Bilyeu v. State

• Decision Date: 29 April 2004
• Docket Number: No. 06-03-00151-CR.,06-03-00151-CR.
• Citation: Bilyeu v. State, 136 S.W.3d 691 (Tex. App. 2004)
• Parties: Annette Joy BILYEU, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

136 S.W.3d 691

Annette Joy BILYEU, Appellant, v. The STATE of Texas, Appellee.

No. 06-03-00151-CR.

Court of Appeals of Texas, Texarkana.

Submitted March 29, 2004.

Decided April 29, 2004.

Douglas Wilder, Dallas, for appellant.

William Hill, Jr., Dallas County District Attorney, Tammy Ardolf, Assistant District Attorney, Dallas, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Police officer Jeffery Alan Rose and his partner were taking a break on the parking lot of an Addison, Texas, convenience store around 2:00 a.m., June 20, 2002, when an unidentified man approached them. The man reported that he saw a woman asleep at the wheel of a gold Mercedes-Benz automobile stopped at a nearby traffic light—and the light was green. The man then noticed the same vehicle creeping past their location at ten miles per hour in a thirty-five-mile-per-hour zone and pointed it out. The officers followed the vehicle, noticing no traffic violations, and eventually stopped it, identified the driver as Annette Joy Bilyeu, determined she was intoxicated,¹ and arrested her. Bilyeu appeals from her jury conviction for driving while intoxicated (DWI),² challenging (1) the legality of the stop and, thus, the evidence obtained from that stop, and (2) the trial court's refusal to charge the jury regarding the legality of the search under Article 38.23 of the Texas Code of Criminal Procedure. We affirm.

Legality of Search

In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and review de novo any questions of law concerning the search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). Thus, we will review de novo the question whether Rose had reasonable suspicion to stop Bilyeu. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). In the absence of explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and sustain its decision if correct under any applicable theory of law. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002).

To justify an investigative detention, an officer must have reasonable suspicion of possible criminal conduct. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989). Courts examine the totality of the circumstances to determine whether reasonable suspicion existed. See Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997); State v. Sailo, 910 S.W.2d 184, 188 (Tex.App.-Fort Worth 1996, pet. ref'd). An officer must have specific articulable facts which, taken together with rational inferences and the officer's experience and general knowledge, reasonably indicated the detained person was preparing to engage or had engaged in a crime. Davis, 947 S.W.2d at 242.

Bilyeu contends the information given to Rose by the unidentified citizen is on the same footing as an anonymous tip,³ that it is insufficient to form reasonable suspicion. Bilyeu correctly states that an anonymous tip cannot, by itself, become reliable enough to support a finding of reasonable suspicion. Here, however, the trial court found the citizen's personally appearing before the officers gave greater reliability to the information he provided them.

Reasonable suspicion is dependent on both the content of the information possessed by the officer and the degree of reliability of the information. See Davis v. State, 989 S.W.2d 859, 863 (Tex.App.-Austin 1999, pet. ref'd). While an anonymous tip or telephone call may justify the initiation of an investigation, only rarely will a tip from an unnamed informant of undisclosed reliability, standing alone, establish the requisite level of reasonable suspicion to justify an investigative detention. See Florida v. J.L., 529 U.S. 266, 269, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). 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. See id.

A. Accountability

The facts surrounding the unidentified citizen's report constitute some indicia of reliability. When an unnamed informant puts himself or herself in a position where he or she could easily be accountable, the tip becomes more reliable. See Sailo, 910 S.W.2d at 188. Particularly, unsolicited information given to police in a face-to-face manner should be given serious attention and great weight by the officer even though the informant did not identify himself or herself. United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.1978). Distinguishing the conversation in Sierra-Hernandez from an anonymous telephone call, the court pointed out that the informant confronted the officer directly and did so while the informant was driving a car. Id. Therefore, although the informant did not identify himself, his identity easily could have been determined from the license plates. Id. These distinctions would have allowed the officer to further question the informant had the officer deemed it necessary and also would have allowed officials to hold the informant accountable for the information he provided. Id.

In Sailo, an officer stopped and eventually arrested a driver for DWI after a citizen approached the officer with information regarding a possibly drunk driver. Sailo, 910 S.W.2d at 186. The citizen stated that a white Toyota pickup truck was "all over the road and had almost run into a ditch twice." Id. When the truck approached, the officer pulled the driver over. Id. The Fort Worth Court of Appeals concluded the face-to-face nature of the tip increased the reliability of the information and, thus, less corroboration was necessary to justify the investigative detention. Id. at 188. The experience of the officer and his knowledge that drunk drivers frequently travel through that area were sufficient corroboration of the highly reliable information. See id. at 189. Therefore, the totality of the circumstances justified the investigative detention that led to the driver's arrest and conviction. Id.

The court in State v. Fudge, 42 S.W.3d 226, 229 (Tex.App.-Austin 2001, no pet.), considered the trial court's suppression of evidence in a DWI prosecution. In Fudge, a cab driver approached a police officer stating that a white pickup truck was "all over the road" and that he thought the driver was drunk. Id. at 228. The cab driver then pointed out the truck as the driver drove it around a store parking lot. Id. The officer immediately pulled the truck over and subsequently arrested the driver for DWI. Id. The arresting officer testified he based the stop solely on the cab driver's tip. Id. at 229. The Austin Court of Appeals noted that the officer did not observe any independent acts on which to base the stop. Id. at 230. The record also failed to suggest any other facts to justify the stop. Id. at 232. Relying on Sierra-Hernandez and Sailo, the majority⁴ concluded that the cab driver's giving unsolicited information in a face-to-face encounter made the information alone sufficiently reliable to justify the stop. Id.

Here, we have circumstances similar to those present in Sierra-Hernandez and Sailo. The citizen approached the officers. He provided them with unsolicited information regarding the car he observed four blocks away. Like the unidentified informants in Sierra-Hernandez and Sailo, the concerned citizen here approached the officers in his vehicle, which would have allowed the officers to identify him had they deemed it necessary. The citizen's providing this information directly to the officers, in person, makes the information significantly more reliable than a simple anonymous telephone call.

B. Corroboration

Further, corroboration by matters within an officer's knowledge and experience increases the reliability of the information and, ultimately, the justification of the detention. See Sailo, 910 S.W.2d at 189. Corroboration only of details that are easily obtainable at the time the tip is made will not furnish a basis for reasonable suspicion. J.L., 529 U.S. at 271-72, 120 S.Ct. 1375; Davis, 989 S.W.2d at 864. The observations need not reveal criminal conduct; even innocent acts can give rise to reasonable suspicion under certain circumstances. Woods v. State, 970 S.W.2d 770, 773 (Tex.App.-Austin 1998). The officer must corroborate facts that would lead him or her to reasonably suspect 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." Davis, 989 S.W.2d at 863.

For instance, in Dowler v. State, 44 S.W.3d 666, 670 (Tex.App.-Austin 2001 pet. ref'd), after officers received an anonymous call reporting a suspected drunk driver, they observed the suspect drift within his lane of traffic, drive twenty miles per hour below the posted speed limit, and fail to respond to the patrol car's emergency lights. Id. Such conduct, although not criminal, was sufficient to lend reliability to the anonymous tip and to justify investigative detention of the driver on reasonable suspicion. Id.

Bilyeu relies on Stewart v. State, 22 S.W.3d 646, 648 (Tex.App.-Austin 2000, pet. ref'd), to support her contention that the anonymous tip is insufficient to support reasonable suspicion. Since officers did not observe her commit a traffic offense, she argues, there is no meaningful corroboration of the information provided by the citizen. She calls on this Court to treat the facts before us in a similar manner. In Stewart, according to an anonymous caller, the driver of a green Chevrolet Camaro apparently fell down a couple of times trying to get into his car and appeared to be highly intoxicated. Id. The officers found the suspect's car and followed it for a short time. Id. During...