      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-99-00793-CR




                                 The State of Texas, Appellant

                                                v.

                                 James Dean Fudge, Appellee



            FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY,
             NO. 517,426, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING




               Appellee James Dean Fudge was charged with driving while intoxicated. See Tex.

Penal Code Ann. § 40.04(a) (West Supp. 2001). He filed a pretrial motion to suppress contending

that the evidence of the offense was discovered during an improper investigative stop. Following a

hearing, the county court at law suppressed the evidence and the State appeals. See Tex. Code Crim.

Proc. Ann. art. 44.01(a)(5) (West Supp. 2001). The issue on appeal is whether the police officer

lawfully stopped appellee based on unsolicited information given to the officer in a face-to-face

manner. We will reverse the order of the county court at law and remand the cause for further

proceedings.
                                            Background

               On October 20, 1998, Tim Pruett, an Austin police officer with eight years’

experience, was in the process of arresting an individual on a traffic warrant at a Texaco convenience

store and gas station located at the intersection of West Ben White and South Congress Avenue.

While Officer Pruett was making the arrest, a taxi cab pulled into the parking area of the store near

Officer Pruett. The cab driver got out of the cab, came over to Officer Pruett, and told him that he

had seen a white pickup truck driving “all over the road,” that the truck “couldn’t stay on the road,”

and that he “believed [the driver] was drunk.”1 Just as the cab driver finished telling Officer Pruett

about the white pickup, he told Officer Pruett, “That’s it right there.” At that moment, Officer Pruett

watched as a white pickup pulled into the parking lot, drove around the back of the store and then

drove back toward the front of the store. As the truck came around to the front of the store, Officer

Pruett stopped the truck and asked appellee, the driver, to step out. Appellee got out of the truck

and grabbed the side of the truck to maintain his balance. Officer Pruett noticed appellee’s eyes were

bloodshot and there was a strong odor of alcohol on his breath. Officer Pruett requested that another

officer give appellee field sobriety tests. After failing the sobriety tests, appellee was arrested for

driving while intoxicated.

               In a pretrial motion, appellee moved to suppress the evidence obtained by the police

contending that Officer Pruett stopped him without having a reasonable suspicion of any unlawful




   1
      The affidavit for warrant of arrest and detention contained in the clerk’s record notes that a
Scott Wesely Cook “residing at 6702 N. Lamar #113 identified the said accused to Officer T. Pruett
as the driver of [a] 1994 Chevy truck.” There is no indication that the affidavit was admitted at the
suppression hearing or that it was considered by the court.

                                                  2
activity. During the pretrial suppression hearing, the only evidence presented was Officer Pruett’s

testimony. He testified that his sole basis for the stop was the unsolicited information provided to

him in a face-to-face manner by the cab driver. He further testified that he did not observe appellee

commit any traffic violation. The State did not elicit any testimony about the cab driver. In its

suppression order, the county court at law court expressly ruled:


       Court finds officer’s testimony is credible but that officer had not sufficient probable
       cause nor reasonable suspicion for the initial detention of defendant as was stated in
       the record.


Accordingly, the trial court suppressed all of the evidence obtained as a result of the stop.


                                              Discussion

                On appeal, the State contends that the county court at law erred in granting the motion

to suppress because the stop did not violate appellee’s rights under the Fourth Amendment to the

United States Constitution, under Article I, section 9 of the Texas Constitution, or under Chapters

14 and 38 of the Texas Code of Criminal Procedure.

                The appropriate standard of review for a suppression ruling is a bifurcated review,

giving almost total deference to the trial court’s findings of fact, but conducting a de novo review of

the court’s application of law to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.

2000) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)); Guzman v. State,

955 S.W.2d 85, 88-89 (Tex. Crim. App. 1999).

               Police 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.

                                                   3
1, 22-26 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). To justify the

investigative detention, the individual officer must have a reasonable suspicion that “some activity out

of the ordinary is occurring or had occurred, some suggestion to connect the detained person with

the unusual activity, and some indication that the activity is related to a crime.” Terry, 392 U.S. at

21-22; Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983); Harris v. State, 913 S.W.2d

706, 708 (Tex. App.—Texarkana 1995, no pet.). The officer must have specific articulable facts

which, in light of his experience and personal knowledge, together with inferences from those facts,

would reasonably warrant the intrusion on the freedom of the person detained for investigation.

Terry, 392 U.S. at 30; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); Comer v. State,

754 S.W.2d 656, 657 (Tex. Crim. App. 1986); Johnson, 658 S.W.2d at 626.

               The reasonableness of a temporary stop turns on the “totality of the circumstances”

in each case. Illinois v. Gates, 462 U.S. 213, 230-31 (1983); Shaffer v. State, 562 S.W.2d 853, 855

(Tex. Crim. App. 1978); Davis v. State, 794 S.W.2d 123, 125 (Tex. App.—Austin 1990, pet. ref’d).

Reasonable suspicion, like probable cause, is dependent upon both the content of the information

possessed by the police and its degree of reliability. Alabama v. White, 496 U.S. 325, 330 (1990).

“Both factors—quantity and quality—are considered in the totality of the circumstances—the whole

picture . . . must be taken into account when evaluating whether there is reasonable suspicion.” Id.

(citing United States v. Cortez, 449 U.S. 411, 417 (1981)); see also Carmouche, 10 S.W.3d at 328-

29; Reynolds v. State, 962 S.W.2d 307, 311 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

                In this case, the county court at law expressly found that Officer Pruett’s testimony

was credible. Cf. Ross, 32 S.W.3d at 857 (trial court made no finding of fact that officer’s testimony



                                                   4
was credible). Based on the standard of review, we will give great deference to this finding. The

county court’s suppression of the evidence, therefore, must rest on the determination that the facts

established by Officer Pruett’s testimony do not constitute reasonable suspicion for the stop. Id. at

856-57. The crucial portion of Officer Pruett’s testimony was that his only basis for stopping

appellee was the information provided to him in a face-to-face manner by the cab driver; he did not

observe any independent acts upon which to lawfully base the stop. The issue for us in reviewing de

novo the application of search and seizure law to the facts is, whether considering the totality of the

circumstances, did Officer Pruett, based solely on the information provided to him in a face-to-face

manner by the cab driver, have the reasonable suspicion necessary to lawfully stop appellee.

                A tip by an unnamed informant of undisclosed reliability standing alone rarely will

establish the requisite level of reasonable suspicion necessary to justify an investigative detention.

Florida v. J.L., 529 U.S. 266, 269 (2000) (citing White, 496 U.S. at 329). There must be some

further indicia of reliability, some additional facts from which a police officer may reasonably

conclude that the tip is reliable and a detention is justified. Id.



                Other courts have addressed the issue of whether unsolicitated information from a

person who, in a face-to-face manner, advises an officer that a designated person present on the scene

is committing or has committed a specific crime, should be given serious attention and great weight

by the officer. See United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir. 1978); State v. Sailo,

910 S.W.2d 184 (Tex. App.—Fort Worth 1995, pet. ref’d); see also State v. Garcia, 25 S.W.3d 908




                                                    5
(Tex. App.—Houston          [14th Dist.] 2000, no pet.); J.L., 529 U.S. at 274-76 (Kennedy, J.,

concurring).

                In Sierra-Hernandez, a man described only as “wearing farmer’s overalls and a

baseball cap and driving a late-model brown Mercedes-Benz” approached a border patrol officer who

was working during mid-day checking the citizenship of workers in a field just north of the Mexico-

United States border. Sierra-Hernandez, 581 F.2d at 762. The man pointed to a black pickup and

said, “The black pickup truck just loaded with weed at the canebreak.” The officer knew that the

general neighborhood and the canebreak in particular were sites of previous incidents of drug

smuggling and illegal entry of aliens. Id. Without any other information from the man, the officer

radioed for help and began following the pickup. He stopped the pickup about four and a half miles

later and arrested the driver, the sole occupant in the car, for possession of marihuana. The Sierra-

Hernandez court held that a person who is not connected with the police or who is not a paid

informant is inherently trustworthy when the person approaches a police officer and, in a face-to-face

manner, gives the officer unsolicited information that a crime is being committed. Id. at 763. The

court noted that just as there is no per se rule establishing the reliability of a person’s information to

justify a stop in every instance, likewise there is no per se rule requiring an officer to obtain the

identity of a person giving information before acting on that information. In evaluating the

reasonableness of the officer’s conduct the court considered both the circumstances in which the

information was given to the officer and the facts that would justify the officer in acting on the

information without knowing the person’s identity or obtaining information for tracing him later. The

indicia of reliability the court noted were the officer’s knowledge that the canebreak was the site of



                                                    6
previous criminal activity, the information was neither vague about the type of criminal activity nor

the time of the criminal activity, and the suspect was clearly indicated and his actions described with

some particularity. Id. By presenting himself to the officer in a face-to-face manner and doing so

while driving a car from which his identity might be traced, the person was in a position to be held

accountable for his intervention. The court held that there was nothing in the record that should have

caused the officer to doubt the reliability or good faith of the person tendering the information. The

court concluded that the information, considered in light of the circumstances, was sufficient to

provide the officer with the necessary reasonable suspicion to justify the stop. Id.

               In State v. Sailo, while officers were performing a traffic stop, “a white male who was

a distinguished-looking older gentleman in his mid-fifties with graying hair” drove up from the

opposite direction and shouted at the officers excitedly from across the road. Sailo, 910 S.W.2d at

186. One of the officers crossed to the middle of the road where the man told the officer that he had

seen a small, white Toyota pickup truck driving all over the road and that it had almost run into a

ditch twice. The man suspected that the driver of the pickup was drunk. The man said that the truck

would be approaching from behind him. The officer asked the man to wait on the side of the road.

The officer next saw a white Toyota pickup truck approaching exactly as the man indicated. The

officer asked the driver, Sailo, to drive into a nearby parking area so he could investigate. The

investigating officers testified that they did not observe the pickup commit any traffic violations.

Although the man who alerted the officers waited briefly on the side of the road, he drove away

before either officer could get any identifying information from him. Sailo was arrested for driving

while intoxicated. The Sailo court held that there was nothing in the record that should have caused



                                                  7
the officers to doubt the reliability or good faith of the man who gave them the information. The

man, although unknown to the officers, was sufficiently reliable because he came forward to give the

officer unsolicited information in a face-to-face manner. Id. at 188. The court held that a person

presenting himself to a police officer, and doing so while driving a car from which his identity might

easily be traced, puts himself in a position to be held accountable for his intervention unlike a person

who makes an anonymous telephone call. Id. The Sailo court referred to Illinois v. Gates, in which

the Supreme Court held that in situations where unsolicited information consists of a detailed

description of wrongdoing, along with a statement that the event was observed firsthand, the

information is to be given greater weight than might otherwise be the case. Id. at 189 (citing Gates,

462 U.S. at 234). The Sailo court noted that the officers knew the area was one of frequent DWI

encounters, that the suspect was described by a reliable person, and that the suspect’s location and

criminal actions were indicated with some particularity. The Sailo court determined that given the

totality of the circumstances, in light of the experience and knowledge of the officers, and giving great

weight to the unsolicited information provided to the officers in a face-to-face manner, the officers

had the reasonable suspicion necessary for an investigative stop.

                In the case before us, unlike Sierra-Hernandez and Sailo, the record does not contain

any evidence about whether Officer Pruett knew the area was a site of previous criminal activity.

However, as in Sierra-Hernandez and Sailo, the primary indicia of reliability in this case was that the

cab driver gave unsolicited information to Officer Pruett in a face-to-face manner. By approaching

Officer Pruett face-to-face, the cab driver put himself in a position where he could have been held

accountable for his intervention. Additionally, following the holding in Sierra-Hernandez that a



                                                   8
person, not connected with the police or not a paid informant, who gives a police officer unsolicited

information in a face-to-face manner is inherently reliable, there is nothing in the suppression record

that should have caused Officer Pruett to doubt the cab driver’s inherent reliability or good faith.

Another indicia of reliability in the present case was that the information given by the cab driver was

neither imprecise about the time of the criminal activity nor vague about the kind of criminal activity.

We hold that based on the totality of the circumstances, Officer Pruett had specific facts, which in

light of his experience and personal knowledge, together with inferences from those facts, gave him

the reasonable suspicion necessary to warrant an investigative stop of appellee.


                                             Conclusion

                We hold that the county court at law erred in its application of the law to the facts of

this case and that the suppression motion should have been overruled. The State’s issue is sustained.

We reverse the suppression order of the county court at law and remand the cause for further

proceedings.




                                                Lee Yeakel, Justice

Before Justices Yeakel, Patterson and Jones*

Reversed and Remanded

Filed: February 28, 2001

Publish

                                                   9
*
    Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 75.003(a)(1) (West 1998).




                                               10
