                                                                  PD-00208-CR, PD-00209-CR
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                 Transmitted 3/23/2015 2:37:31 PM
                                                                   Accepted 3/25/2015 1:45:42 PM
                                                                                     ABEL ACOSTA
                    NOS. PD-00208-15 & PD-00209-15                                           CLERK

                              IN THE
                   COURT OF CRIMINAL APPEALS
                             OF TEXAS
                            AT AUSTIN
                     _________________________

                         JARQUIS D. JACKSON,
                              Petitioner/Appellee

March 25, 2015                       v.

                        THE STATE OF TEXAS,
                              Respondent/Appellant
                       _________________________

            On Appeal in Cause Nos. MB13-62072 & MB13-62071
                    from the County Criminal Court No. 3
                           Of Dallas County, Texas
                  And on Petition for Discretionary Review
                  from the Fifth District of Texas at Dallas
             In Cause Nos. 05-14-00278-CR & 05-14-00279-CR
                       _________________________

      APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                  _________________________

                                      Counsel of Record:

         Lynn Richardson                  Kathleen A. Walsh
         Chief Public Defender            Assistant Public Defender
                                          State Bar Number: 20802200
         Katherine A. Drew                133 N. Riverfront Blvd., LB 2
         Chief, Appellate Division        Dallas, Texas 75207-399
                                          (214) 653-3550 (telephone)
         Loren M. Collins                 (214) 653-3539 (fax)
         Assistant Public Defender        kwalsh@dallascounty.org
                              LIST OF PARTIES

TRIAL COURT JUDGE
Doug Kemp, Presiding Judge

APPELLEE
Jarquis D. Jackson

APPELLEE’S ATTORNEYS
AT TRIAL
Loren M. Collins, State Bar No. 24077823
Assistant Public Defender

ON APPEAL
Kathleen A. Walsh, State Bar No. 20802200
Loren M. Collins, State Bar No. 24077823

Assistant Public Defenders
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Annish Ashley, State Bar No. 24087120
Chris Johnson, State Bar No. 24063939

ON APPEAL
Brian P. Higginbotham, State Bar No. 24078665

Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399



                                           ii
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
GROUNDS FOR REVIEW ...................................................................................... 2

                               GROUND FOR REVIEW NO. 1

           The Court of Appeals’ decision reversing the trial court’s order
         granting Petitioner’s motion to suppress evidence conflicts with the
        decisions of the U.S. Supreme Court because the decision permits an
        investigative detention based on an anonymous tip where the tipster
            did not claim personal knowledge of the alleged illegality and
                         provided no predictive information.

                               GROUND FOR REVIEW NO. 2

          The Court of Appeals’ decision reversing the trial court’s order
        granting Petitioner’s motion to suppress evidence conflicts with the
        decisions of this Court because the decision permits an investigative
        detention based on an anonymous tip where the tipster did not claim
            personal knowledge of the alleged illegality and provided no
                               predictive information.

                               GROUND FOR REVIEW NO. 3

          The Court of Appeals’ decision reversing the trial court’s order
        granting Petitioner’s motion to suppress evidence conflicts with the
          decisions of other Texas courts of appeals because the decision
        permits an investigative detention based on an anonymous tip where
        the tipster did not claim personal knowledge of the alleged illegality
                       and provided no predictive information.


                                                    iii
ARGUMENT ............................................................................................................. 3
         Pertinent Facts .................................................................................................3
         Anonymous tips and reasonable suspicion ......................................................4
         The Dallas Court's determination that the anonymous tip in this case
         contained the same indicia of reliability to provide officers with reasonable
         suspicion to believe criminal activity was afoot is in conflict with the
         decision in Navarette; the anonymous tip, and information known to the
         officers at the time of the investigative detention, is nearly identical to the tip
         and circumstances found to be insufficient by the Supreme Court in J.L, and
         its progeny.. .....................................................................................................9
         Other federal and state courts interpreting the holding in Navarette also
         demonstrate the conflict between the Dallas Court's opinion and the
         Supreme Court's opinion ...............................................................................11
         Conclusion .....................................................................................................13
PRAYER FOR RELIEF .......................................................................................... 15
CERTIFICATE OF SERVICE ................................................................................ 16
CERTIFICATE OF COMPLIANCE ....................................................................... 16
APPENDIX




                                                            iv
                                    INDEX OF AUTHORITIES

Cases
Alabama v. White,
  496 U.S. 326 (1990) ............................................................................... 4, 5, 13
Davis v. State,
 144 S.W.3d 192 (Tex. App.—Fort Worth 2004, pet. ref'd.) ............................ 6
Davis v. State,
 989 S.W.2d 859 (Tex. App.—Austin 1999, pet. ref'd.) ................................... 6
Florida v. J.L.,
  529 U.S. 266 (2000) ......................................................................... 6, 7, 10, 13
Jackson v. State,
  Nos. 05-14-00278-CR, 05-14-00279-CR, 2015 Tex. App. LEXIS 507
  (Tex. App.—Dallas January 21, 2015) (not designated for publication) .... 1, 9
Johnson v. State,
  146 S.W.3d 719 (Tex. App.—Texarkana 2004, no pet.) ................................. 8
Martinez v. State,
 348 S.W.3d 919 (Tex. Crim. App. 2011) ........................................................ 8
Matthews v. State,
 431 S.W.3d 596 (Tex. Crim. App. 2014) ........................................................ 1
Navarette v. California,
  134 S.Ct. 1683 (2014) ............................................................................. passim
State v. Braziel,
  No. A13-1183, 2014 Min.. App. Unpub. LEXIS 576 (Minn. Ct. App.
  June 9, 2014, review denied) (not designated for publication) ...................... 13
State v. Gates,
  145 So.3d 288 (La. 2014) ............................................................................... 12
State v. McPeak,
  No. 40892, 2014 Ida. App. Unpub. LEXIS 264 (Idaho Ct. App. June 11,
  2014, no pet. h.) (not designated for publication) .......................................... 12
Stewart v. State,
  22 S.W.3d 646 (Tex. App.—Austin 2000, pet. ref’d.) .................................... 6

                                                        v
United States v. Robinson,
 No. 3:14-CR-28, 2014 U.S. Dist. LEXIS 112383 (N.D. W.Va. August 14,
 2014, no pet. h.) (not designated for publication) .......................................... 12
Statutes
TEX. CODE CRIM. PROC. art. 44.01 (a) (5) ............................................................ 1
TEX. PENAL CODE § 46.02 .................................................................................. 11
TEX. PENAL CODE § 46.15(b)(2) ........................................................................ 11
Rules
TEX. R. APP. P. 66.3(b) ....................................................................................... 13




                                                          vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

        COMES NOW Jarquis D. Jackson, Petitioner herein and Appellee before

the Court of Appeals, and respectfully submits this Petition for Discretionary

Review.

                       STATEMENT REGARDING ORAL ARGUMENT

        Appellee requests oral argument because this case presents a question of law

on an issue having statewide impact and possible reoccurrence. Oral argument may

be helpful to the members of this Court in the resolution of the issue presented.

                                 STATEMENT OF THE CASE

        Appellee was charged by affidavit and information with the offenses of

unlawfully carrying of a weapon and possession of marijuana in an amount of two

ounces or less. (CR: 9, 10; CR1: 8, 9).1 The trial court granted Appellee’s motion

to suppress. (CR: 15; CR1: 39; RR: 55-57. 62-63). The State appealed pursuant to

TEX. CODE CRIM. PROC. art. 44.01 (a) (5). (CR: 6-7; CR1: 6-7).

      STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

        On January 21, 2015, in an unpublished opinion, the Court of Appeals for

the Fifth District of Texas reversed the trial court’s order granting the motion to

suppress. Jackson v. State, Nos. 05-14-00278-CR, 05-14-00279-CR, 2015 Tex.


1
 For purposes of this brief, the Clerk’s Record in Cause No. MA13-62072 shall be designated as “CR;” the Clerk’s
Record in Cause No. MA13-62071 shall be designated as “CR1.”
App. LEXIS 507 (Tex. App.—Dallas January 21, 2015) (not designated for

publication). (See Appendix). No motion for rehearing was filed. This Petition is

timely if filed on or before March 23, 2015.2

                              GROUND FOR REVIEW NO. 1

            The Court of Appeals’ decision reversing the trial court’s order
          granting Petitioner’s motion to suppress evidence conflicts with the
         decisions of the U.S. Supreme Court because the decision permits an
         investigative detention based on an anonymous tip where the tipster
             did not claim personal knowledge of the alleged illegality and
                          provided no predictive information.

                              GROUND FOR REVIEW NO. 2

            The Court of Appeals’ decision reversing the trial court’s order
          granting Petitioner’s motion to suppress evidence conflicts with the
          decisions of this Court because the decision permits an investigative
          detention based on an anonymous tip where the tipster did not claim
              personal knowledge of the alleged illegality and provided no
                                 predictive information.

                              GROUND FOR REVIEW NO. 3

            The Court of Appeals’ decision reversing the trial court’s order
          granting Petitioner’s motion to suppress evidence conflicts with the
            decisions of other Texas courts of appeals because the decision
          permits an investigative detention based on an anonymous tip where
          the tipster did not claim personal knowledge of the alleged illegality
                         and provided no predictive information.




2
    On February 26, 2015, this Court granted the Appellant’s motion for an extension of time.
                                                 2
                                  ARGUMENT

Pertinent Facts.

      On September 2, 2013, Dallas police officers were dispatched to the parking

lot of a gas station in Dallas. (RR: 7, 9, 17, 21-22, 24, 30, 37-38). Three officers

responded to the call. (RR: 7, 22, 37-38). The call notes from dispatch were based

on a 911 call from an anonymous tipster; the officers did not know any information

about the caller other than a cell phone number. (RR: 20-21, 43, 57).

      As they made their way to the scene, the officer’s call sheet indicated that

the tipster had alleged that a black male wearing a white t-shirt had a gun. (RR: 7,

9, 14, 32, 38). Officer Thomas testified that the officers’ “collective

understanding” was that there was “a man with a gun” at the gas station. (RR: 31-

32). Both Officers Thomas and Crawford stated that the call notes indicated that

the suspect had not pointed the gun or waved the gun at anyone. (RR: 32, 50). The

notes additionally stated that the man with the gun had gotten into a black Honda

with no front license plate, and that two other black males wearing white t-shirts

were also present in or around the vehicle. (RR: 16). The call notes also stated that

the vehicle had blue headlights and the lights were flashing. (RR: 7-8, 38-39). The

notes did not provide any information as to which black male wearing a white t-

shirt had a gun. (RR: 16). The three officers testified that the area of town is in a




                                         3
high crime area, but also that the gas station was open and is frequented by many

patrons during late night hours. (RR: 9, 30, 40).

      Upon arriving at the gas station, the officers saw a black Honda backed into

a parking spot in front of the gas station and it was flashing its lights. (RR: 8, 22,

38, 40). Additionally, the officers saw that the Honda had blue headlights and no

front license plate, just as the call notes had alleged. (RR: 18). The officers exited

their vehicles and approached the black Honda. (RR: 17). The vehicle started

moving and the officers used hand gestures and “yelled stop”. (RR: 17, 39). In

response to the officers’ show of authority, the vehicle stopped. (RR: 18, 23-24,

39, 48). During the investigative detention, the police found a handgun underneath

the passenger seat of the vehicle and some marijuana on Appellee’s person. (RR:

12, 26-27, 41-42).

Anonymous tips and reasonable suspicion.

      Under the Fourth Amendment, an investigatory detention must be justified

by reasonable suspicion. Matthews v. State, 431 S.W.3d 596, 603-04 (Tex. Crim.

App. 2014). Whether reasonable suspicion exists, “…depends upon both the

content of information possessed by police and its degree of reliability.” Navarette

v. California, 134 S. Ct. 1683, 1687 (2014)(citing Alabama v. White, 496 U.S. 325,

330 (1990).




                                          4
      An anonymous tipster’s information may form part of the basis of an

investigative detention. However, by definition, an anonymous tipster’s reliability

is “largely unknown, and unknowable.” Id. (quoting White, 496 U.S. at 329).

Therefore, “an anonymous tip seldom demonstrates the informant’s basis of

knowledge or veracity” standing alone. White, 496 U.S. at 329.

      Because an anonymous tipster’s reliability is unknown, the Supreme Court

has discussed two main ways in which an anonymous tip may be proved reliable,

and thus justify an investigative detention. In Alabama v. White, an anonymous tip

provided information about a specific person driving a specific vehicle who was

alleged to be transporting illegal drugs. Additionally, the tip provided information

that predicted the suspects future movements. Once that predictive information was

corroborated by the officer’s surveillance of the suspect, “the tipster demonstrated

a special familiarity with [the suspect’s] affairs, which in turn implied that the

tipster had access to reliable information about that individual’s illegal activities.”

Navarette, 134 S. Ct. at 1687 (citing White, 496 U.S. at 332). Thus, the specific

details contained in the tip, plus the corroboration of the predictive behavior

contained within the tip, supplied the reliability needed to find that reasonable

suspicion existed.

      Alternatively, an anonymous tip may be proved reliable when the tipster

provides information that necessarily implies that the tipster has personal

                                          5
knowledge of the alleged illegal conduct, and makes a “contemporaneous report”

to police of the alleged illegal conduct. Navarette, 134 S. Ct. at 1689.             In

Navarette, the tipster alleged “she had been run off the road by a specific vehicle”,

and she made that report immediately after it happened. Id. Thus, the combination

of personal knowledge of the illegality, together with the contemporaneous report,

supplied the reliability needed to show that reasonable suspicion existed.

      In contrast, an anonymous tip that does not indicate that it was based on

personal knowledge, is not made contemporaneously with the alleged illegal

activity, and provides no predictive information, will not be deemed sufficient to

prove reliable to establish reasonable suspicion absent corroboration of criminal

activity by the investigating officers. Corroboration of mere innocent details is

insufficient to corroborate an anonymous tip. Davis v. State, 144 S.W.3d 192, 199-

200 (Tex. App.—Fort Worth 2004, pet. ref’d.). The independent corroboration by

the investigating officers must establish that the tip is ‘reliable in its assertion of

illegality, not just in its tendency to identify a determinate person.” Florida v. J.L.,

529 U.S. 266, 271-272 (2000). “[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.” Stewart v. State, 22 S.W.3d 646,

648 (Tex. App.—Austin 2000, pet. ref’d.); Davis, 989 S.W.2d 859, 863 (Tex.

App.—Austin 1999, pet. ref’d.); see also J.L., 529 U.S. at 272.

                                           6
      In J.L., an anonymous caller reported to the police that a young black male

standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The

police arrived at the bus stop about six minutes later and saw three black males

hanging out there. One of three, J.L., was wearing a plaid shirt. Apart from the tip,

the officers had no reason to suspect any of the three of illegal conduct; the officers

did not see a firearm, nor did J.L. make any threatening or otherwise unusual

movements. One of the officers frisked J.L. and seized a gun from his pocket. J.L.,

529 U.S. at 268. The Supreme Court held that the tip was insufficient to establish

reasonable suspicion. Id. at 271-72.

      Texas courts have followed the Supreme Court’s decision in J.L., examining

whether a tip is too barebones to support reasonable suspicion. In Martinez, an

anonymous tipster reported that a male driving a blue Ford pickup truck stopped at

the intersection of 17th and Main Street, put two bicycles into the bed of his truck,

and left the area going west. An officer on patrol in the area stopped a Ford F-250

truck that “looked like it was blue” approximately three-quarters of a mile from the

reported incident that the officer considered to be a report concerning the theft of

bicycles. As the officer walked to the driver’s side of the truck, he noticed two

bicycles in the truck bed that had not been visible to him until he approached the

truck. After the officer was informed by dispatch that there were no complaints of

stolen bicycles from that location, he asked dispatch if the caller could come to the

                                          7
scene; the caller arrived and confirmed that the officer had pulled over the same

truck that had picked up the two bicycles. Martinez v. State, 348 S.W.3d 919, 922

(Tex. Crim. App. 2011). This Court found the anonymous tip insufficient to permit

an investigative detention because the anonymous caller did not report contextual

factors that reasonably connected the activity 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 924-26.

      In Johnson, the Sixth District Court of Appeals reviewed the legality of the

investigative detention following an anonymous tip which indicated that a black

man, accompanied by two black females, driving a 1999 black Ford Taurus with a

specified license plate number, was involved in possible drug activity at a specific

apartment complex. The officer testified the apartment complex in question was

known to be a place that regularly had drug deals and drug activity occurring. The

officer reached that location less than a minute after the dispatcher relayed the

information, and saw and stopped a car matching that description as the driver

attempted to leave the parking lot of the complex. Johnson v. State, 146 S.W.3d

719, 721 (Tex. App.—Texarkana 2004, no pet.). The Texarkana Court found the

tip insufficient to permit an investigative detention because the caller was

anonymous and “there was no corroboration at the time of the stop that indicated

criminal activity.” Id. at 722.

                                         8
The Dallas Court’s determination that the anonymous tip in this case contained
the same indicia of reliability to provide officers with reasonable suspicion to
believe criminal activity was afoot is in conflict with the decision in Navarette;
the anonymous tip, and information known to the officers at the time of the
investigative detention, is nearly identical to the tip, and circumstances found to
be insufficient by the Supreme Court in J.L., and its progeny.

      In its opinion, the Dallas court of appeals likened the tip in this case to the

tip in Navarette, stating:

      As in Navarette, the tip was an eyewitness account of a potentially
      dangerous situation, was made contemporaneously with the event, and
      was made through the 911 system. As found by the trial court, the
      tipster called 911 in the early morning hours and reported a man was
      publicly “displaying” a gun on the parking lot of a gas station. The gas
      station was open for business and was located near a nightclub in a
      high-crime area. As officers went to the scene, the tipster stayed on
      the line with the 911 dispatch and provided other information in real
      time. The tipster gave information on the man’s attire and location as
      well as specific details on his vehicle, such as make, color, the lack of
      a front license plate, blue flashing headlights and how the car was
      parked. Police verified these details before making the stop.

Jackson, 2015 Tex. App. LEXIS 507 at *7.

      The Dallas Court’s reliance on the holding in Navarette is misplaced. There

is no doubt from the tip in Navarette that it is based on personal knowledge of very

recent criminal activity, as the allegation in the 911 call makes it clear that the

tipster herself is the victim of the criminal activity she is reporting, and that such

criminal activity occurred within the last five minutes of the tipster making the

call. In stark contrast, and contrary to the Dallas Court’s opinion, there is nothing




                                          9
in the tip in this case that shows it “was an eyewitness account” and “was made

contemporaneously with the event.”

      The tip in this case is virtually identical to the tip found to be insufficient in

J.L. In Navarette, the Supreme Court specifically distinguished its holding in J.L.,

restating the rule that because “the tipster did not explain how he knew about the

gun, nor did he suggest that he had any special familiarity with the young man’s

affairs,” the police “had no basis for believing ‘that the tipster ha[d] knowledge of

concealed criminal activity. Navarette, 134 S. Ct. at 1688 (quoting J.L., 529 U.S. at

271-72). The Dallas Court is correct in stating that the tipster gave a description of

the man’s attire and location, as well as specific details about the car, however,

these facts do no more than allow the officers to correctly identify the person

whom the tipster means to accuse; these facts do not show that the tipster has

knowledge of concealed criminal activity. See J.L, 529 U.S. at 272.

      Furthermore, even if the tipster’s failure to explain how he knew about the

gun can somehow be ignored in this case, there is a question as to whether the tip

can even be considered a report of criminal activity. “Even a reliable tip will justify

an investigative stop only if it creates reasonable suspicion that ‘criminal activity

may be afoot.” Navarette, 134 S. Ct. at 1689. Although the Dallas Court

characterizes the tip as a report of a man “displaying” a gun in the parking lot, two

of the responding officers testified during the hearing that the 911 call notes

                                          10
indicated that the suspect had not pointed the gun or waved the gun at anyone. The

Texas Penal Code allows an individual to carry a handgun when: (1) the person is

on his property or on property under his control; (2) the person is walking directly

to his car or a car under his control; or (3) the person has a license to carry a

concealed weapon. TEX. PENAL CODE §§ 46.02; 46.15(b)(2). Based upon the tip

given, the responding officers had no way of knowing whether Appellee met one

of the exceptions to the general prohibition against carrying a handgun before they

detained him. Furthermore, there is no evidence that the officers observed any

illegal activity by Appellee or anyone else when they arrived at the gas station.

Indeed, the gun was not even found on Appellee’s person, but was found in

Appellee’s car under a seat only after the officers had pulled the three black males

from the car because the three men all happened to be wearing a white t-shirt, as

described by the tipster as the clothing worn by the man carrying the gun.

Other federal and state courts interpreting the holding in Navarette also
demonstrate the conflict between the Dallas Court’s opinion and the Supreme
Court’s opinion.

      There is a paucity of case law construing Navarette in the Texas state courts.

However, other courts’ interpretations demonstrate the conflict between the Dallas

Court’s opinion in this case, and the Supreme Court’s opinion in Navarette. Courts

which have examined this issue in light of Navarette have uniformly examined

whether the tip: (1) necessarily claimed personal knowledge of the alleged criminal

                                        11
activity, and (2) whether the tip was made contemporaneously. These opinions are

consistently in contrast to the Dallas Court’s opinion in this case.

      For example, in U.S. v. Robinson, the Northern District Court of West

Virginia examined an anonymous tip case in which the anonymous caller

witnessed a black male in a bluish greenish Toyota Camry, driven by a female,

load a firearm and conceal it in his pocket. The caller stated the car had just left [a

particular] 7-Eleven parking lot and [caller] was leaving as well. United States v.

Robinson, No. 3:14-CR-28, 2014 U.S. Dist. LEXIS 112383 (N.D. W.Va. August

14, 2014, no pet. h.) (not designated for publication). The parking lot in question

was in a high crime area. The West Virginia court discussed how the tip was

similar to Navarette, and distinguishable from J.L.:

      The caller had eyewitness knowledge of the alleged loading and
      possession of the firearm by the Defendant. He told [911 dispatch]
      that he actually saw the Defendant, who was in a bluish greenish
      Toyota Camry, load the firearm and conceal it.

(emphasis added). Id. at *7. The language, “He told…that he actually saw the

Defendant” is similar to the language in Navarette: “Ran the reporting party off

the roadway and was last seen approximately five minutes ago.” (emphasis added)

Navarette, 134 S. Ct. at 1687. See also State v. Gates, 145 So.3d 288 ( La. 2014)

(tip alleging blue colored pickup truck almost ran couple off road while traveling

on I-20; couple “relayed information about a crime they just witnessed”); State v.

McPeak, No. 40892, 2014 Ida. App. Unpub. LEXIS 264, *1 (Idaho Ct. App. June
                                          12
11, 2014, no pet. h.) (not designated for publication) (anonymous call “reporting

that an alleged assault involving a knife had recently occurred. It was reported that

the suspect was McPeak, and that he had entered the home of the caller and left in

a white Ford pickup.”); and State v. Braziel, No. A13-1183, 2014 Minn. App.

Unpub. LEXIS 576, *8-9 (Minn. Ct. App. June 9, 2014, review denied) (not

designated for publication) (“Next, and even more importantly, the caller claimed

eyewitness knowledge of the alleged dangerous behavior. Eyewitness knowledge

lends significant support to the tip’s reliability, even when the caller is

anonymous.”).

Conclusion.

      This Court should grant this Petition because the Dallas Court’s opinion

clearly conflicts with the decisions of the Supreme Court in Navarette, White, and

J.L., as well as opinions from this Court and other Texas courts of appeals

interpreting those Supreme Court decisions. Whether the tip and circumstances

leading to the investigative detention in this case meet the evidentiary precision

required by the Supreme Court in Navarette is an important question of law which

requires the exercise of this Court’s supervisory powers. TEX. R. APP. P. 66.3 (b).

Justice Thomas noted that like White, Navarette is a “close case.” Under the

totality of the circumstances, and like J.L., this is not a close case. The record

merely shows that the tipster alleged information that turned out to be true: at some

                                         13
unknown point before police got there, three black males were in a Honda outside

a gas station. The police were provided with a barebones anonymous tip by a caller

that contained no information that the event was observed firsthand; contained no

predictive information that could be corroborated to prove the reliability of the

tipster; and failed to allege a crime. These factors, along with the fact that once

police arrived they found three males matching the description of the single male

with a gun, and no observable evidence of criminal activity, combine to prevent a

finding of reasonable suspicion.




                                        14
                            PRAYER FOR RELIEF

      For the reasons herein alleged, Appellee prays this Court grant this petition,

reverse the opinion of the Dallas Court of Appeals, and affirm the trial court’s

order granting Appellee’s motion to suppress.

                                      Respectfully submitted,

                                      /s/ Kathleen A. Walsh
                                      Kathleen A. Walsh
                                      Assistant Public Defender
Lynn Richardson                       State Bar No. 20802200
Chief Public Defender
Dallas County                         /s/ Loren M. Collins
                                      Loren M. Collins
                                      Assistant Public Defender
                                      State Bar No. 24077823

                                      Frank Crowley Courts Building
                                      133 N. Riverfront Blvd., LB-2
                                      Dallas, TX. 75207-4399
                                      (214) 653-3550 (telephone)
                                      (214) 653-3539 (fax)




                                        15
                         CERTIFICATE OF SERVICE

      I hereby certify that on the 23rd day of March, 2015, a true copy of the

foregoing petition for discretionary review was served on the Appellate Division of

the Dallas County District Attorney’s Office by electronic delivery to

DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to

Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov.



                                      /s/ Kathleen A. Walsh
                                      Kathleen A. Walsh



                     CERTIFICATE OF COMPLIANCE


      I hereby certify that the word count in this document is 4,371 which is

prepared in Microsoft Word 2010.

                                      /s/ Kathleen A. Walsh
                                      Kathleen A. Walsh




                                        16
APPENDIX
W"LexisNexis·
No Shepard's Signal™
As of: March 19, 2015 12:54 PM EDT


                                                    State v. Jackson
                                       Court of Appeals of Texas, Fifth District, Dallas
                                               January 21, 2015, Opinion Filed
                                         No. 05-14-00278-CR, No. 05-14-00279-CR

Reporter
2015 Tex. App. LEXIS 507

THE STATE OF TEXAS, Appellant v. JARQUIS D.                        LexisNexis® Headnotes
JACKSON, Appellee

                                                                      Criminal Law & Procedure> Preliminary Proceedings> Pretrial
Notice: PLEASE CONSULT THE TEXAS RULES OF
                                                                      Motions & Procedures > Suppression of Evidence
APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.                                                 Criminal Law & Procedure > ... > Standards of Review > De
                                                                      Novo Review > l\r1otions to Suppress
Prior History:       On Appeal from the County Criminal               Criminal Law & Procedure > ... > Standards of Review >
Court No. 3. Dallas County, Texas. Trial Court Cause Nos.             Deferential Review > Credibility & Demeanor Determinations
MBJ3-62072 and MB 13-62071.
                                                                      Evidence> .. >Testimony> Credibility of Witnesses> General
                                                                      Overview
Core Terms
                                                                      Criminal Law & Procedure> Preliminary Proceedings> Pretrial
                                                                      Motions & Procedures > Suppression of Evidence
reasonable suspicion, caller, gun, tip, trial court, anonymous
                                                                      Criminal Law & Procedure > ... > Standards of Review > De
tip, marijuana, tipster, gas station, reliability, detention,
                                                                      Novo Review > Motions to Suppress
suppress
                                                                      Criminal Law & Procedure > ... > Standards of Review >
                                                                      Deferential Review> Credibility & Demeanor Determinations
Case Summary
                                                                      Evidence> ... > Testimony> Credibility of Witnesses> General
                                                                      Overview
Overview
HOLDINGS: [l]-An anonymous call leading to defendant's             HNI In reviewing a trial court's ruling on a n1otion to
detention contained suf1icient indicia of reliability to provide   suppress, the appellate court applies a bifurcated standard of
officers with reasonable suspicion to believe criminal activity    review. The appellate court affords almost total deference to
was afoot; [2]-The tip was an eyewitness account of a              a trial judge's determination of historical facts and mixed
potentially      dangerous      situation,      was       made     questions of law and fact that rely upon the credibility of a
contemporaneously with the event, and was made through             witness. The appellate court reviews de novo pure questions
the 911 system; [3]-The tipster gave information on the            of law and mixed questions of law and fact that do not
man's attire and location as well as specific details on his       depend on credibility determinations. When the trial court
vehicle, such as make, color, the lack of a front license plate,   makes explicit fact findings, the appellate court determines
blue flashing headlights and how the car was parked, and           whether the evidence, viewed in the light most favorable to
police verified these details before making the stop;              the trial court's ruling, supports these findings. The appellate
[4]-Because the officers had reasonable suspicion to conduct       court then reviews the trial court's legal ruling de nova
an investigatory stop, the trial court erred in granting           unless the explicit fact findings supported by the record are
defendant's motion to suppress.                                    also dispositive of the legal ruling.

Outcome                                                               Constitutional La\v > ... > Fundamental Rights > Search &
Reversed and remanded.                                                Seizure > General Ovcrvievv
                                                 2015 Tex. App. LEXIS 507, *I



   Criminal Law & Procedure > Search & Seizure > Warrantless       HN4 An anonymous tip contains adequate indicia of
   Searches > Investigative Stops                                  reliability to support reasonable suspicion if the content of
   Evidence > Inferences & Presu1nptions > Inferences              the tip indicates it (1) was based on eyewitness knowledge,
                                                                   which lends significant support to the tip's reliability; (2)
   Constitutional Law > ... > Fundamental Rights > Search &
                                                                   was contemporaneously made, which is especially
   Seizure > General Overview
                                                                   trustworthy because substantial contemporaneity of event
   Criminal Law & Procedure > Search & Seizure > Warrantless       and state1nent negate the likelihood of deliberate or conscious
   Searches > Investigative Stops                                  misrepresentation; and (3) was made to the 911 emergency
   Evidence > Inferences & Presumptions > Inferences               system, which has some features that allow for identifying
                                                                   and tracing callers, and thus provides some safeguards
HN2 Under the Fourth Amendment, a warrantless detention            against making false reports with immunity.
of a suspect that an1ounts to less than a full-blown custodial
arrest must be justified at least by a reasonable suspicion. A     Counsel: For Appellants: Brian Higginbotham, Craig
police officer has reasonable suspicion to detain a person if      Watkins, Dallas, TX.
he has specific, articulable facts that, combined with rational
inferences from those facts, would lead him reasonably to          For Appellees: Kathleen Walsh, Loren M. Collins, Katherine
conclude that the person detained is, has been, or soon will       Drew, Lynn Richardson, Dallas, TX.
be engaged in criminal activity. In determining whether an
officer has reasonable suspicion to detain, the court looks at     Judges: MOLLY FRANCIS, JUSTICE, Evans, and Stoddart.
the totality of the circumstances through an objective lens,       Opinion by Justice Francis.
disregarding the officer's subjective intent. Although some
circumstances may seem innocent in isolation, they will            Opinion by: MOLLY FRANCIS
support an investigatory detention if their combination leads
to a reasonable conclusion that criminal activity is afoot.        Opinion
   Constitutional Law > ... > Fundamental Rights > Search &
   Seizure > General Overview                                      MEMORANDUM OPINION

   Crimlnal Law & Procedure > Search & Seizure > Warrantless       Opinion by Justice Francis
   Searches > Investigative Stops

   Constitutional Law > ... > Fundam.cntal Rights > Search &       Jarquis D. Jackson was charged with the misdemeanor
   Seizure > General Overview                                      offenses of unlawfully carrying a weapon and possession of
   Criminal Law & Procedure > Search & Seizure > Warrantless       marijuana. Appellant n1oved to suppress the evidence,
   Searches > Investigative Stops                                  arguing his detention was illegal because officers did not
                                                                   have reasonable suspicion. The trial court granted the
HN3 An anonymous tip alone is seldom sufficient to                 motion, and the State appealed. In a single issue, the State
establish reasonable suspicion. Reasonable suspicion is            argues the trial court erred in concluding an anonymous tip
dependent not only on the content of the inforn1ation              did not support the officers' reasonable suspicion. We agree
possessed by law enforcement, but also on its reliability. To      with the State. Therefore, \Ve reverse the ttial court's orders
support reasonable suspicion, an anonymous tip requires            and remand for further proceedings consistent with this
some indicia that the caller is credible or that his information   opinion.
is reliable.
                                                                   At about 4 a.m. on September 2, 2013, a caller reported to
   Constitutional Law > ... > Fundamental Rights > Search &        911 that a black male in a white T-shirt was "displaying" a
   Seizure > General Overview                                      gun on the parking lot of a gas station. The caJler reported
   Criminal Law & Procedure > Search & Seizure > Warr.intless      there were na lot of people" on the parking lot, and the man
   Searches > Investigative Stops                                  was with a group of seven other 1nen. The caller stayed on
                                                                   the line with 911 whi1e officers responded.
   Constitutional Law > ... > Fundamental Rights > Search &
   Seizure > General Overvicvv                                     Dallas Police Officers J. [*2] Dickson, Craig Thomas, and
   Cri1ninal Law & Procedure > Search & Seizure > Warrantless      Lance Crawford were dispatched to the scene. The gas
   Searches > Investigative Stops                                  station is in a high-crime area with a nightclub nearby.

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                                                 2015 Tex. App. LEXIS 507, *2



While driving there, the officers received information that        most favorable to the trial court's ruling, supports these
the man with the gun had gotten into a dark-colored Honda          findings. Stare v. Kellv. 204 S. \rV3d 808. 818 riex. Crin1.
with no front license plate and blue headlights; the car was       App. 2006). We then review the trial court's legal ruling de
backed into the gas station and its headlights were flashing.      novo unless the explicit fact findings supported by the
                                                                   record are also dispositive of the legal ruling. Id.
When the officers arrived at the scene, they saw the Honda
with the flashing lights matching the description given by         HN2 Under the Fourth Amendment, a warrantless detention
the caller. As the officers got out of their vehicles, the         of a suspect that a1nounts to less than a fu11-blown custodial
Honda started to pull away. The officers, who had their gum        arrest must be justified at least by a reasonable suspicion.
drawn but at their side, motioned for the car to stop, and the     State v. Elias, 339 S. \¥.3d 667, 674 (Tex. Crim. Apo. 2011 ).
vehicle did. As they approached the vehicle, Crawford said         A police ofiicer has reasonable suspicion to detain a person
he could smell marijuana. The officers had the three               if he has specific, articulable facts that, con1bined with
occupants, who were all dressed in white T-shirts, get out of      rational inferences from those facts, would lead him
the car while they patted them down for weapons. No                reasonably to conclude that the person detained is, has been,
weapons were found. The doors of the vehicle were left             or soon will be engaged in criminal activity. Id. In
open when the occupants got out. Whi1e one of the officers         determining whether an officer has reasonable suspicion to
checked for warrants, Thomas walked around the vehicle             detain, we look at the totality of the circumstances through
and spotted a gun in plain view on the passenger floorboard.       an objective lens, disregarding the officer's subjective
The gun \Vas '~slide-side down, with the grip closest facing       intent. ltfatthe}vs v. State, 431 S, W3d 596, 603 (Tex. Crifn.
the driver." [*31 Appellant said the gun was his. The warrant      App. 20.l4j. Although some circumstances may seem
check revealed that appellant had outstanding warrants, and        innocent J.*5] in isolation, they will support an investigatory
officers arrested him. In the search incident to arrest, they      detention if their combination leads to a reasonable
found marijuana in his pocket. Marijuana was also found in         conclusion that criminal activity is afoot. Id.
the vehicle.
                                                                   HN3 An anonymous tip alone is seldom sufficient to
At the scene, Crawford used the number on the 911 call             establish reasonable suspicion. Id. Reasonable suspicion is
sheet to contact the tipster to see 1f he could "get more          dependent not only on the content of the information
information:" The man told Crawford he was there when              possessed by law enforcement, but also on its reliability. Id.
officers drove up and confi1med they were investigating the        To support reasonable suspicion, an anonymous tip requires
correct vehicle. Crawford asked for the man's name, but he         some indicia that the caller is credible or that his information
declined, saying he was "just passing through town" and            is reliable. Id.
wanted "to stay anonymous."
                                                                   Since the trial court's n1ling, the United States Supreme
At the conclusion of the hearing, the trial court made oral        Court issued its opinion in 1Vavarette v (7ali(ornia, J34 S.
findings consistent with the evidence and recessed for two         Ci. 1683. 188 L. Ed. 2d 680 12014), which considered the
weeks. At the subsequent hearing, appellant argued the             sufficiency of an anonymous tip to conduct an investigatory
anonymous tip did not provide reasonable suspicion for the         stop. In Navarette, a 911 caller, presumed by the court to be
investigatory detention and relied on the U.S. Supreme             anonymous, reported that a vehicle ran her car off the road.
Court's decision in Florida v. J.L 529 U..)~ 266 120 S. Ct.        The caller provided the location as well as a description of
1375. f.16 L. Ed. 2d 254 (20001. The trial court agreed and        the vehicle and license plate number. The 911 dispatcher
granted the motion to suppress.                                    relayed the information to officers. / 34 S. Ct. at 1686-87.
                                                                   About eighteen minutes later, officers spotted a vehicle
HNI In reviewing a trial court's ruling on a motion to             some nineteen 1niles south of the location reported in the tip.
suppress, we apply a bifurcated standard of review. 1'1-lartinez   id. at 1689. The officers pulled the truck over. As they
v. State. 348 S. lV.3d 919. 922-23 (Tex. (7rim. Apr. 2011 J. We    approached, they s1nelled marijuana and a subsequent
afford almost total deference to a trial judge's detennination     search revealed 30 [*61 pounds of marijuana in the bed of
of historical facls and mixed questions of law and fact [*41       the truck. Id. at 1687.
that rely upon the credibility of a witness. Id. We review de
novo pure questions of law and mixed questions of law and          The court held HN4 the anonymous tip contained adequate
fact that do not depend on credibility dete1minations. Id.         indicia of reliability to support reasonable suspicion because
When, as here, the trial court makes explicit fact findings,       the content of the tip indicated it (l) was based on
we determine whether the evidence, viewed in the light             eyewitness knowledge, which "lends significant support to

                                                             Page 3 of 4
                                                  2015 Tex. App. LEXIS 507, *6



the tip's reliability"; (2) was contemporaneously made,             dispatch and provided other inforn1ation in real time. The
which is "especially trustworthy because 'substantial               tipster gave infonnation on the man's attire and location as
contemporaneity of event and statement negate the likelihood        well as specific details on his vehicle, such as make, color,
of deliberate or conscious misrepresentation"'; and (3) was         the lack of a front license plate, blue fla.5hing headlights and
made to the 911 emergency system, which "has some                   how the car was parked. Police verified these details before
features that allow for identifying and tracing callers, and        making           the stop. After the stop, one of the officers
thus provide some safeguards against making false repo1ts           contacted the tipster, who verified the officers were
with immunity." tVavarette. 134 S. C:t. at .1689-90; see            investigating the correct vehicle. Because we conclude the
Ma/thews 431 S.W.3d m 604 n.29.                                     officers had reasonable suspicion to conduct an investigatory
                                                                    stop, the trial court erred in granting the motion to suppress.
The court distinguished its decision from that in J.L., the         We sustain the State's sole issue.
case relied on by appel!ee below and on appeal. J.L.
involved an anonymous caller who reported to the police             We reverse the trial court's orders and remand these causes
that a young black male, wearing a plaid shirt, was standing        for proceedings consistent with this opinion.
at a particu1ar bus stop and was can·ying a gun. 529 l.J.S. at
                                                                    /Molly Francis/
268. The court identified two critical distinctions between
the Navarette tip and the J.L. tip: (1) the J.L. tip "provided      MOLLY FRANCIS
nowbasis for concluding that the tipster had actually seen the
gun" and (2) there was no indication that [*7] the J.I,. tip        JUSTICE
was made contemporaneously with crin1inal activity or
under the stress of excitement caused by a startling event.         ,JUDGMENT
Id. at 1689.
                                                                    Based on the Court's opinion of this date, the trial court's
Having reviewed the evidence and the trial court's oral             order granting the motion to suppress is REVERSED and
findings, we conclude the anonymous call leading to                 the cause REMANDED for further proceedings consistent
appellant's detention contained sufficient indicia of reliability   with this opinion.
to provide officers with reasonable suspicion to believe
criminal activity was afoot. As in 1Va1'arette, the tip was an      Judgment entered January 21, 2015.
eyewitness account of a potentially dangerous situation, was
made contemporaneously with the event, and was made                 JUDGMENT
through the 911 system. As found by the trial court, the            Based on the Court's opinion of this date, the trial court's
tipster called 911 in the early morning hours and reported a        order is REVERSED and the cause REMANDED for
man was publicly "displaying" a gun on the parldng Jot of a         further proceedings consistent with this opinion.
gas station. The gas station was open for business and was
localed near a nightclub in a high-crime area. As officers          Judgment entered January 21, 2015.
went to the scene, the tipster stayed on the line with the 911




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