## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00381-CR
THE STATE OF TEXAS STATE V. RANDALL LEE BINKLEY A PPELLEE

---------- FROM THE 415TH DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO. CR16-0307

---------- 

### OPINION

---------- Deputy Christopher Kristufek of the Parker County Sheriff’s Office stopped Appellee Randall Lee Binkley in the Horseshoe Bend areasolely because of an “unconfirmed” return from the state vehicle insurance database regarding whether Binkley’s vehi cle had liability insurance. Deputy Kristufek ultimately arrested Binkley for driving wh ile intoxicated–felony repetition (DWI), a grand jury indicted him, and Binkley filed a motion to suppress all evid ence gleaned from2 the stop. The trial court granted the motion. Neither party requested findings of fact and conclusions of law, and the trial court did not issue them. In its interlocutory appeal, the State contends in its sole point that “sufficient reasonable suspicion existe d to stop [Binkley’s] vehicle when the detaining deputy received information from the state vehicle insurance database that the insurance policy on said vehicle ha d been expired for ov er five months.” Deferring to the trial court’s resolution ofconflicts in the test imony and the weight to be accorded the evidence, we affirm the trial court’ s order granting Binkley’s motion to suppress. I. STATEMENT OF FACTS A. Evidence Regarding Binkley’s Stop Deputy Kristufe k testified:

 He was employed as a patrol depu ty on or about January 24, 2016;

 He was leaving the Horseshoe Bend area when he noticed “a vehicle driving a little slow”;

 He entered the license plate number into his in-car database and found out that the car was registered to Binkley;

 The database showed “unconfirmed” regarding the liability insurance on the vehicle Binkley was driving;

 Deputy Kristufek did not remember whether the database reported any details other than “unconfirm ed” regarding Binkley’s stop;

 Deputy Kristufek stopped Binkley’s ve hicle “just to verify the actual insurance, if there was insurance on the vehicle”;

 Deputy Kristufek noticed that the database appeared to be working correctly that day;3  The database did not give him any error messages that day;

 He had no reason to think that t he database was any less reliable on Binkley’s traffic stop than it was on other traffic stops; and

 After looking at the printout from Binkley’s stop, Deputy Kristufek noticed that Binkley’s insurance po licy was effective July 1, 2015, and had expired Au gust 1, 2015. The printout related to Binkley’s st op was admitted as State’s Exhibit No. 3. It indicates that the insurance stat us of the vehicle he was driving was “Unconfirmed,” that the “Vehicle Coverage [had] Expired,” and that the “Vehicle[’s] Last Match [was ] Not within 45 days.” B. Evidence Regarding the Database and Its Reliability Deputy Kristufe k testified:

 In addition to ownership and regi stration informatio n, the database would also provide a vehicle’s “VIN number, the type of vehicle, the make, the model, if it has a colo r unknown or known—and it[ would] give the color on that—and then it[ would] give . . . an insurance brief which is confirmed, unconfir med or verify manually”;

 “Verify manually [means] that ei ther the company hasn’t added the insurance to the database yet or they haven’t uploaded or they’re just such a small company that theydon’t put it into the database”;

 He would not stop vehi cles when the return said “verify manually” because “maybe they do have insu rance, maybe they don’t. But nine times out of ten if [he] ma[d]e that stop, they[ would] be like, well, here’s my insurance and th en the stop [would be] done”;

 The database also indicated if a ve hicle was “current on insurance” and whether any warrants were asso ciated with the specific plate number;

 He performed a database search on vehicles “every day that [he] work[ed]” as a patrolman, “30 to 40 times [per] hour”;4  “Unconfirmed insuranc e is when a person pretty much doesn’t pay or their insurance has fallen off with in, like, 45 days or so. And it’ll say unconfirmed no later—or later th an 45 days. I mean, just little specifics. And sometimes it wo n’t. It just says unconfirmed”;

 In his opinion, the in-car database is reliable based on “The number of vehicles that [he] look[s] through. . . . [Y]ou’ll look through 100, 200 vehicles with just license plates alone, and 99 of them will have current insurance or verify manually. There will be that one that doesn’t. And at that point you—I mean , yeah, is it possible that there’s two [vehicles] that could be side by side and you just pick an unconfirmed or whatever, yeah. . . .”;

 “Sometimes you’ll get sporadic wh ere you’ll have issues with two— one will be verify manually, [and] one would be unconfirmed [on the same vehicle]”;

 He speculated that maybe that error occurred because the person had just purchased the insurance policy but admi tted that he did not know;

 He did not know if those who inpu t the data had any incentive to be accurate;

 He did not know of any rates of error associated wi th the database;

 He did not know of any insura nce company being more accurate than others;

 He did not know but assumed thatpeople would have to go through their insurance companies to correctthe information in the database;

 He had not learned anything abou t the database during training in his two years as a patrol officer before the stop;

 He did not know the name of the program that allowed him to have the information in his patrol car, or when it was established;

 He did not know who entered the information into the database or how often it was updated;

 He did not know of safeguards to ensure the database’s accuracy;5  He did not know how the data base handled self-insured people;

 DPS administered the program;

 “[M]aybe three or four” times a week , he would pull over a driver to investigate an “unconfirmed return ,” and the driver would provide him with proof of insurance;

 Deputy Kristufek testif ied that he “would stop about three or four vehicles” per week;

 He testified that he would “probably do about two or three . . . investigations for the insurance. An d a traffic stop is totally different than a traffic investigation”;

 He testified that he would make three tra ffic investigations for unconfirmed insura nce in a week;

 He testified that in one of the th ree cases, the person would actually have insurance;

 He conducted an esti mated twenty-five traffi c stops per week, but “not for the unconfirmed insurance.” He said that th e deputies could not “do a traffic stop for justunconfirmed insurance”; and

 He answered affirmatively ques tions asking whether he had run “thousands and thousands and thousand s” of plates while on patrol and whether he found the data base reliable and accurate. Melissa Burkhardt, coordinator of the TexasSure Vehicle Insurance Verification program for the Texas Depart ment of Insurance (TDI), testified:

 The program “matches registered ve hicles to insurance policies and provides that information to . . . end users with the Department of Motor Vehicles [DMV] and” DPS;

 The program has been in existence since 2008;

 “[T]he database is maintained bya third-party vendor that’s managed by the State”;

 The only third-party vendor to have maintained the database since 2008 is HDI Solutions;6  HDI Solutions also created the database;

 “[A]ll insurance companies that writ e personal auto policies in the state of Texas are required to repo rt to [the] vendor once a week all insurance policies that are in force”;

 “[T]he vendor also gets informati on on the registered vehicles from the . . . [DMV]. They report th at information once a week”;

 More than 300 insurance compan ies report to the database;

 “It’s approximately 43 million records per week”;

 All of that information is input into one database;

 New insurance typically takes three weeks to be reflected in the database;

 TDI has had no issues with the third-party vendor regarding “information links” or ongoing “mistakes”;

 TDI has quality control systems in place to maintain the third-party vendor’s quality and control;

 Data leaks would be addressed immediately;

 Four possible responses “come ou t of the TexasSure database”: “[C]onfirmed, unconfirmed, not found, [and] multiple”;

 But “DPS is responsible for how that insurance displays to law enforcement throug hout the state”;

 It is her understanding that DP S uses “verify manually” for any returns that would otherwise be “not found” and “multiple”;

 “Unconfirmed means that the vehi cle was located, but either the policy hasn’t been reported in more than 45 days or the policy is more than 21 days expired”;

 The only reason other than lag time she could think of for the 33% error rate Deputy Kristufek expe rienced would be “an error in the way their information was recorded by their [insurance] company”;

 TDI does not keep records regarding rates of error;7  Self-insurance is maintained by DPS, and DPS report s to the vendor weekly;

 TexasSure is the only database used in Texas that matches the registration to the insura nce of a private vehicle;

 The vendor sends written notice to ow ners of registered vehicles that go 90 days without an insurance ma tch that the database does not show that they have insurance;

 In her opinion, the database is re liable in spite of the 33% error rate experienced by Deputy Kristufek;

 Since its inception, the databa se has been “unavailable[,] . . . down[,] or broken” “for five seconds here or there, but nothing significant”;

 She had no independen t recollection that th e database was not accessible on January 24, 2016; and

 She knew nothing ab out Binkley’s case. II. MOTION TO SUPPRESS A. Standard of Review We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State , 800 S.W.2d 539, 543 (T ex. Crim. App. 1990); Best v. State , 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the witnesses’ credi bility and the weight to be given their testimony. Wiede v. State , 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross , 32 S.W.3d 853, 855 (T ex. Crim. App. 2000), modified8 on other grounds by State v. Cullen , 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total defe rence to the trial court’s rulings on (1) questions of historical fa ct, even if the trial court’s determination of those facts was not based on an evaluation of cred ibility and demeanor, and (2) applicationof-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador , 221 S.W.3d at 673; Montanez v. State , 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Johnson v. State , 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witne sses, we review the trial court’s rulings on those questions de novo. Amador , 221 S.W.3d at 673; Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson , 68 S.W.3d at 652–53. Contrary to the State’s asse rtions, material facts of th is case are in dispute; we therefore view the evidence in the lig ht most favorable to the trial court’s ruling. See Wiede , 214 S.W.3d at 24; State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the record is sil ent on the reasons for the trial court’s ruling, or when there are no explicit fact findings and ne ither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would supp ort the trial court’s ruling ifthe evidence, viewed in the light most favorable to the trial co urt’s ruling, supports those findings. State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede , 214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless9 the implied fact findings su pported by the record are al so dispositive of the legal ruling. Kelly , 204 S.W.3d at 819. We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens , 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State , 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied , 541 U.S. 974 (2004). B. Reasonable Suspicion A detention, as opposed to an arre st, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an indi vidual is violating the law. Crain v. State , 315 S.W.3d 43, 52 (Tex . Crim. App. 2010); Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articula ble facts that when combined with rational inferences from th ose facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford , 158 S.W.3d at 492. This is an objective standard that disregards any subjective inte nt of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.10 Reasonable suspicion is a lower level of suspicio n than probable cause, and probable cause “falls fa r short of a preponderance ofthe evidence standard.” Baldwin v. State , 278 S.W.3d 367, 371 (Tex. Crim . App. 2009). Nevertheless, reasonable suspicion is de pendent on both the conten t of the information known to police and its level of reliability. Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990). C. Stops Based on “Unconfirmed Insurance” Returns As we stated in Ellis v. State , Texas drivers must maintain proof of responsibility for their vehi cles. No. 02-16-00309-CR , 2017 WL 5618686, at *4 (Tex. App.—Fort Worth Nov. 22, 2017, pet. filed) (Pittman, J.); see Tex. Transp. Code Ann. § 601.051 (West 2011 ). Operating a vehicle for which no financial responsibility has been establis hed is a misdemeanor punishable by a fine. Ellis , 2017 WL 5618686, at *4; see Tex. Transp. Code Ann. § 601.191 (West Supp. 2017).Cases addressing the validity of stops based on an officer’s databasederived suspicion from ambiguous terms lik e “unconfirmed” that the driver may be committing this misdemeanor fall into tw o general groups: cases in which the evidence dispels the ambiguity and shows that the data is reliable and cases in which the evidence falls short of doing so. Ellis , 2017 WL 5618686, at *4; see United States v. Broca-Martinez, 855 F.3d 675, 678–79 (5th Cir. 2017) (noting that federal appellate cases addressing th e issue turn on evidence of reliability).11 1. Cases in Which Reliability of the Database Return Was Established Two of this court’s previ ous cases are illustrative ofthat group of cases in which the evidence supports a reliability finding and an ultimate determination of reasonable suspicion. In Swadley v. State , the evidence showed:

 What “unconfirmed” meant to the arresting officer, based on his training and experience;

 That the database was accura te and reliable based on the officer’s extensive experience;

 That the database wa s updated weekly; and

 What the possible responses from the database were and what they indicated. No. 02-15-00085-CR, 2016 WL7241564, at *1, *3, *6 (Tex. App.—Fort Worth Dec. 15, 2016, pet. ref’d) (mem. op., not designated for publication). Our court therefore upheld the trial court’s determi nation that the officer had reasonable suspicion, concluding (1) th at the officer had sufficient, specific articulable facts from which he could rationally infer th at Swadley’s vehicle had an insurance issue justifying further investigation and (2) that the evidence supported the finding that the database wa s “sufficiently reliable.” Id. at *6. In Ellis , Ellis argued that evidence di d not establish the database’s reliability, 2017 WL 5618686, at *6, but the arresting officer testified:

 He had used the database “[t]e ns of thousands” of times;

 Only “a handful” of the “(h)undreds , if not thousands” of returns of “unconfirmed” he received from th e database were in error; and

 The database was “very” accura te based on his experience.12 Id. We therefore upheld “the trial court’ s implicit finding that [the officer’s] knowledge was sufficient to es tablish the database’s reliab ility for the purposes of establishing reason able suspicion.” Id. at *7. 2. Cases in Which Reliability ofa Database Return Was Not Established At the other end of the spectrum, two of our sister courts’ cases and a Tenth Circuit opinion authored by now Supreme Court Justice Neil Gorsuch present situations in which the evidence di d not prove the database’s reliability. In Gonzalez-Gilando v. State , the database returned “unavailable,” “not available,” or “undocumented” regardi ng liability insurance coverage when troopers and a deputy sheriff typed in the information for Gonzalez-Gilando’s vehicle. 306 S.W. 3d 893, 894–95 (Tex. App.—Ama rillo 2010, pet. ref’d). The deputy testified that the return led him tobelieve that the vehicle did not have insurance coverage, but he did not explain why. Id. at 896–97. On the other hand, one of the troopers testified that th e return could have meant either that the vehicle was insured or that it was not insured. Id. at 897 n.2. No other evidence:

 Examined where the information in the database came from;

 Described what “unavailable,” “not available,” or “undocumented” meant;

 Demonstrated the error rate of the database;

 Established the age of the in formation in the database; or

 Proved the database was even acce ssible to the deputy or troopers at the time of the arrest.13 Id. at 897. Our sistercourt in Amarillo t herefore held that th e deputy’s inference was not reasonable and that he lacked reasonable suspicion for the stop. Id. In State v. Daniel , the State stipulated that the sole reason for the stop was that the vehicle’s status was “unconfirm ed” by the database, and no evidence concerning the meaning of th at term was mentioned in the opinion. 446 S.W.3d 809, 811–16 (Tex. App.—San Anto nio 2014, no pet.). Relying on GonzalezGilando , our sister court in San Antonio upheld the trial co urt’s determination that the arresting officers lacked reasonable suspicion. Id. at 815–16. In United States v. Esquivel-Rios , a Kansas trooper asked his dispatcher to verify a minivan’s temporary Colora do tag number with a law enforcement database. 725 F.3d 1231, 123 4 (10th Cir. 2013). Th e dispatcher replied, “[T]hat’s a negatory on record , not returning,” but also said, “Colorado temp tags usually don’t return.” Id. at 1234, 1235. The troo per testified that he had “experienced (Colorado temporary tags) returning not on file.” Id. at 1238 (emphasis removed). Nevertheless, the district court concluded, [T]he trooper had reasonable susp icion to believe the minivan was displaying a forged tag. In Kans as, as elsewhere, vehicles must be registered with some lawful author ity. When a law enforcement database yields no information about a registration tag, the [district] court reasoned, that raises a non-t rivial possibility the tag wasn’t lawfully issued in the first plac e but falsified in some way. Id. at 1235. The district court also fo und that the trooper “had encountered Colorado temporary tags before, and had them come back on file when he ran14 them through dispatch.” Id. at 1238. Justice Gorsuch explained why the appellate court rejected the district court’s ruling: The district court’s reasoning was right as far as it went. This court and others have regularly upheld traffic stops based on information that the de fendant’s vehicle’s r egistration failed to appear in a law enforcement data base—at least when the record suggested no reason to worry ab out the database’s reliability. The difficulty we face in this case stems from that last and critical qualification. When Trooper Dean asked about the minivan’s temporary tag, the dispatcher replie d not only that the tag yielded a “no return” response from the qu eried database. The dispatcher also added that “Colorado temp tags usually don’t return.” And this is a piece of evidence our case s haven’t confronted before: evidence admitted by a district co urt suggesting that the database on which the officer relied to just ify his stop might bear a real problem—a problem that might mean a “no return” doesn’t suggest criminal conduct but only some bureaucratic snafu.

. . . . The Fourth Amendment reas onable suspicion analysis requires a careful consideration of t he “totality of the circumstances.” Yet in a case that hi nges entirely on the reliability of a computer database, the district court over looked one critical circumstance— the dispatcher’s comment—casting dou bt on its reliability. And the district court misstated another crit ical circumstance doing the same thing—Trooper Dean’s comment about his experience with the database. All of the relevant circumstances, thus, were not considered. Id. at 1235, 1238 (citations omitted); see also Broca-Martinez, 855 F.3d at 678– 79 (“[A] state computer dat abase indication of insura nce status may establish reasonable suspicion . . . as long as th ere is either some evidence suggesting the database is reliable or at least an abse nce of evidence that it is unreliable.”).15 Like the courts in Ellis and Gonzalez-Gilando , however, the Esquivel-Rios court heard very little evidence ab out the insurance database itself. See Esquivel-Rios , 725 F.3d at 1236. D. We Uphold the Trial Court’s Determination of No Reasonable Suspicion After Considering the “ Totality of the Circumstances.” This case does not fall clearly into eit her group. Rather, the record in the case before us contains a plethora ofinformation about the database and testimony supporting its reliability, but it also cont ains evidence casting doubt on the reliability of the database, such as:

 Deputy Kristufek’s testimony that he “would stop aboutthree or four vehicles” per week coupled with his testimony that in a week, “maybe three or four” times, he would pull someone over to investigate an “unconfirmed return ,” and the driver would provide him with proof of insurance;

 Deputy Kristufek’s testimony thathe would make three traffic investigations for uncon firmed insurance per we ek and in one of the three cases, the person would actually have insurance; and

 Database coordinator Melissa Burk hardt’s testimony that she could not explain the error rate experien ced by Deputy Kristufek and that TDI does not keep record s on rates of error. We are presented with a close case. Had the trial court denied Binkley’s motion to suppress and he appealed, given the same re cord and the applicable standard of review, we likely would have affirmed the trial court’s decision. See Garcia-Cantu , 253 S.W.3d at 241; Wiede , 214 S.W.3d at 25; Ellis , 2017 WL 5618686, at *7; Swadley , 2016 WL 7241564, at *6. This case’s procedural posture—a State’s appeal of the trial court’s order granting a defendant’s motion to supp ress—does not affect the standard of review: we16 must imply the necessary fact findings thatwould support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial court’s ruling, supports those findings. Garcia-Cantu , 253 S.W.3d at 241; see Wiede , 214 S.W.3d at 25. Viewing the evidence in the light most favorable to the trial court’s ruling, the trial court attached greater significa nce and credibility to Deputy Kristufek’s testimony indicating a weeklyerror rate of 33% and pote ntially up to 100% in his experience with the database and to database c oordinator Burkhardt’s inability to explain the error rate experienced by Depu ty Kristufek. That evidence supports the trial court’s implied finding that the database was not reliable. The undisputed evidence shows t hat Deputy Kristufek had no basis for the stop other than the return from the database. AsJustice Gorsuch wisely recognized, “[W]orries about a computer database’s reliability might diminish if officers also possess other facts independently suggestive of unlawful activity.” EsquivelRios , 725 F.3d at 1236. Thus, considering th e totality of the circumstances in the record before us, we hold that the trial court did not err by implicitly finding that Deputy Kristufek did not have reasonab le suspicion to support the stop. III. CONCLUSION Consequently, we overrule the State’s sole point, and we affirm the trial court’s order granting Bink ley’s motion to suppress.17 /s/ Mark T. Pittman MARK T. PITTMAN JUSTICE PANEL: SUDDERTH C.J.; GABRIEL and PITTMAN, JJ. PUBLISH DELIVERED: February 8, 2018