Adam Jason Van Cleave v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00541-CR
ADAM JASON VAN APPELLANT
CLEAVE
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellant Adam Jason Van Cleave appeals from the trial court’s order
denying his pretrial motion to suppress. We affirm.
Background Facts
On September 22, 2011, at 5:43 p.m., Officer Charles Simmons was
dispatched to the parking lot of an Office Depot warehouse. It was not a retail
1
Tex. R. App. P. 47.4.
Office Depot location. The dispatcher informed Simmons that a white male
wearing a white T-shirt and sitting in a green jeep with Michigan license plates
had been in the parking lot for over an hour and would not respond when
employees at the warehouse tried to rouse him. He was told the driver was
suspected to be either “very ill” or intoxicated. Simmons was also told that the
dispatch was based on a 911 call made by Michael Crossley. Crossley was an
employee at the warehouse.
Simmons arrived at the parking lot at 5:45 p.m. He immediately saw a
green jeep in the parking lot with the driver’s-side door open. A white male
wearing a white T-shirt sat in the driver’s seat. The driver, who was later
identified as Appellant, saw Simmons, closed the door, turned the jeep ignition
on, and put the car in reverse. Simmons concluded that Appellant was not ill but
had either been sleeping or was intoxicated. Appellant began reversing out of
the parking spot, but “it wasn’t very smooth, it was jerky.” Appellant’s poor
driving bolstered Simmons’s conclusion that the driver was possibly intoxicated
as suggested by the dispatch call.
Appellant tried to back up about ten to fifteen feet before Simmons turned
on the overhead lights on his police car to stop Appellant. Simmons then got out
of his car and began shouting at Appellant to stop. Appellant put his car into first
gear and began to drive jerkily back into the parking spot. Simmons told
Appellant to “just . . . stop, turn it off.” Appellant kept moving forward, so
2
Simmons “opened the door and then turned the vehicle off.” Prior to turning off
the car, Simmons noticed a beer can in the console and the smell of alcohol.
Appellant was indicted for driving while intoxicated with an open container
of alcohol in his immediate possession. See Tex. Penal Code Ann. § 49.04(a),
(c) (West Supp. 2012). Appellant filed a motion to suppress based on
Simmons’s lack of reasonable suspicion to detain Appellant. The trial court held
a hearing on Appellant’s motion and, after hearing Simmons’s testimony, entered
detailed findings of fact and conclusions of law and denied the motion. Appellant
then pleaded guilty without a plea-bargain agreement, and the trial court
sentenced Appellant to twenty days’ confinement and an $800 fine. Appellant
filed a notice of appeal and now argues in two issues that because the 911 caller
actually was anonymous and because there was no reasonable suspicion to
detain Appellant, the trial court erred by denying his motion to suppress.
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).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
3
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). In unlawful-detention
cases, whether the facts known to the officer at the time of the detention
constituted a reasonable suspicion is reviewed do novo. Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996).
Discussion
I. The tipster
Appellant argues in his first issue that the tipster who called 911 was
anonymous and therefore unreliable. 2 The trial court issued a conclusion of law
stating,
In this case[,] Officer Simmons had the identity of the
informant including name and phone number on the call screen in
the patrol car. The informant clearly placed himself in a position in
which he could be easily identified, located, and held accountable.
Under such facts the information provided by the known informant is
considered reliable.
The person who called 911 identified himself as Michael Crossley and
said, “[W]e’ve knocked on the car a couple of times” but Appellant “can’t even
look at the window when we’re knocking on the door.” When the dispatcher
asked for the car’s license plate, another, unidentified voice in the background
2
The State argues that Appellant did not present the specific argument he
makes on appeal to the trial court. During the hearing on Appellant’s motion to
suppress, he argued that the caller was anonymous and unreliable, which is the
gist of his argument on appeal. But even assuming that Appellant preserved his
complaint, as further explained below, we decline to hold that the caller was
anonymous and unreliable.
4
relayed the information to Crossley. The dispatcher asked for a description of
the man in the car. Crossley paused and the unidentified voice said that he was
“white” and wearing a white T-shirt. Appellant argues that because Crossley did
not know what race Appellant was or what Appellant was wearing, “it is
immediately apparent [that] his knowledge is secondhand.”
Appellant relies on Rojas v. State, 797 S.W.2d 41, 44 (Tex. Crim. App.
1990), which held that probable cause was lacking when an anonymous tipster
provided information that was “was plainly secondhand when received by the
informer” and included “no additional facts . . . which indicated any special or
personal knowledge on the part of the informer.” Rojas concerned the
possession of contraband and held “when an anonymous tip is relied upon to
furnish probable cause, the informer must assert personal knowledge or there
must be additional facts showing reason to believe that the contraband sought
will probably be where the information indicates it will be.” Id.
Appellant also cites Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim.
App. 2011), cert. denied, 132 S. Ct. 150 (2011), and attempts to distinguish it
from the present facts. In Derichsweiler, the tipsters “identified themselves to the
911 dispatcher and remained answerable for their report after the fact. That
report was based upon their own first-hand perceptions, many of which they
continuously and contemporaneously narrated to the police via the 911
dispatcher.” Id. at 915. The court of criminal appeals stated that in that case
5
there was “no issue . . . with respect to the reliability of the information supplied
by the citizen-informants.” Id.
From the recording of the 911 call, 3 it is clear that Office Depot warehouse
employees collectively witnessed Appellant in his car and decided to call the
police. When the dispatcher asked what race Appellant was, the unidentified
voice responded “white” without Crossley having to relay the question to him,
indicating that the unidentified voice could hear the dispatcher. We therefore
consider the caller and the unidentified voice together as the tipsters in this case.
See Gansky v. State, 180 S.W.3d 240, 247 (Tex. App.—Fort Worth 2005, pet.
ref’d) (holding that when officer received numerous anonymous tips, “both the
quantity of callers and their contemporaneous sightings increased the reliability
and accuracy,” especially when at least one tipster “made him[self] identifiable”).
Crossley identified himself by name and stated, “I work at Office Depot
here.” He provided his phone number as well as that of a co-worker, thereby
putting himself in a position to be held accountable. See Pipkin v. State, 114
S.W.3d 649, 655 (Tex. App.—Fort Worth 2003, no pet.) (noting that a caller can
prove his reliability by putting himself in a position to be held accountable).
Crossley also provided detailed description of Appellant’s behavior and where he
could be found. See id. The relayed information was not “secondhand” in the
same sense as in Rojas, when it was unclear when the caller had received the
3
This court requested the 911 call recording from the trial court and
listened to it in its entirety.
6
information or from whom. See 797 S.W.2d at 44. In this case, the unidentified
voice provided firsthand information to the dispatcher. And unlike in Rojas,
Crossley stated that he and others were personally involved in knocking on the
car door and observing Appellant. See Pipkin, 114 S.W.3d at 655. As in
Derichsweiler, the tipsters provided their first-hand account to the dispatcher.
See 348 S.W.3d at 915. The trial court did not err by considering Crossley and
the other, unknown voice as a “known informant” and by considering the
information they provided reliable. We overrule Appellant’s first issue.
II. Reasonable suspicion
In his second issue, Appellant argues that the police officer did not have
reasonable suspicion to detain him. Under the Fourth Amendment, a warrantless
detention of the person that amounts to less than a full-blown custodial arrest
must be justified by a reasonable suspicion. See Derichsweiler, 348 S.W.3d at
914. A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those facts, would
lead him reasonably to conclude that the person detained is, has been, or soon
will be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 21–22, 88
S. Ct. 1868, 1880 (1968). This standard looks to the totality of the
circumstances; if the circumstances combine to reasonably suggest the
imminence of criminal conduct, an investigative detention is justified.
Derichsweiler, 348 S.W.3d at 914. We consider the cumulative information
known to the cooperating officers, including a 911 dispatcher. Id. at 914–15.
7
When a known citizen-informant provides information, the only question is
whether that information, viewed through the prism of the detaining officer’s
particular level of knowledge and experience, objectively supports a reasonable
suspicion to believe that criminal activity is afoot. Id. at 915.
Based on the information provided by the tipsters, the dispatching officer
gave the arresting officer the color, model, license plates, and location of the car
where Appellant was found. The dispatching officer also described Appellant as
a “white male.” The arresting officer corroborated all the information provided by
the employees, including the license plate of the car and the description of
Appellant. See State v. Stolte, 991 S.W.2d 336, 343 (Tex. App.—Fort Worth
1999, no pet.) (holding that officer was justified in initiating an investigatory stop
when he confirmed that a pickup matching the description and license plate given
was located where the informant indicated).
The arresting officer then personally witnessed Appellant see him and try
to leave the parking lot. 4 The officer noted that Appellant was having difficulty
backing the car out of the parking spot, which indicated to him that Appellant was
likely impaired. See Arizpe v. State, 308 S.W.3d 89, 94 (Tex. App.—San Antonio
2010, no pet.) (stating that anonymous tip that appellant was driving drunk was
sufficiently corroborated to support officer’s reasonable suspicion when the
4
The officer parked his patrol car “probably 15, 20 feet” from Appellant’s
car with his overhead lights off. Contrary to statements in Appellant’s brief, the
officer did not testify that Appellant’s car was blocked.
8
officer witnessed the identified vehicle “positioned in between two lanes at a
traffic light”). Simmons testified that it was “not normal” for a person to be
sleeping in a car in a warehouse parking lot during the day and that “most
people, if they’re ill, wouldn’t be leaving the scene if an officer or medical
personnel would show up on the scene. So, I mean, to me it would either be one
of two things: He was either there sleeping because he was tired, or two, was
intoxicated.”
The police officer pointed to specific and articulable facts (that the
warehouse employees had difficulty rousing Appellant, that Appellant had
difficulty driving the car, and that he attempted to leave once he saw the officer)
and rational inferences from those facts (that Appellant was likely intoxicated and
not sleepy or ill) that led him to reasonably conclude that Appellant was, had
been, or soon would be engaged in criminal activity, namely, driving while
intoxicated. In light of the totality of the circumstances, the information from the
caller in conjunction with the police officer’s corroboration was sufficient to
support an investigative detention based on reasonable suspicion. The trial court
did not err by denying Appellant’s motion to suppress, and we overrule his
second issue.
9
Conclusion
Having overruled Appellant’s issues on appeal, we affirm the trial court’s
order.
LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 24, 2013
10