Opinion
No. 06-05-00010-CR
Submitted: July 29, 2005.
Decided: September 2, 2005. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 4, Montgomery County, Texas, Trial Court No. 04-192928.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
As the apparently intoxicated John A. Hoffman stumbled to, entered, and started his car in a public parking lot, a concerned citizen, Charles Venema, approached nearby police officer Angela Fountain, reported Hoffman's actions, and pointed out Hoffman to the officer. Fountain, on foot, tried to flag down Hoffman before he drove away, but, after looking at Fountain for a few moments, Hoffman drove off without comment. Fountain entered her patrol car, and followed and stopped Hoffman's vehicle without seeing any errant driving by him. Fountain found Hoffman apparently intoxicated. Hoffman filed a motion to suppress evidence obtained due to the stop, based on his contention there was no probable cause for the stop. The trial court denied his motion. Under a plea agreement, Hoffman pled guilty to a misdemeanor charge of driving while intoxicated, was sentenced to 180 days' confinement, which was suspended for eighteen months, and was assessed a $1,000.00 fine. He appeals the denial of his motion to suppress the evidence. We review a trial court's ruling on a motion to suppress evidence under what may be described as a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); 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). At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Id. Further, the concept of "reasonable suspicion" is one that is objective, and disregards the subjective intent of the officer making the stop. It relies solely on whether an objective basis for the stop exists. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). Further, we must uphold a trial court's ruling on a motion to suppress if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002); Matthews v. State, 165 S.W.3d 104 (Tex.App.-Fort Worth 2005, no pet.). Hoffman contends the trial court erred by denying his motion to suppress because there was no reasonable suspicion to justify the stop that ultimately resulted in his arrest. He argues that the officer had no authority to pull him over based solely on a report by a citizen and that, because the officer did not observe him violating any traffic laws, the stop was unlawful. The foundational question of this case is just how much a police officer may rely on a report by a concerned citizen and what action the officer can take based on that report. Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968); Pipkin v. State, 114 S.W.3d 649, 653 (Tex.App.-Fort Worth 2003, no pet.). To initiate an investigative stop, the officer must possess a reasonable suspicion based on specific articulable facts that, in light of the officer's experience and general knowledge, would lead the officer to the reasonable conclusion that criminal activity is underway and the detained person is connected to the activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). These facts must amount to more than a mere hunch or suspicion. Pipkin, 114 S.W.3d at 654. The cases hold that the information provoking the officer's suspicions need not be based on personal observation, but may be based on an informant's tip that bears sufficient "indicia of reliability" to justify a stop. See Adams v. Williams, 407 U.S. 143, 146-47 (1972). Unsolicited information concerning a crime in progress provided to police in a face-to-face encounter by a concerned citizen who is not connected with police and is not a paid informant is inherently reliable. United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978); Harrison v. State, 144 S.W.3d 82, 86 (Tex.App.-Fort Worth 2004, pet. granted); State v. Fudge, 42 S.W.3d 226, 232 (Tex.App.-Austin 2001, no pet.); State v. Sailo, 910 S.W.2d 184, 189 (Tex.App.-Fort Worth 1995, pet. ref'd). This is because, in such situations, the citizen puts himself or herself in a position of being identified and being held accountable. Sierra-Hernandez, 581 F.2d at 763; Bilyeu v. State, 136 S.W.3d 691, 695 (Tex.App.-Texarkana 2004, no pet.); Fudge, 42 S.W.3d at 232; Sailo, 910 S.W.2d at 188. In this case, Venema approached Fountain in the parking lot. He pointed out Hoffman to her, said Hoffman had been having great difficulty walking to his car, and expressed the opinion that Hoffman was in no condition to drive. Further, Fountain testified that, when she ran to Hoffman's car and attempted to flag him down before he left the parking lot, Hoffman merely looked at her for a few seconds and then drove out onto the street. Fountain got into her patrol car, followed Hoffman, and stopped him. The present facts — personal contact by a concerned, identified citizen reporting Hoffman's erratic walking and his apparent unwillingness to stop when flagged down by an officer — cause this case to fall squarely within the line of cases discussed above. Venema, not connected with police, provided an unsolicited, face-to-face report concerning a possible crime in progress or about to occur, while he was personally observing the event. The information provided by Venema was sufficiently reliable to provide police with reasonable articulable suspicion to initiate an investigative stop of Hoffman. See, e.g., Harrison, 144 S.W.3d at 86; Pipkin, 114 S.W.3d at 653-54; Fudge, 42 S.W.3d at 232; Garcia v. State, 25 S.W.3d 908, 911 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Sailo, 910 S.W.2d at 189. The contention of error is overruled. We affirm the judgment.