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Date: 02-23-2021

Case Style:

The State of Texas v. Tracy Todd Adrian

Case Number: 09-20-00041-CR


Court: Court of Appeals Ninth District of Texas at Beaumont

Plaintiff's Attorney: William Lee Hon
Tommy L. Coleman

Defendant's Attorney:

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Beaumont, Texas - Criminal defense attorney represented Tracy Todd Adrian with an Appeal From a Pretrial Order.

Because the State stipulated that this was a warrantless stop and detention, the
State had the burden of proof at the hearing on the motion to suppress.1 Officer Tito
Reyes was the sole testifying witness. Reyes testified that he was employed with the
Livingston Police Department and on patrol in the early morning hours of April 7,
2019.2Reyes received a dispatch that “we had an attempt to locate for a black Ford
F-150.” The dispatcher advised that the truck was traveling eastbound around the
1700 block of West Church Street in Livingston, Texas. Reyes stated that he was
told the driver was “possibly intoxicated[]” and that the black Ford F-150 also almost
hit a guardrail. According to Reyes, the 911 caller actually called to report the black
Ford F-150 two separate times. Reyes did not state whether the caller identified him
1 To suppress evidence because of an alleged Fourth Amendment violation,
the defendant bears the initial burden of producing some evidence that rebuts the
presumption of proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex.
Crim. App. 2009) (citing Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986)).
“A defendant satisfies this burden by establishing that a search or seizure occurred
without a warrant.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Once the defendant has made this showing, the burden then shifts to the State to
prove that the search or seizure was conducted pursuant to a warrant or was
reasonable. Id. The State stipulated this case involved a warrantless stop and arrest.
Therefore, the State had the burden to establish the reasonableness of the stop. See
2 Reyes testified that his dash camera was not working that night and there is
no video of the events prior to the arrest.
or herself to the 911 dispatcher before he stopped the F-150 pickup truck. No
recording of the 911 call was admitted into evidence at the hearing.
Reyes testified that shortly after receiving the dispatch, he was traveling
westbound in the 1600 block of West Church Street and observed a black Ford F150 traveling eastbound. Reyes observed that “[i]nstead of driving to the median and
making a safe turn from the median, it drove against traffic, as it – it miscalculated
the turn.”He explained thatAdrian’s maneuver was “unsafe because he’s driving on
the opposite side of the roadway.” Reyes stated that there were no other vehicles on
the roadway when Adrian made his turn. Reyes then initiated a traffic stop “[a]s soon
as [the vehicle] turned into the Murphy parking lot.” He estimated that he made the
traffic stop about two minutes after he received the dispatch regarding the Ford F150 pickup truck. The 911 caller also stopped at the location of the traffic stop and
spoke with Officer Reyes. During the conversation, the caller confirmed that Reyes
had indeed stopped the pickup truck the caller observed driving erratically and which
they had been following.
After taking the case under advisement, on January 31, 2020, the trial court
granted Adrian’s motion to suppress. After the State filed its Request for Findings
of Facts and Conclusions of Law, the trial court made the following Findings of Fact
and Conclusions of Law:
Findings of Fact
1. After midnight on April 7, 2019, Officer Tito Reyes of the Livingston
Police Department, received a radio communication to be on the
lookout for a black F150 that was heading eastbound on US 190 at
about Walmart.
2. While traveling west bound to the described location, Officer Reyes
received another communication that the vehicle almost hit a guardrail.
3. The dispatch was based on an anonymous 911 call that described the
vehicle only as a black Ford 150. No other identification of the vehicle,
such as the license number, model year or number of people in the
vehicle was given.
4. One to two minutes after receiving the first dispatch, Officer Reyes
observed a black Ford 150, which was being operated by Tracy Todd
Adrian, the Defendant herein, making a sweeping left hand turn from
eastbound in the paved median of US 190 into the Walmart driveway.
5. No other vehicles were between Officer Reyes and Defendant who
were about a block apart at the beginning of the turn.
6. Under the circumstances existing at the time, Defendant’s left hand
turn was not unsafe.
7. Officer initiated the stop and detention of the Defendant's vehicle
based solely on the report over the radio and his determination that the
left hand turn by the Defendant was unsafe.
8. All evidence discovered in this cause directly resulted from Officer
Reyes’ stop of theDefendant’s vehicle.
9. No warrant of any kind existed at any point relevant herein.
Conclusions of Law
1. The stop of Defendant’s vehicle was not justified as an exception to
the requirement [of] a warrant because of Officer Reyes’ lack of
probable cause to believe that a traffic violation had occurred.
2. All evidence resulting from the stop of the Defendant’s vehicle and
his subsequent detention is excluded in this cause by Article 38.23,
Code of Criminal Procedure.
The State timely appealed.
Standard of Review
We use a bifurcated standard when reviewing a trial court’s ruling on a motion
to suppress. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing
Ford, 158 S.W.3d at 493). Under that standard, we give the trial court’s findings of
historical fact almost total deference if the trial court’s express and implied findings
are supported by the evidence. Id. Likewise, if the trial court resolves a motion to
suppress based on a resolution of mixed question of law and fact, its evaluation of
the credibility and demeanor of the witnesses is given almost total deference. Id. In
contrast, if the trial court’s findings do not depend on the trial court’s evaluations of
the credibility and demeanor of the witnesses or turned on resolving a pure question
of law, we review its ruling using a de novo standard. Id. (citing Montanez v. State,
195 S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). “Moreover, ‘we review de novo whether the totality of
circumstances is sufficient to support an officer’s reasonable suspicion of criminal
activity.’” State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018) (quoting
Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial court’s
ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006). 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. See 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).
A warrantless detention of a person must be justified by reasonable suspicion.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011), cert. denied,
565 U.S. 840 (2011). “As a general matter, the Supreme Court has recognized that
the decision to stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.” Walter v. State, 28 S.W.3d
538, 542 (Tex. Crim. App. 2000).
However, a police officer may also lawfully stop a motorist when,
based on the totality of the circumstances, he has reasonable suspicion
for a temporary investigation on less than probable cause if the officer
has specific articulable facts that, combined with rational inferences
from those facts, would lead him reasonably to conclude that the person
is, has been, or soon may be engaged in criminal activity.
State v. Houghton, 384 S.W.3d 441, 446–47 (Tex. App.—Fort Worth 2012, no pet.)
(citing Derichsweiler, 348 S.W.3d at 914). “These articulable facts must amount to
more than a mere hunch or suspicion.” Abney v. State, 394 S.W.3d 542, 548 (Tex.
Crim. App. 2013). The State does not have to establish with absolute certainty that
a crime occurred; the State’s burden is proving that, under the totality of the
circumstances, the stop was reasonable. Id.
In a reasonable suspicion inquiry, a reviewing court may look at the “officer’s
ability to ‘draw on [his] own experience and specialized training to make inferences
from and deductions about the cumulative information available to [him] that “might
well elude an untrained person.’” Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex.
Crim. App. 2017) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “A
911 police dispatcher is ordinarily regarded as a ‘cooperating officer’ for purposes
of making this determination.” Derichsweiler, 348 S.W.3d at 914 (citations omitted).
In assessing reasonable suspicion, the reviewing court looks at the total of all
objective information collectively available to the officers, including the 911
operator. See id. at 915.
The U.S. Supreme Court addressed the issue of reasonable suspicion based on
information provided by a 911 caller in Navarette v. California and noted it “firmly
rejected the argument ‘that reasonable cause for a[n investigative stop] can only be
based on the officer’s personal observation, rather than on information supplied by
another person.’” 572 U.S. 393, 397 (2014) (quoting Adams v. Williams, 407 U.S.
143, 147 (1972)). Further, the Court explained that even if the 911 caller is
anonymous, there was an adequate “indicia of reliability” for the officer to believe
the caller’s report. Id at 398. Specifically, the Supreme Court found the information
reliable because, the call was contemporaneous, the caller identified the vehicle, and
the caller used the 911 emergency system to report the accident. Id. at 399–400. The
Supreme Court cautioned that even a reliable tip can only “justify an investigative
stop…if it creates reasonable suspicion that ‘criminal activity may be afoot.’” Id. at
401 (citations omitted). That means that the officer must have reasonable suspicion
of an ongoing crime and not an isolated event of reckless driving. Id.
Reasonable suspicion depends on the factual and practical
considerations of everyday life on which reasonable and prudent men,
not legal technicians, act. Under that commonsense approach, we can
appropriately recognize certain driving behaviors as sound indicia of
drunk driving. Indeed, the accumulated experience of thousands of
officers suggests that these sorts of erratic behaviors are strongly
correlated with drunk driving. Of course, not all traffic infractions
imply intoxication. Unconfirmed reports of driving without a seatbelt
or slightly over the speed limit, for example, are so tenuously connected
to drunk driving that a stop on those grounds alone would be
constitutionally suspect. But a reliable tip alleging the dangerous
behaviors discussed above generally would justify a traffic stop on
suspicion of drunk driving.
Id. at 402 (internal citations and quotations omitted).
The Texas Court of Criminal Appeals explained in Derichsweiler that
[a] brief investigative detention constitutes a significantly lesser
intrusion upon the privacy and integrity of the person than a full-blown
custodial arrest[,] [and] [f]or this reason, a warrantless investigative
detention may be deemed ‘reasonable’ for Fourth Amendment purposes
on the basis of a lesser quantum or quality of information—reasonable
suspicion rather than probable cause.
348 S.W.3d at 916 (citing Alabama v. White, 496 U.S. 325, 330 (1990)). In
Derichsweiler, the police were notified by a 911 caller of a person acting bizarrely
though not overtly criminal. See id. at 917. The appellant was repeating this bizarre
behavior and directing that behavior towards particular individuals, and although the
police did not view the behavior, for a reasonable suspicion analysis it was enough
“that the totality of the circumstances, viewed objectively and in the aggregate,
suggests the realistic possibility of a criminal motive[.]” Id. In a reasonable suspicion
analysis, the Court explained that the crux of the issue is whether the totality of
reliable information “provided specific, articulable facts that, combined with
reasonable inferences to be derived from those facts, would lead to the reasonable
conclusion that the appellant was committing, or soon would be engaged in, some
type of criminal activity.” Id. at 915-16.
The Texas Court of Criminal Appeals and our sister Courts of Appeals have
repeatedly determined that a detailed, contemporaneous, first person report by a 911
caller coupled with the officer’s own observations corroborating the reliability of the
concerned citizen’s tip is enough to justify reasonable suspicion to stop and
investigate a driver for suspected DWI. See Leming v. State, 493 S.W.3d 552, 564-
65 (Tex. Crim. App. 2016); see also Oringderff v. State, 528 S.W.3d 582, 588–89
(Tex. App.—Texarkana 2017, no pet.); Pate v. State, 518 S.W.3d 911, 915–16 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d); LeCourias v. State, 341 S.W.3d 483,
488 (Tex. App.—Houston [14th Dist.] 2011, no pet.).3
Based on an objective view of the totality of circumstances known to the
arresting officer at the time of the stop, officer Reyes had reasonable suspicion to
stop Adrian and investigate Adrian for suspected DWI.4 Amador v. State, 275
S.W.3d 872, 878 (Tex. Crim. App. 2009); see also Cortez, 543 S.W.3d at 204.
Similar to the circumstances in Navarette, Reyes relied on the contemporaneous
anonymous caller’s description of a vehicle driving erratically made to a 911
emergency system, and, in that case, the Supreme Court stated that although the
officer did not view any “additional suspicious conduct” when he observed the
alleged intoxicated driver, “an officer who already has such a reasonable suspicion
3 In each of these cases, the court determined that an officer had reasonable
suspicion to investigate a suspected intoxicated driver because the 911 caller
provided a detailed, reliable report of the alleged intoxicated behavior of the driver
including license plate numbers, identifying descriptions of the driver, accounts of
erratic driving, or other behavior that indicated intoxicated driving, which
information was then objectively verified by the officer when observing the
allegedly intoxicated driver. In contrast, in State v. Jennings, the court concluded the
arresting officer did not have reasonable suspicion when he relied on a “subjective
opinion” absent any context that a person was intoxicated without additional
“specific, articulable facts”. The officer testified that he did not observe the
defendant violate any traffic laws or appear to be intoxicated after she left the nursing
home. The Court held that the State failed to demonstrate the “specific, articulable
facts” that would justify reasonable suspicions of drunk driving. 511 S.W.3d 306,
311–12 (Tex. App.—San Antonio 2016, no pet.).
4 The record does not demonstrate that the caller identified himself to the 911
dispatcher or the officer at the scene of the traffic stop.
need not surveil a vehicle at length in order to personally observe suspicious
driving.” Navarette, 572 U.S. at 404. Reyes had reliable information from the 911
caller who called twice, identified the vehicle, described the driver’s erratic
behavior, i.e., that he almost hit a guardrail, gave a location where the caller observed
the alleged impaired driver operating his vehicle, and the caller stated they believed
the driver was intoxicated. See Brother v. State, 166 S.W.3d 255, 259 (Tex. Crim.
App. 2005) (citations omitted) (“To require officers who are apprised of detailed
facts 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.”); see also Navarette, 572 U.S. at 404.
Reyes testified that he had been a patrol officer for seven years and that, in his
experience, the time of night Adrian was reported is typically prime time for drunk
driving to occur as bars close at two o’clock and people generally leave bars between
one and two o’clock in the morning. See Foster v. State, 326 S.W.3d 609, 613 (Tex.
Crim. App. 2010) (noting “time of day is a relevant factor in determining reasonable
suspicion”). The information provided by the caller from two calls to the 911
operator, coupled with Reyes’s experience, when viewed objectively from the
totality of the circumstances, demonstrate an “indicia of reliability” sufficient to
provide Reyes with reasonable suspicion that Adrian was possibly impaired.
5 See
Navarette, 572 U.S. at 404;see also Pate, 518 S.W.3d at 915–16 (holding under the
totality of the circumstances officer had reasonable suspicion for stop although the
officer did not observe any criminal behavior or traffic violations where caller
identified the car, made contemporaneousreport of erratic driving, and the officer
located the vehicle at the location the caller provided)

Outcome: As such, the trial court erred when it granted Adrian’s motion to suppress. We reverse the trial court’s order of January 31, 2020 and remand the case to the trial court.

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