 21012-12”; and

Pineda’s “alleged conduct did not fall within a permit exception defined in Ordinance 2012-12.”

The court concluded that the officer “had enough articulable facts based on the information from

the caller and from his own observations to conduct a investigatory stop to determine if the activity

of the defendant was related to crime.” Following the denial of her motion to suppress, Pineda pled

guilty pursuant to a plea bargain and was placed on deferred adjudication community supervision.
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                                            DISCUSSION

       Pineda argues the trial court erred by denying her motion to suppress because the arresting

officer lacked reasonable suspicion to make an investigatory stop of her vehicle. She argues that

the officer lacked reasonable suspicion because 1) the anonymous tip was not supported by

sufficient indicia of reliability and 2) the officer lacked specific, articulable facts that Pineda was

engaged in criminal activity.

           A. Standard of Review

       When we review a trial court’s ruling on a motion to suppress, we accord the court’s factual

findings “almost total deference,” provided its determinations are supported by the record. State v.

Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We view the evidence in the light most

favorable to the trial court’s ruling and afford its ruling “‘the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from that evidence.’” Id. (quoting State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). “And when reviewing mixed

questions of law and fact, courts afford great deference to the trial judge’s rulings, provided that

those rulings depend upon evaluations of credibility and demeanor.” Id. “But when credibility and

demeanor [are] irrelevant, courts conduct a de novo review.” Id.

       “[T]he question of whether a certain set of historical facts gives rise to reasonable suspicion

is reviewed de novo.” Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013); e.g., Martinez

v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011) (“The historical facts elicited from Officer

Hurley’s testimony are not at issue; the issue is whether these uncontroverted facts created a

reasonable suspicion such that Officer Hurley was justified in initiating a Terry stop.”). In this

case, the facts were stipulated so the only questions presented to us involve the application of the

law to the facts, and therefore, do not turn on credibility and demeanor. See Garcia v. State, 296

S.W.3d 180, 183 (Tex. App.—Houston [14th Dist.] 2009, no pet.). “A trial court may, however,

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as the trier of fact, draw reasonable deductions and inferences from stipulated facts.” Id. “While

we review the trial court’s decision de novo, we must allow for reasonable deductions from the

stipulation” and defer to the deductions supported by the record. See id. at 184.

             B. Reasonable Suspicion

         To justify the officer’s warrantless stop of Pineda’s vehicle, the State was required to prove

the officer had reasonable suspicion that the vehicle’s occupants were violating the law. See Ford

v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). An officer has reasonable suspicion if he

has specific, articulable facts that, when combined with rational inferences from those facts, would

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

criminal activity. Wade, 422 S.W.3d at 668. “To support a reasonable suspicion, the articulable

facts must show ‘that some activity out of the ordinary has occurred, some suggestion to connect

the detainee to the unusual activity, and some indication that the unusual activity is related to

crime.’” Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (emphasis omitted)

(quoting Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)). This standard is an objective

one, and the court will take into account the totality of the circumstances in order to determine

whether a reasonable suspicion existed for the stop. Martinez, 348 S.W.3d at 923.

             C. Did the totality of the circumstances known to the arresting officer justify an
                investigatory stop of Pineda’s vehicle?

         The arresting officer did not personally observe Pineda engage in any unusual or criminal

activity. Thus, the validity of the stop rests entirely on whether the anonymous tip relayed to the

officer provided him with specific, articulable facts that would justify an investigatory stop. 2




2
  Unless an anonymous tip is supported by sufficient indicia of reliability, it will seldom provide reasonable suspicion
for an investigatory stop. Martinez, 348 S.W.3d at 923. Because we hold that the content of the anonymous tip was
insufficient to give rise to reasonable suspicion, we assume arguendo the tip was reliable.

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        In Martinez v. State, the Court of Criminal Appeals determined whether an anonymous tip

provided an officer with specific, articulable facts from which he could reasonably suspect the

appellant was committing or had recently committed a theft. 348 S.W.3d at 925. The tipster had

reported that he saw a male driving a blue Ford pickup truck stop at an intersection and put two

bicycles in his truck at night. Id. at 922. The officer made an investigative stop of the appellant,

who was driving a green Ford truck that looked blue about three-quarters of a mile from the

reported intersection. Id. The trial court denied the appellant’s motion to suppress, and the court

of appeals affirmed the denial. Id. at 924.

        The Court reversed, holding that the stop was not supported by reasonable suspicion

because there was a “lack of specific, articulable facts suggesting criminal activity was afoot.” 3 Id.

at 926. The Court reasoned that the anonymous tipster did not report contextual factors that

reasonably connected the unusual activity reported by the tipster to a theft, such as witnessing the

suspect use bolt cutters to cut a bike lock or stating that the bikes were taken from someone’s

garage. Id. at 925; Cf. Arguellez v. State, 409 S.W.3d 657, 663-64 (Tex. Crim. App. 2013) (holding

anonymous tipster’s report that appellant was taking photographs of people at a public swimming

pool did not give rise to reasonable suspicion of criminal activity).

        This court followed a similar analysis in Parks v. State, 330 S.W.3d 675 (Tex. App.—San

Antonio 2010, pet. ref’d). In Parks, the detaining officer testified that he observed the appellant

and three other men walking behind some stores in a strip mall. Id. at 677. He testified the men

did not approach or attempt to open any of the building’s doors, nor did they alter their walking

direction or style in response to the officer’s approach. Id. The officer observed that the men had

blue rags hanging from their pockets. Id. Based on his nine years of experience, the officer testified


3
 The Court also held that the anonymous tip was not supported by sufficient indicia of reliability. Martinez, 348
S.W.3d at 926.

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that he knew gang members will fly their colors and he associated the blue rags with gang

members. Id. The officer made an investigative detention and performed a frisk to secure any

weapons on the men. Id. at 677-78. The trial court denied Park’s motion to suppress. Id. at 678.

        This court reversed, holding the investigative detention that led to the discovery of the

weapon was not supported by reasonable suspicion because “[t]he officer’s testimony does not

provide articulable facts linking Parks to any criminal activity or a weapon.” Id. at 683. The court

reasoned that the officer “did not testify that any particular gang identified itself with similar blue

rags, that such a gang was active in the area, or how he acquired his knowledge about the weapon-

carrying propensities of that particular gang.” Id. In addition, the officer “was never questioned

about the basis for his testimony that he associated blue rags with gangs or how he acquired

knowledge that ‘gang members’ carry weapons.” Id.

        Martinez and Parks stand for the proposition that the facts known to the officer must not

merely reflect unusual activity, but unusual activity that is connected to criminal activity. In this

case, the only facts known to the officer about Pineda’s activities in the parking lot were that the

anonymous tipster had witnessed Pineda or her companions attempting to sell “stuff” out of the

trunk of her vehicle in a parking lot and that she had left the parking lot in response to the tipster’s

request. The tipster did not provide any facts suggesting Pineda did not have a permit and the

complaint does not reveal that the officer had any independent knowledge of such facts. The State

contends the officer could have made a reasonable inference from the tip that Pineda did not have

a permit to solicit from the fact that she and her companions did not stay at the parking lot to

present it to the officer. We disagree. The tipster did not ask Pineda or her companions if they had

a permit and did not ask them to wait for an officer to arrive. Instead, the evidence shows that

Pineda and her companions left the parking lot in response to the tipster’s request that they do so.

This evidence does not support an inference that Pineda lacked a permit.
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         The Boerne City ordinance criminalizes solicitation only if the solicitors have not obtained

a permit from the city. Thus, in order to connect the act of solicitation to criminal activity, the

tipster was required to supply some contextual facts showing that Pineda was soliciting without a

permit. See Arguellez, 409 S.W.3d at 663-64; Martinez, 348 S.W.3d at 925; Parks, 330 S.W.3d at

683. No such facts are found in the complaint. 4 Because the tipster did not supply contextual facts

showing that Pineda was soliciting without a permit, we hold that the facts provided by the

anonymous tipster failed to provide reasonable suspicion that Pineda was in violation of the

ordinance. Thus, the investigative stop of Pineda’s vehicle without reasonable suspicion violated

Pineda’s Fourth Amendment rights as a passenger in her own vehicle. See Kothe v. State, 152

S.W.3d 54, 61 (Tex. Crim. App. 2004) (holding that passengers in a vehicle may claim a violation

of the Fourth Amendment based on an unlawful investigatory stop).

              D. Did Pineda’s consent to a search of her vehicle dissipate the taint of the
                 unlawful investigatory detention?

         Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation

of an illegal seizure must be suppressed unless the State shows that there was a break in the chain

of events sufficient to refute the inference that the evidence was a product of the Fourth

Amendment violation. United States v. Portillo-Aguirre, 311 F.3d 647, 658 (5th Cir. 2002); accord

Brick v. State, 738 S.W.2d 676, 681 (Tex. Crim. App. 1987). A person’s consent to a search

following an illegal seizure may sufficiently dissipate the taint of the illegal seizure to permit the



4
  In fact, the complaint does not indicate that either the tipster or the officer suspected that Pineda and her companions
were selling property without a permit; the tipster merely asked the police to “check out” Pineda because she had been
selling “stuff” in the parking lot. Nor did the trial court find that the officer or the tipster suspected Pineda did not
have a permit. But even if they had, the record would still need to contain specific, articulable facts supporting that
suspicion. See Martinez, 348 S.W.3d at 925 (criticizing the court of appeals for making the “conclusory determination
that the unusual activity was related to criminal activity by stating that the officer considered the call to be a report of
theft”); Ford, 158 S.W.3d at 494 (holding that an officer’s conclusory testimony that appellant had followed another
car too closely in violation of the Transportation Code was unsupported by specific, articulable facts, and thus unable
to support reasonable suspicion appellant committed the traffic offense of following another car too closely).

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admission of evidence resulting from the consensual search. Portillo-Aguirre, 311 F.3d at 658. To

show valid consent dissipating the initial illegality, the State must prove: 1) the consent was given

voluntarily, and 2) the consent was an independent act of free will. Id. “Voluntariness focuses on

coercion, and the second prong considers the causal connection between the ‘consent’ and the prior

constitutional violation.” Id.

       To determine whether Pineda’s consent was an independent act of free will, we consider

(1) the temporal proximity of the illegal stop and the consent; (2) the presence of intervening

circumstances; and (3) the purpose and flagrancy of the initial misconduct. Portillo-Aguirre, 311

F.3d at 659; accord Crutsinger v. State, 206 S.W.3d 607, 610–611 (Tex. Crim. App. 2006). The

first factor weighs in Pineda’s favor because the officer’s complaint suggests that Pineda gave her

consent to search soon after the unlawful stop. See United States v. Chavez-Villarreal, 3 F.3d 124,

128 (5th Cir. 1993) (weighing the first factor in appellant’s favor because “[l]ess than 15 minutes

elapsed between the stop and the second search”); Wolf v. State, 137 S.W.3d 797, 805 (Tex. App.—

Waco 2004, no pet.) (weighing the first factor weighed in appellant’s favor because “the patrol-

car videotape and the officers’ testimony at the suppression hearing indicates that there was a close

temporal proximity between the illegal conduct—the extended detention—and the consent.”). The

second factor also favors Pineda because the record does not reveal any intervening circumstances

that might have lessened the taint of the unlawful stop and there is no indication that Pineda felt

free to leave at that time. See Portillo-Aguirre, 311 F.3d at 659; Wolf, 137 S.W.3d at 805. Finally,

the third factor also weighs in Pineda’s favor because there is no recognized exception to the Fourth

Amendment’s protections based only on an anonymous tipster’s request that the police “check

out” a particular person. Cf. Portillo-Aguirre, 311 F.3d at 659 (noting the detaining officer

routinely made extended detentions to “detect evidence of ordinary criminal wrongdoing” without

reasonable suspicion); Wolf, 137 S.W.3d at 806 (“Although not flagrant, the purpose of the
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misconduct was to illegally detain Wolf until an unsubstantiated hunch could be acted upon.”).

We hold that Pineda’s consent to the search of her vehicle did not dissipate the taint of the officer’s

Fourth Amendment violation because her consent was not an independent act of her free will.

           E. Was the denial of Pineda’s motion to suppress harmful?

       The officer’s unlawful stop of Pineda violated her Fourth Amendment rights and the

cocaine and other evidence arising from that detention should have been suppressed. Because the

trial court committed constitutional error by denying Pineda’s motion to suppress, we must reverse

her conviction unless we determine beyond a reasonable doubt that the error did not contribute to

her conviction. See TEX. R. APP. P. 44.2(a). We hold the trial court’s denial of the motion to

suppress was harmful error because it “undoubtedly contributed in some measure to the State’s

leverage in the plea bargaining process and may well have contributed to [Pineda’s] decision to

relinquish [her] constitutional rights of trial and confrontation in exchange for a favorable

punishment recommendation.” Castleberry v. State, 100 S.W.3d 400, 404 (Tex. App.—San

Antonio 2002, no pet.) (citing McKenna v. State, 780 S.W.2d 797 (Tex. Crim. App. 1989)).

                                            CONCLUSION

       We reverse the trial court’s judgment and remand this cause for further proceedings

consistent with this opinion.

                                                    Luz Elena D. Chapa, Justice

Publish




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