Opinion issued February 5 , 2015.

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 13
- 00546
- CR

——————————— STEVEN GOLDEN , Appella nt V. THE STATE OF TEXAS , Appell e e
On Appeal from Coun ty Criminal Court at Law N o. 4 Harris Count y, Texas Trial Court Ca se No. 1833897



### MEMORANDUM OPINION Following the denial of his pre

- trial motion to suppress, Steven Golden pled nolo contendere to the misdemeanor offense of driving while intoxicated and the trial court assessed punishment at thirt y days in county jail. On appeal, Golden argues that the denial of his motion to suppress was an abuse of discretion because2 the detaining officer did not personally observe anything that would give rise to reasonable suspicion that a crime was afoot and t he citizen informant’s information was conclusory and lacked sufficient articulable facts of criminal activity

. We affirm. Background Kevin Polasek was leaving a home improvement store in Houston, Texas, one afternoon when he saw a truck driving erraticall y in the store’s parking lot. According to Polasek, the truck’s driver , who was later identified as Golden, appeared to be confused and was having trouble finding the lot’s exit

. Polasek followed Golden’s truck as it exited the parking lot and turne d onto the northbound highway. Golden immediately made two u

- turns which, combined with his difficulty navigating the parking lot, made Polasek suspect that Golden was driving while intoxicated. At that point, Polasek called 91 1, identified himself to the dispatc her, and reported his observations along with a description of Golden’s truck and its licen se plate number. Polasek stayed on the phone with the dispatcher and continued to follow Golden’s truck in his own vehicle. At one point, Golden stopped his truck in the middle of the road at a green light, and when Polasek pulled up next to him , he saw that Golden appeared to be asl eep behind the wheel. After Golden drove off, Polasek followed him and watched as Golden drove to a gas station, hitting the3 curb as h e p ulled into the parking lot. Polasek parked nearby and watched Golden, who appeared to be having difficulty getting the gas pump to work. Polasek also notified the 911 dispatcher of Golden’s location, and several police units arrived at the gas station with i n five to ten minutes. Harris County Sheriff Deputies M. Nguyen and W. Trejo responded to Polasek’s call and observed Golden at the gas station just as Polasek had to ld the dispatcher he would be. The information that Polasek had given to the dispatcher , along with Polasek’s name, was relayed to the deputies via their call slips. Deputies Nguyen and Trejo noted that Golden’s vehicle matched Polasek ’s description, a white truck with a stripe , and the exact l icense plate number. Polasek remained in the pa rking lot and watched as the deputies arrive d, assessed the situation, and watched Golden get into his truck and start the engine. At that point, Deputy Nguyen initiated a traffic stop before Gold en could exit the parking lot. After the deputies investigat ed and arrested Golden, Polasek spoke with Deputy Trejo and gave a sta tement confirming what he had seen

. Reasonable Suspicion Golden argues that the trial court abused its discretion when it denied his motion to suppress because the information that Polas ek gave to the dispatcher was conclusory and lacked sufficient articulable facts of criminal activity , and Deputy4 Nguyen did not personally observe anything that would give rise to reasonable

s uspicion that a crime was afoot. A. Standard of Review We review a trial court’s ruling on a motion to suppress under a bifurcated standard o f review. Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Under this standard, the trial court is the sole trier of fact and judge of the credibility of the witnesse s and the weig h t to be given their testimony. Id. When a trial court makes written findings of fact, as it did in the instant case, a reviewing court must examine the record in the light most favorable to the ruling and uphold those fact findings so long a s th ey are supported by the record. See id. We defer to the trial court’ s determination of historical facts if the recor d supports them. See i d

. We review a trial court’s application of the law of search and seizure to the facts de

novo. Id

. A trial court ’s ruling will be sustained if it is “reasonably supported by the record and is correct on any theory o f law applicable to the case.” I d. at 447

– 48 (quoting State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
B. Applicable Law The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. U.S. C ONST
. A MEND
. IV. 1 Brief investigative

1 When, as he re, an appellant does not separately brief state and federal constitutional claims, we assume that he claims no greater protection under the state constitution than that provided by the federal constitution. See Reed v. State ,5 stops , however, such as the traffic stop in this case, are permitted if the law enforcement officer has a reasonable suspicion that so me crime was, or is about to be, committed. See Navarette v. California , 134 S. Ct. 1683, 1687 (2014). Reasonable suspicion exists when a peace officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activ ity.” Id. ; see Derichsweiler v. State , 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). Courts determine if reasonable suspicion exists by objectively viewing the totality of the circumstances. Navarette , 134 S. Ct. at 1687; Derichsweiler , 348 S.W.3d at 914. Whether reasonable suspicion exists to justify a stop depends “upon both the content of the information possessed by police and its degree of reliability.”
Navarette , 134 S. Ct. at 1685 (quoting Alabama v. White , 496 U.S. 325, 330 , 110
S. Ct. 2412 , 2416 (1 990)). T he content of the information possessed by the police includes the totality of the information known collectively to the cooperating peace office rs, including 911 dispatchers. Derichsweiler , 348 S.W.3d at 915 (explaining that 911 dispatcher is rega rded as “cooperating officer” for purposes of determining reasonable suspicion); see also Martinez v. State , 348 S.W.3d 919,
308 S.W.3d 417, 419 n.3 (Tex. App.

— Fort Worth 2010, no pet.); Varnes v. State , 63 S.W.3d 824, 829 (Tex. App.

— Houst on [14th Dist.] 2001, no pet.). Therefore, we will analyze Golden’s claims under the Fourth Amendment of the United States Constitution, following guidelines set by the Un ited States Supreme Court in interpreting the Fourth Amendment. See State v. Guzman , 959 S.W.2d 631, 633 (Tex. Crim. App. 1998).6 924 (Tex. Crim. App. 2011) (stating that “any information known to the police dispatcher is imputed to the detaining officer”).
It is well established that a detaining officer need not personally observe the factual basis giving rise to reasonable suspicion for a traffic stop; rather, a stop may be justified if the facts underlying the traffic stop are observed by another person, i ncl uding a civilian informant. See Navarette , 134 S. Ct. at 1687

– 88; see also Brother v. State , 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) ( “The factual basis for stopping [an individual] need not arise from the officer’s personal observation , but may be supp lied by information acquired from another person.”)

. The amount and detail of corroboration of the information contained within a citizen informant’s tip can support a less reliable report

. Martinez , 348 S.W.3d at 923; Taflinger v. State , 414 S.W.3d 881, 8 85 (Tex. App.

— Houston [1st Dist.] 2013, no pet.). The less reliable the tip, the more corroborating information the police need to justify the stop. Martinez , 348 S.W.3d at 923 (citing White , 496 U.S. at 330); Taflinger , 414 S.W.3d at 885; see Navarette , 1 34 S. Ct. at 1688 (discussing effect of corroboration on reliab ility of anonymous tip). Courts have recognized several indicia of reliability with respect to tips from a citizen inform ant. For example, a tip from a citizen inform ant who identifies himself and holds himself accountable for the veracity and accuracy of his information may be regarded as reliable. Derichsweiler , 348 S.W.3d at 914

– 15;7 Hawes v. State , 125 S.W.3d 535, 538 (Tex. App.

— Houston [1st Dist.] 2002, no pet.). An anonymous tip, on the oth er hand, rarely rises to the level of suspicion required to justify a detentio n without sufficient police corroboration . White , 496 U.S. at 329, 110 S. Ct. at 2416

. The citizen informant’s firsthand account and detailed description of wrongdoing i ncrease s the reliability of his information. Hawes , 125 S.W.3d at 539 ; see also Navarette , 134 S. Ct. at 1689 (stating that contemporaneous eyewitness reports of suspected criminal activity have “long been treated as especially reliable”). Courts consider an inform ant who is not connected with the police inherently trustworthy when advising the police of suspected criminal activity. Taflinger , 414 S.W.3d at 885

. The Supreme Court has recognized that use of the 911 emergency system, which “has some features that allo w for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity,” is another indicia of reliability. Navarette , 134 S. Ct. at 1691

– 92. C. Analysis Golden argues that the trial court abused its discretion when it denied his motion to suppress because Polasek’s tip failed to establish reasonable suspicion because Polasek merely claimed that he thought that Golden was driving while intoxicated and he did not give specific articulable facts of Golden’s criminal

ac tivity

. Golden further contends that Deputy Nguyen could not rely on Polasek’s8 tip, and therefore, he could only have lawfully detained Golden if the officer personally observed something that would give rise to reasonable s uspicion that a crime was afoot, which the officer admits he did not

. Here, Polasek testified that he became concerned that Golden was driving while intoxicated because he watched Golden driving erratically in the store’s parking lot only to immediately make two successive u

- turns on th e highway once he got onto the road. He then followed Golden in his own vehicle and immediately called 911 to report his suspicion s and Golden’s driving to law enforcement. Polasek, who was on the phone with the 911 dispatcher from the time he followed
Go lden’s vehicle out of the store parking lot until Golden was stopped by Deputy Nguyen , testified that he contemporaneously relayed his observations of Golden’s erratic driving to the 911 dispatcher. Specifically, Polasek told the dispatcher that Golden cou ld not drive in a straight line, stopped at green lights, fell asleep behind the wheel, and drove his vehicle up on the curb when he pulled into the gas station parking lot. Polasek also gave the dispatcher his name and a description of his vehicle, along with a description of Golden’s vehicle (white truck with a stripe) and its complete license plate number. Deputy Nguyen testified that the information that Polasek provided to the dispatcher was relayed to him and the other officers via their call slips.9 T his case is similar in many ways to the recent Supreme Court decision in
Navarette

. In that case, a 911 caller reported that a driver in a s ilver Ford 150 pickup ran her vehicle off the roadway near a spe cific mile marker five minutes earlier while driving southbound on Highway 1, and she provided the truck’s license plate information. Navarette , 134 S. Ct. at 1686

– 87

. Law enforcement detained the pickup truck driver less t han twenty minutes later on southbound Highway 1, as reported by the 911 caller. Id. The Supreme Court held that the caller’s tip contained adequate indicia of reliability to support reasonable suspicion because the content of the tip indicated that it was based on eyewitness knowledge, was contemporaneously made, and was made to the 911 e mergency system

. Id

. The Supreme Court also found persuasive the fact that the 911 caller in Navarette reported more than a minor traffic infraction and more than a conclusory allegation of drunk o r reckless driving. Instead, she alleged a specific and d angerous result of the driver’ s conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. Running another vehicle off th e road suggests lane

- positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. Id. at 1691

. The Court reasoned that “[r]easonable suspicion depends on ‘the factual and prac tical considerations of everyday life on which reasonable and prudent men, not legal technicians, act[] ’ [and u] nder that commonsense approach,10 we can appropriately recognize certain driving behaviors as so und indicia of drunk driving.” Id

. at 1690. Polas ek provided the 911 dispatcher with specific information of Golden’s dangerous driving that exceeded in detail and volume the information provided to the police in Navarette (e.g., inability to drive in a straight line, stopping at a green light, sleeping behind the wheel , and hitting a curb while pulling into a parking lot), all of which amount to more than mere traffic violations and , when considered together, are “ so und indicia of drunk driving.” See i d

. Furthermore, also like in Navarette , Polasek repor ted Golden’s driving to law enforcement via the 911 system, Polasek’s description of Golden’s erratic driving to the 911 dispatcher indicated that the tip was based on his eyewitness knowledge, and Polasek told the dispatcher that he was following Golden a nd he made a contemporaneo us report of his observations. Unlike the twenty minute gap
in Navarette , l aw enforcement found Golden parked at the gas station within minutes of Polasek reporting the vehicl e’s location to the dispatcher , all the while the vehic le remained under the citizen informant’s constant observation

. All the factors recognized as indicia of reliability in Navarette are present in this case

. See id

. at 1691

– 92

. Furthermore, unlike in Navarette , in which the 911 caller was considered “anonym ous” for purposes of the Court’s analysis, this case contains additional indicia of reliability because Polasek made himself accountable for his11 tip by identifying himself and his vehicle, and staying at the gas station in order to give his statement to th e deputies. See Martinez , 348 S.W.3d a t 923 (noting that when citizen informant provides self

- identifying information, his degree of reliability “significantly improves”); see also Derichsweiler , 348 S.W.3d at 914

– 15 ( noting that “information pr ovided to p olice from a citizen informant who identifies himself and may be held to account for the accuracy and veracity of his report may be regarded as reliable.”). Golden tak es issue with the fact that Polasek did not have contact with Officer Nguy en prior to the stop. A citizen informant does not have to have contact with the officer who performs the stop in order for the stop to be lawful. See
Navarette , 134 S. Ct. at 1688

– 89 (holding officer, who had no interaction with 911 caller and did no t observe defendant commit any traffic violations, had reasonable suspicion to stop defendant’s vehicle based on information caller provided to 911 system). Furthermore, the record establishes that Polasek was in constant contact with the 911 dispatcher fo r over twen ty minutes preceding the stop. See Derichsweiler , 348 S.W.3d at 91 4

– 1 5 (explaining that 911 dispatcher is regarded as “cooperating officer” for purposes of determining reasonable suspicion); Martinez , 348 S.W.3d at 924 (stating that “any informa tion known to the police dispatcher is imputed to the detaining officer”).12 We hold that Deputy Nguyen had reasonable suspicion to stop Golden’s vehicle in the gas station parking lot based on the information Polasek provided to the 911 dispatcher, pursuant to Navarette

. I t was not necessary for Deputy Nguyen to wait until he personally observed something that would give rise to reasonable

sus picion that a crime was afoot. See Brother , 166 S.W.3d at 259 (“To require officers who are apprised of detailed fact s from citizen

- eyewitnesses to observe suspects and wait until additional suspicious acts are committed, would be foolish and contrary to the balance of interests struck in Terry and its progeny.”). Accordingly, we overrule Golden’s challenge to the trial court’s denial of his motion to suppress. Conclusion We affirm the trial court’s judgment

.

Russell Lloyd Justice
Panel consists of Justices Jennings, Massengale , and Lloyd

. Do not publish. T EX
. R. A PP
. P. 47.2(b).