NO. 07-01-0308 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D APRIL 8, 2002

______________________________ SHAWN O’BRIEN HALL, Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE COUNT Y COURT AT LAW OF W ALLER COUNT Y; NO. CC00-529; HON. JUNE JACKSON, PRES IDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, J.J. Appellant, S ha wn O’Brien Hall, appealed his conviction for driving while intoxicated. The three points of error he asserted concern t h e trial court ’s ref usal to 1)subm it a j ury instruction add res sing thevali dity of t he in iti al stop conducted by the police officers, 2) suppress evidence obt ained vi a an all egedly i lleg al stop, and ( 3) grant a di rected verdi ct
once thesup pos edly

inad m iss ible e vide nceis suppressed. We need only consider the second for

it is dispositive, and, upon considering it, we reverse the judgm ent and rem and the cause.1 Absentfrom the record is any ev idence that the anonym ous tipster im parted the li cense of the

vehicle su pp os ed lytrav eling i n the im proper directi on, the number of occupants therein, the year or make of the t ruck, or any other i nform ation de sc rib ing the vehicl e in volved, s ave for the commen t ab ou t it

being small and red. 2 Backgr ound On Septem ber 9, 2000, an anonym ous individual call ed the W alle r County Sheriff ’s Departm entstating that he or shehad see n a r

ed p ick up t ruc k tr

ave ling s out hbo und in the northbound lane of Highway 6. 1 The sheriff’s dispatcher broadcast th e information to TroopersAnn Gorm ly (Gormly) and Wil ton W hite, Jr. (W hite) of the Texas D epartm ent of Pu blic Safety. Again, the caller’s identity was unknown, as was the location of the caller when the anonymous tip was m ade o r the reliabil ity of the tipster, according to the troopers . Furthe rm ore, therecord fails to disclose when the person madethe call or the
amoun tof time that lapsed between the tim e of the call and the broadcast by the dispatcher. Nevertheless, the tw o troopers proceeded to H ighway 6 to investigate. Approxim ately three to five minutes after receiving the dispatch, the troopers saw
a red pickup truck backing out of or turning around in the driveway of a loca l car dea lers hip located adjacent

to the highway. The business was closed, given that the tim e was 2: 30
a. m. After exiting, the r ed truck then “turned around, pulled back out on [Highw ay] 6 and

. . . proceeded tow

ard Highway 290 e as t bound, got on the ram p and got on 290,” according to a trooper. After the tr uckhad driven about half a m ile, the troopers engaged the ir em ergency lights, stopped the vehicle, questioned the driver, i.e. , appellan t, and administered to h im various field sobriety tests, w hich he purportedly failed. Appellant was then arrested, charged w ith, and convicted of driving while intoxicated.2 One off icer (Gor ml y) did opine that appellant drov e “slow, under the speed lim it” when attem pting

to access Highway 290. Yet, when qu es tio ned, she admitt ed that she could not estim ate his purported speed . Nor did she

say that s uch evinced the inv olv ement of crim inal activ ity in any way. 3 Thatth e o ff ic er s di d n ot kno w t h e direction f rom whic h appellant cam e before entering the dealer ship’s driv eway w as u ndis put ed. Sim ilarly undisputed was that neither peace off

icer saw app ellan t co m m it an y tr aff ic of fen se o r dr ive e rra tica ll y. Nor did they testifythat they

saw app ellant doing anything other than back o ut of t he drivew ay befo re deciding to sto p him . So, the record did and does not disclose the length of time appellant spent at the lot or the reason why he w as ther e (other than toturn aro und or ba ck out ). Gormly also adm itted that though she w as able to see for approx imately tw o m iles at the time, shedid not see appellant traveling in the wrong direction. Next, when quest ioned about the reasons for the stop, both troopers said that the identity between t he description of the vehicle in the an onym ous ti p and that driven by ap pel lant and the tim e fram e caused themto act. To this, Gorm ly added that seeing appellant turn his truck around in the drivewayof a closed busi ness at 2:30 a.m . further aroused her “suspicion.” Yet, White, the more e xperience d trooper who was ac ting as Gormly’s field training officer at the tim e, candidly represented that it was not unusual to
see cars tur nin g around i n the parti cular dri veway at that hour. And, again , both peace officersco nce ded that nei ther had seen app ella nt comm it any traffi c offense, dri ve errati cally, or violate any law prior to stopping hi m. 2 So too did they adm it that butfor the broadcast from the dispatcher 1) they w ould have had no reason to stop appellant or 2) not hing w ould hav e “p eaked” the ir interest in the vehicle. In short, the sole basis for t he stop was the anonym ous tip.3 Appellant raised the issue below via an oral mot ion to suppress urged immedi ately bef ore trial

comm enced, a re qu est for a jur y ins tru ctio n rega rding th e validity of the sto p and the juro rs’ inability to consider tainted ev idence, and a m otion f or directed v erdict. F urthermor e, in each instance, appel lan t founded his contention upon the v alidi ty of the stop. Thus, it i s clear that the quest io n bef ore us was f ir st presented to the trial court as required by Tex as Rule of Appell ate Procedure 33.1. 4 Point Two -- Refusal to Suppress E vidence Through his second point, appellant contended that the s top was illegal and, therefore, the trial court wa s obligated to suppress all evidence obtained as a result of it. 3 W e agree with the contention. Standard of Revi

ew The applicable standard of r eview is d esc ribe d in State v. Wallet t , 31 S.W.3d 329 (Tex. App. --Am arillo 2000, no pet.). W e cite the litigants to that case. Next, a law enforcem entofficer nee d not have probab le cause to s topan in divid ual. He need only have reasonable suspicion that criminal activityis afoot. Held v. State, 948 S .W .2d 45, 51 (Tex. App.--Houston [1 4th Dist.] 1997 , pet. ref’d). Thi s enables hi m t o tem por arily detain (for investigatory purposes) those engaged in the activities creating the
rea son ablesuspici on. Fur thermo re, reasonable suspicion exists w hen the officer has spe cifi cart icula ble facts w hich, when com bined with rational inferences the refrom , w ould allowhim to reas onably suspect that aparticular person has engaged, or is o r so on w ill be engaging, in crim in al activity. Garcia v . State , 43 S.W.3d 527, 530 (Tex. Crim . App. 2001). Thus, the totality of the circum stances m ust be perused. Next, when the circumstances imp licate an anonymous tip, caution mus t be taken. Thisis so because th e tip, standing alone, seldompro vides th e reasonable suspicion
necess aryto authorize an investigative stop and detention. Alabama v. Whi te , 496 U.S.5

325, 329, 11 0 S.C t. 2412 , 110 L. Ed.2d 301 (199 0). In o ther words, “a po lice officer gen era llycan not

rely alone on a police broadcast of an anonym ous phone call to establi sh
rea son ablesuspicion. ” Garcia v . State , 3 S.W.3d 227, 234-35 (Tex. A pp.–Houston [14 th ] 1999, no pet.); see Stewart v. State , 22 S.W.3d 646, 648-50 (Tex. App.–Austin 2000, pe t. ref’d) (holding that an uncorroborated caller’s tip did not cre ate reas onable sus picion); Davis v. State , 989 S.W.2d 859, 862-65 (Tex. App.–A ustin 1999, pet. ref’d) (holding the
sam e). Thisis so b ecause the court hasno way of evaluating the reliabil ity of the information provided by the anonym ous source. Garci a v. State , 3 S.W.3d at 35. Consequentl y, there m ust be som e further indicia from w hich a police off i ce r ma y rea son ably

conclude that the tip is reliable and a detention is justified. Id. ; accord Dowler
v. State , 44 S.W.3d 66 6 , 669-70 (Tex. A pp.–Austin 2001, pet. ref’ d). That indicia may
co me in the form of an officer’s prior know ledge and experience and his corroboration of the details of the tip. Dowler v. State , 44 S.W.3d at 670; Stewart v. State , 22 S.W.3d at 648; Ga rc ia v. State , 3 S.W.3d at 235. Regarding the latter, the tip m ust be corroborated noto nly as to the i dentity of the individual sought to be accused but also as to the improper nature of

his conduct. See Dowler v . State , 44 S. W.3d at

670 (ho lding tha t w hile
an accurate description of the subject’s rea dily ava ilableloca tion and app ear anc e w ill hel p the police co rre ctly

identify the person whom the tipster m eans to accuse, it does notshow thatthe tipster has knowledge of concealed crim inal activity); Stewart v. State , 22 S.W.3d at648 (ho lding tha t th e co rro bor atio n of details tha t ar

e ea sily obtainable at the time of the tip and w hich do no t indicate c rimina l activity w ill not lend supp ort to t he tip).4 The record dis closes tha t at so me po int in tim e, Highway 6 went from a two lane road to a div ided tho rou gh fare . Ye t, it a pp ea rsfrom th e re cor d b efor e u s t ha t it may

ha ve onl y been a two lane road at the point whe re thedealer

ship ’s d riveway inter

sected it. And, to the ext ent that it was, one cannot infer f rom the record before us that appell ant entered the driv eway while trav eling on Highway 6 in any particul ar directi on. 6 Appli cati on of S tandard As previously mentioned, theanonym ous tip served as the basis of the stop at ba r. Each trooper adm itted that; neither saw appellant do anything wrong. And, to the extent the troopers found on Highw ay 6 a vehicle driven by appellant that mat ched t he rather broad and general description of the truck described by the tipster , those indi cia at best serve only to corroborate that app ellant was the subj ect of the tip. They do not illustrate thathe e nga ged or w

as e nga ging in miscondu ct. Instead, ef fort was madeto corroborate the latter aspect of thetip through allusion to the time of night, appellant’s turning around in the dealer ship’s driveway, and t hen driving away at an indeterminable yet law ful speed. Yet, these indicia also fall short of their intended mark. Sim ply put , law fully tur ning aro und on apub li c thorough fare or exiting a private driveway late at night and then driving away at som e lawful speed does not r eason ably suggest that appellant previously drove dow n the road in an illegal ma nner. Nor doe s it suggest that appel lant was engagi ng or about to eng age in cri minal activi ty. 4 Again, the troopersconceded as m uch when they acknow ledged that they personally saw appellant do nothing wrong and thatnothing he did would have “p eaked” thei r intere st in his con duct had they not heard the t ip. We do not have be fo re us ev i de nc e t ha t t he l oc al e i n q ue st i on was a h i gh cr i me area, that appellant stopped at the business f or any m ore than an incidental amount of5 Indeed, one who has driv en on hig hw

ays an d in ter

state s a nd se en oth ers doso cou ld r ea so na bly conclud e that a cces sing same a t a red uced s peed see ms to bea common pra ctice by many

.

6 That TrooperGorm ly considered the practi ce suspicious does not mean that it was for purposes of a Fou rth Amen dmen t an alys is. Thestan da rd a pp lica bleto determ ining the ex istence of probabl e cause and reasonable suspicion is objectiv e, not s ubjective. Dowler v. State , 44 S.W.3d 66 6, 6 70 (Te x. App .–A ustin 2001, pe t. re f’ d). Thu s, an office r’s su bje ctive b elie f tha t s ome a ct is su sp icio us

alo ne do es

no t make

it suspi ci ous. W e must determ ine if the conclusion was reasonable given al l the cir cumstances inv olv ed. And, in th is case , utilizi ng a driveway to turnaro und and th en driving onto a neighboring highw ay at som e inca lcul ab le speed does not, as a matter of l aw, permit an off icer to reasonably deduce that t he conduct was suspicious

. This is especially so where the offic er fai led to testif y that her concl usion was b ased on an y experience or knowledge of the area, cri mi nal conduct, or act iv ities of a driv er late at n ight. In sum, we are le ft holding that G orml y’s observation was nothing more than unfounde d surmise, conjecture or speculation, and su ch is not the stuff of reas onab le su spicion

. Davis v. State , 98 9 S. W.2d 85 9, 8 63 (Te x. App .–A ustin 1999, pet. ref’d). 7 time, that Highways 6 or 290 were rarely traveled at 2:30 a.m ., that it was unusual for

cars to be traveling on those roads at that tim e of night, that those traversing the two highways tended to b e involve d in miscondu ct, that it was unusual for cars to access that portion of Highway 6 or 290 via som e non-descript speed under the p o sted limit, or that appellant drove awa y erra tical ly. 5 Again, each trooper adm itted that nothing would have caused them to question or suspect t he activities of appellant had theynot previously heard the broadcast of the anony mous tip. 6 We recogn iz e that acts or circums tances need not be c riminal in themse lves to create rea son ablesus picio n th at m isc ond uct is afoot. Woods v. State , 956 S.W.2d 33, 38 (T ex. Crim. A pp. 1997). Yet, to the exte nt that one attem pts to use innocent circum stances to create suspici on of that il k, the totali ty of those indi cia must non eth eles s pe rm itone to reasonably

deduce tha t cr im inal activity is af oot. The sam e is true with regard to the corroboration of an anonym ous tip. Whi le the indicia used as corroboration needed not be per se criminal, the y must still be suffi ci ent to perm it one to reasonably deduce that7 The ad miss ion of ille ga llyseized ev idence is tri al err or a nd r equi res r em and f or f urt her pro cee di ngs,

as o ppos ed to a cquittal. Rile y v. State , 825 S.W.2d 69 9, 701 (Tex. Crim. App. 19 92).

8 appellant engaged in the misconduct for which he w

as accused by the tipster. If it does not, then the tip cannot be said to be reliable. Given th e r ec or d d ev el op ed be lo w, one cannot reasonab ly deduce fro m appellant’s
m ere use of the driveway of a closed business to t urn-around late atnight and his failure to then speed away that he had pre viousl y drove down the road il legal ly. Thus, that aspect of the anonym ous tip accusing appe lla nt o f en gag ing in m isc ond uct w as n ot s uff

icien tly corroborated, see Stewart v . State, supra (hol ding tha t th e S tate fa iled to su ffic ient ly corroborate the tip where the officer did not see a ppellant drive erraticall y or com mit a traffic offense), and the tip w as not show n to be reli able. And, si nce thetip w as t he s ole allegation of misconductor truly unusual activity com mitted by appellant, it did not vest the trooperswith probable cause or reasonable suspicion to stop him. In holding otherwise, the trial court erred. Next, the evidence tendered by the State to establi sh appell ant’s intoxicati on arose as a consequence of t he illegal stop. Thus, it wasimp erm issibly tainted . Had t he trial cour t suppressed it as it should have, ther e would have been no basis upon wh ich the State
cou ld have prosecuted appellant; at least the record before fails to indicate that the State had an alterna te way to o r o ther evidence upon which to secure a conviction. Consequently, we further hold that the error was harmful under Texas Rule of A ppellate Procedure 44.2(a). Accordingl y, the judgm ent is reversed and the cause rem anded to the trial court for further pro ceedings. 79 Brian Quinn Justice Publish.