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Date: 05-21-2021
Case Style:
Birdie Jean Jackson v. The State of Texas
Case Number:
02-19-00370-CR
Judge: Dana Womack
Court: Court of Appeals
Second Appellate District of Texas
at Fort Worth
Plaintiff's Attorney: Jameson Brooks
Bryce Perry
Defendant's Attorney:
Description:
Fort Worth, Texas - Criminal defense attorney represented Birdie Jean Jackson with a discharge of a firearm in certain municipalities charge.
After responding to a 911 call regarding gunshots and a white vehicle speeding
away, a police officer saw Jackson’s white vehicle near the scene and stopped her.
Jackson promptly admitted that she was the person who had fired the gunshots.
At trial, Jackson filed a motion seeking to suppress all the evidence that the
State procured as a result of the officer’s traffic stop. She asserted that the police had
stopped her vehicle “without having . . . any reasonable suspicion of criminal activity”
or without having observed any traffic violations, that she was stopped based on an
anonymous 911 call, and that the detaining police officer had not developed any kind
of reasonable suspicion of criminal activity “past, present[,] or future of any kind . . .
in relation to the vehicle in which [she] was traveling [before] asking [her] questions.”
The hearing on Jackson’s motion to suppress featured only one witness,
Officer Allen J. Russell of the Wichita Falls Police Department. He testified that he
responded to a 911 firearm-discharged call on April 10, 2018. Officer Russell stated
that an anonymous 911 caller reported having heard three gunshots on Irene Lane
and then having seen a newer white Suburban “speeding away from the gunshots.”
Officer Russell stated that he thought that the caller made the 911 call five to
six minutes after hearing the gunshots. He acknowledged not knowing when the 911
call was made in relation to when he was dispatched. 4
Because shooting calls take priority over all others, Officer Russell said that he
and his partner responded immediately. Officer Russell maintained that he arrived
quickly after being dispatched, but he did not know the precise time.
Regarding the scene, Officer Russell explained that Irene Lane had only three
houses on it and that after the third house, Irene Lane ended in a cul-de-sac. On the
other side of Irene Lane was a church, but Officer Russell thought that the church
used Harding Street as its address.
The officers fairly quickly found three shell casings in the yard at 810 Irene
Lane, which was “maybe” the second house on the street. Officer Russell and his
partner knocked on the door at 810 Irene Lane, but no one answered, and nobody
was outside either. Meanwhile, the officers spotted a neighbor outdoors at the corner
house.
While documenting the shell casings, Officer Russell stated that “a newer white
SUV pulled up to Irene, . . . stopped, saw us, and then pulled out and left quickly.”
Officer Russell thought the SUV had acted suspiciously. The SUV did not pull up to
810 Irene Lane but pulled up to the corner house, so Officer Russell asked the
neighbor who was outside that house about the vehicle, but the neighbor denied
knowing whose SUV they had just seen.
“We saw . . . the SUV pull in and pull out, and we decided to jump in and
follow it because we thought it matched the description,” explained Officer Russell.5
He thought that the SUV was the vehicle described in the 911 call, and on that basis,
Officer Russell asserted that he had reasonable suspicion to stop it.
The vehicle that Officer Russell stopped was not a Suburban (described in the
911 call) but was a white GMC Yukon. Officer Russell explained that once he got
behind the vehicle, he could see that it was not a Suburban, but he added, “A
Suburban and Yukon look very similar.” Officer Russell acknowledged that there
were “[p]robably a fair number” of white SUVs in that area of town.
When asked to justify the traffic stop, Officer Russell responded: “I believe
that I had enough reasonable suspicion that somebody might be injured or something
like that with a shell casing in the yard, so we stopped the vehicle because it matched
the description[,] and [I] wanted to look and see if they knew what happened there.”
After Officer Russell stopped the SUV, he asked its driver—Jackson—what had
happened at 810 Irene Lane, and she responded that she had used a handgun that she
had just recently purchased to fire shots into the air to blow off some steam. From
the time Officer Russell was dispatched to the time he stopped Jackson was about
thirty-four minutes.
Officer Russell clarified that officers do not receive the actual 911 call but
receive instead a pop-up on a computer screen with all the information from the
caller. He explained that dispatch also reads some of the more important details to
the officers over the radio. 6
After hearing the evidence, the trial court denied Jackson’s motion to suppress.
Jackson requested and the trial court signed findings of fact and conclusions of law.
III. DISCUSSION
The law recognizes three distinct types of interactions between the police and
citizens: (1) consensual encounters that do not implicate the Fourth Amendment;
(2) investigative detentions that are Fourth Amendment seizures of limited scope and
duration that must be supported by a reasonable suspicion of criminal activity; and
(3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only
if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App.
2013). A police officer is as free as any other person to approach citizens to ask for
information or cooperation. Id.
A. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. 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 (Tex. 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’ credibility and the weight to be given their testimony. Wiede v. State,
214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to
the trial court’s rulings on (1) questions of historical fact, even if the trial court 7
determined those facts on a basis other than evaluating credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on evaluating 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 witnesses’
credibility and demeanor, 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.
Stated another way, when reviewing the trial court’s ruling on a suppression
motion, we must view the evidence in the light most favorable to the ruling. Wiede,
214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When
the trial court makes explicit fact findings, we determine whether the evidence, when
viewed in the light most favorable to the trial court’s ruling, supports those findings.
Kelly, 204 S.W.3d at 818–19. We then review the trial court’s legal ruling de novo
unless its explicit fact findings that are supported by the record are also dispositive of
the legal ruling. Id. at 818.
Even if the trial court gave the wrong reason for its ruling, we must uphold the
ruling if it is both supported by the record and correct under any applicable legal
theory. 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).8
B. The Traffic Stop
Jackson contends that Officer Russell had insufficient information to
reasonably suspect that her vehicle was linked to any criminal activity. She
emphasizes that the anonymous tip did not articulate what connection, if any, the
white vehicle had to the gunshots and that Officer Russell did not see her do anything
illegal. She concludes that an essential component to the traffic stop—reasonable
suspicion that her SUV had been or was engaged in criminal activity—was missing.
1. Officer Russell responded to an anonymous call.
Jackson argues that Officer Russell was relying on an anonymous tip that did
not provide adequate details to ensure any reliability and, further, that Officer Russell
had no independent observations ensuring reliability. See Florida v. J.L., 529 U.S. 266,
270, 120 S. Ct. 1375, 1378 (2000); see also Navarette v. California, 572 U.S. 393, 404–14,
134 S. Ct. 1683, 1692–97 (2014) (“After today’s opinion all of us on the road, and not
just drug dealers, are at risk of having our freedom of movement curtailed on
suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of
careless driving. I respectfully dissent.”) (Scalia, J., dissenting). The State, in contrast,
contends that the anonymous 911 call was sufficiently detailed and that Officer
Russell’s objective observations confirmed the 911 call’s accuracy.
a. Anonymous tips present reliability concerns.
Anonymous tips alone seldom reflect how informants acquired their
knowledge or whether the informants are trustworthy. Navarette, 572 U.S. at 397, 9
134 S. Ct. at 1688. Ordinary citizens generally do not explain how they came about
their information, and an anonymous tipster’s veracity is largely unknown and
unknowable. Id., 134 S. Ct. at 1688. Yet under appropriate circumstances, an
anonymous tip can show sufficient indicia of reliability to provide reasonable
suspicion to make an investigatory stop. Id., 134 S. Ct. at 1688.
For example, in one instance, the United States Supreme Court recounted how
an anonymous tipster had told the police that a woman would drive from a particular
apartment building to a particular motel in a brown Plymouth station wagon with a
broken right taillight and that the woman would be transporting cocaine. Id. at 397–
98, 134 S. Ct. at 1688 (citing Alabama v. White, 496 U.S. 325, 331, 110 S. Ct. 2412,
2416–17 (1990)). After the officers confirmed certain details, they stopped the station
wagon as it neared the motel and found cocaine in it. Id. at 398, 134 S. Ct. at 1688
(citing White, 496 U.S. at 331, 110 S. Ct. at 2416–17). The United States Supreme
Court held that the officers’ ability to corroborate various details made the
anonymous tip sufficiently reliable to create reasonable suspicion of criminal activity.
Id. at 398, 134 S. Ct. at 1688 (citing White, 496 U.S. at 331, 110 S. Ct. at 2416–17).
In contrast, the United States Supreme Court held in another case that no
reasonable suspicion arose from a bare-bones tip that a young male in a plaid shirt
standing at a bus stop was carrying a gun. Id. at 398, 134 S. Ct. at 1688 (citing J.L.,
529 U.S. at 268, 120 S. Ct. at 1377). The tipster did not explain how he knew about
the gun and did not suggest that he had any special familiarity with the young man. 10
Id. at 398, 134 S. Ct. at 1688 (citing J.L., 529 U.S. at 271, 120 S. Ct. at 1379). As a
result, the Court concluded that the police had no basis for believing the tipster’s
allegation of concealed criminal activity. Id. at 398, 134 S. Ct. at 1688 (citing J.L.,
529 U.S. at 272, 120 S. Ct. at 1379). Furthermore, the tip included no predictions of
future behavior that the police could use to corroborate and assess the tipster’s
credibility. Id. at 398, 134 S. Ct. at 1688 (citing J.L., 529 U.S. at 271, 120 S. Ct. at
1379). Thus, the Court concluded that the tip was insufficiently reliable to justify a
stop and frisk. Id. at 398, 134 S. Ct. at 1688.
b. The tip was sufficiently reliable.
In Jackson’s case, the 911 caller was anonymous, but the 911 caller provided
three details: (1) three gunshots, (2) on Irene Lane, and (3) a newer white Suburban
“speeding away from the gunshots.” Officer Russell went to Irene Lane, found three
shell casings, and eventually encountered a white SUV that looked very similar to a
Suburban. As Officer Russell testified, “A Suburban and Yukon look very similar.”
Based on this information, an officer could reasonably conclude that the 911 caller
had correctly identified the location, the number of gunshots, and a vehicle associated
with the gunshots.
c. Officer Russell did not have to rely strictly on the tip.
In addition to the 911 call, Officer Russell had more information. Irene Lane
was a dead-end street, so through traffic would not pull onto it. The street also had
only three houses, so anyone pulling onto Irene Lane would likely have some 11
connection to one of the three houses. The neighbor who was outside told Officer
Russell that the white SUV had no connection to the corner house, so that suggested
the white SUV had a link with one of the two remaining houses, one of which had
spent shell casings in its front yard. Further, the white SUV was leaving the scene,
which might have been consistent with innocently and mistakenly pulling onto Irene
Lane but also might have communicated an attempt to avoid the police. See Illinois v.
Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (stating that nervous, evasive
behavior is a pertinent factor in determining reasonable suspicion); United States v.
Brignoni-Ponce, 422 U.S. 873, 885, 95 S. Ct. 2574, 2582 (1975) (stating that a driver’s
behavior, such as erratic driving or obvious attempts to evade officers, may be
relevant and can support a reasonable suspicion); see also Hernandez v. State, No. 13-17-
00649-CR, 2019 WL 5608239, at *6 (Tex. App.—Corpus Christi Oct. 31, 2019, no
pet.) (mem. op., not designated for publication) (same). Finally, although any number
of white SUVs might have been in that part of the city, only this one was on Irene
Lane; thus, Officer Russell’s selection was not random.
2. A traffic stop is a detention, and a detention requires reasonable
suspicion of criminal activity.
A detention, as distinguished from an arrest, 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, 22, 88 S. Ct. 1868, 1880 (1968);
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); Medellin v. State, 12
Nos. 02-10-00002-CR, 02-10-00003-CR, 2011 WL 2119668, at *3 (Tex. App.—Fort
Worth May 26, 2011, no pet.) (mem. op., not designated for publication). An officer
conducts a lawful temporary detention when he or she has reasonable suspicion to
believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex.
Crim. App. 2010); Medellin, 2011 WL 2119668, at *3.
In what is known as a Terry stop or an investigative detention, officers may stop
and briefly detain a person suspected of criminal activity on less information than is
constitutionally required for probable cause to arrest. Terry, 392 U.S. at 22, 88 S. Ct. at
1880; Medellin, 2011 WL 2119668, at *3. Investigative detentions are less intrusive
than arrests. Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011).
Traffic stops are more analogous to investigative detentions than custodial
arrests and are thus analyzed as Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439,
104 S. Ct. 3138, 3150 (1984); Medellin, 2011 WL 2119668, at *3; Martinez v. State,
236 S.W.3d 361, 369 (Tex. App.—Fort Worth 2007, pet. dism’d, untimely filed). A
traffic stop is a detention and must, therefore, be reasonable under the United States
Constitution. Young v. State, 420 S.W.3d 139, 142 (Tex. App.—Texarkana 2012, no
pet); Medellin, 2011 WL 2119668, at *3. An officer may initiate a traffic stop if the
officer has reasonable suspicion that a crime was or is about to be committed. See
Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). 13
3. A traffic stop may be otherwise justified.
With traffic stops, caselaw recognizes a hybrid justification based on consensual
encounters and investigative detentions. These detentions are not based on
reasonable suspicion that the vehicle’s occupants have been or will be involved in
criminal activity but on (1) officers’ prerogative to initiate consensual encounters and
(2) the vehicle’s occupants’ status as possible witnesses to a crime.
When an officer detains a person to determine whether the person being
detained was a witness to a crime, the detention becomes distinguishable from those
involved in a Terry stop. Gipson v. State, 268 S.W.3d 185, 188 (Tex. App.—Corpus
Christi 2008, no pet.). The distinction lies in the fact that a detention made for the
purpose of questioning a potential witness is not being made based on an officer’s
suspicion that the detainee was involved or about to be involved in criminal activity;
rather, the detention is being made for the purpose of questioning the detainee about
a third person. Id.
The law ordinarily permits police to seek the public’s voluntary cooperation
when investigating a crime. Illinois v. Lidster, 540 U.S. 419, 425, 124 S. Ct. 885, 889–90
(2004). “[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking him if he
is willing to answer some questions, [or] by putting questions to him if the person is
willing to listen . . . .” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983).14
Voluntary requests play a vital role in police investigatory work. See Lidster, 540 U.S.
at 425, 124 S. Ct. at 890.
“The importance of soliciting the public’s assistance is offset to some degree by
the need to stop a motorist to obtain that help—a need less likely present where a
pedestrian, not a motorist, is involved.” Id., 124 S. Ct. at 890. The difference is
significant because an involuntary traffic stop amounts to a “seizure” in Fourth
Amendment terms. Id. at 425–26, 124 S. Ct. at 890. In the absence of special
circumstances, the Fourth Amendment forbids stops made without individualized
suspicion. Id. at 423, 124 S. Ct. at 888–89 (citing City of Indianapolis v. Edmond, 531 U.S.
32, 41, 121 S. Ct. 447, 454 (2000)). “[The Supreme Court has] never approved [an
unparticularized-traffic-stop-]checkpoint program whose primary purpose was to
detect evidence of ordinary [or random] criminal wrongdoing. Rather, our checkpoint
cases have recognized only limited exceptions to the general rule that a seizure must
be accompanied by some measure of individualized suspicion.” Edmond, 531 U.S. at
41, 121 S. Ct. at 454.
Yet when the purpose of a detention was to request the public’s cooperation
when investigating a crime, the Supreme Court said that the difference was not
important enough to justify a rule like the one prohibiting all traffic stops absent
reasonable suspicion that the vehicle itself was involved in criminal activity. Lidster,
540 U.S. at 426, 124 S. Ct. at 890. The Court added that stopping a motorist to seek
public cooperation would likely be brief, that any accompanying delay should prove 15
no more onerous than many that typically accompany normal traffic congestion, and
that the resulting voluntary questioning of a motorist was just as likely to prove
important to the police as was the questioning of a pedestrian. Id., 124 S. Ct. at 890.
Given these considerations, the Supreme Court stated that it would seem anomalous
were the law to ordinarily allow police freely to seek the voluntary cooperation of
pedestrians but, conversely, to ordinarily forbid police to seek similar voluntary
cooperation from motorists. Id., 124 S. Ct. at 890.
Finally, the Supreme Court said that it was not concerned about an
unreasonable proliferation of police traffic stops. See id., 124 S. Ct. at 890. Rather, the
Fourth Amendment’s insistence that the stop be reasonable in context provided an
important legal limitation. See id., 124 S. Ct. at 890.
These considerations convinced the Court that a presumptive rule of
unconstitutionality did not apply to traffic stops seeking public cooperation. See id.,
124 S. Ct. at 890. On the other hand, the absence of such a prohibitory rule did not
mean that such traffic stops were automatically, or even presumptively, constitutional.
See id., 124 S. Ct. at 890. Rather, it meant that courts must judge the traffic stop’s
reasonableness (and thus its constitutionality) on the basis of the individual
circumstances. See id., 124 S. Ct. at 890. In judging reasonableness, we look to (1) the
gravity of the public concerns served by the seizure, (2) the degree to which the
seizure advances the public interest, and (3) the severity of the interference with
individual liberty. See id. at 427, 124 S. Ct. at 890; Brown v. Texas, 443 U.S. 47, 50–51, 16
99 S. Ct. 2637, 2640 (1979); Gipson, 268 S.W.3d at 188; see also State v. Woldt,
876 N.W.2d 891, 895–99 (Neb. 2016); State v. Woldt, 867 N.W.2d 637, 643–49 (Neb.
Ct. App. 2015), rev’d, 876 N.W.2d 891 (Neb. 2016).
Although Lidster involved a checkpoint stop, see 540 U.S. at 422, 124 S. Ct. at
888, the Supreme Court of Nebraska concluded that Lidster’s principles applied
beyond checkpoint cases. Woldt, 876 N.W.2d at 895–96. We have previously applied
Lidster to a checkpoint stop. See Hirmon v. State, No. 02-05-00272-CR, 2006 WL
2854306, at *3–5 (Tex. App.—Fort Worth Oct. 5, 2006, no pet.) (mem. op., not
designated for publication). And our sister court in Gibson applied Lidster in a noncheckpoint context. See 268 S.W.3d at 186–89.
4. The traffic stop was justifiable under Lidster.
a. Gravity of Public Concern
The gravity of public concern was high. Discharging a firearm in the city was
itself a Class A misdemeanor. See Tex. Penal Code Ann. § 42.12. Discharging a
firearm in a city can lead to tragedy. See, e.g., Ramirez v. State, No. 02-13-00540-CR,
2015 WL 4652771, at *1–3 (Tex. App.—Fort Worth Aug. 6, 2015, pet. ref’d) (mem.
op., not designated for publication). Someone might have been wounded or killed.
Because there was more than one gunshot, more than one person might have been
wounded or killed. Moreover, the motive behind the gunshots was still unknown, so
law enforcement could not assume that the shootings would not continue. The
gravity of public concern was great.17
b. Degree to Which Seizure Advanced Public Interest
Officer Russell had a 911 report of three gunshots and found three shell
casings at 810 Irene Lane. Because no one answered at 810 Irene Lane, the white
vehicle seen speeding away from the gunshots was the primary lead. While at the
scene, a white vehicle generally meeting the description pulled onto Irene Lane. As
mentioned before, because Irene Lane had only three houses and ended in a cul-desac, any vehicle pulling onto Irene Lane would likely have business with one of those
three houses. Because the white vehicle promptly left, Officer Russell risked losing
his best witness. Leaving the scene under these circumstances would have only
heightened law enforcement’s concerns. See Wardlow, 528 U.S. at 124, 120 S. Ct. at
676; Brignoni-Ponce, 422 U.S. at 885, 95 S. Ct. at 2582; see also Hernandez, 2019 WL
5608239, at *6. The detention greatly served the public interest.
c. Severity of Interference with Individual Liberty
If the driver of the white vehicle had no knowledge pertaining to the gunshots,
and if the driver had simply pulled onto Irene Lane by mistake, then Officer Russell
would have had no basis for detaining the driver further. The severity of the
interference with the driver’s individual liberty was minimal. Officer Russell’s traffic
stop might not have borne any fruit, but that did not mean that the detention was
unreasonable under the circumstances.
Outcome: We hold that the traffic stop was justifiable as a detention under Lidster. See
Gibson, 268 S.W.3d at 190.
Plaintiff's Experts:
Defendant's Experts:
Comments: