Jackson, Jarquis D.

PD-00208-CR, PD-00209-CR COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/23/2015 2:37:31 PM Accepted 3/25/2015 1:45:42 PM ABEL ACOSTA NOS. PD-00208-15 & PD-00209-15 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN _________________________

JARQUIS D. JACKSON, Petitioner/Appellee

March 25, 2015 v.

THE STATE OF TEXAS, Respondent/Appellant _________________________

On Appeal in Cause Nos. MB13-62072 & MB13-62071 from the County Criminal Court No. 3 Of Dallas County, Texas And on Petition for Discretionary Review from the Fifth District of Texas at Dallas In Cause Nos. 05-14-00278-CR & 05-14-00279-CR _________________________

APPELLEE’S PETITION FOR DISCRETIONARY REVIEW _________________________

Counsel of Record:

Lynn Richardson Kathleen A. Walsh Chief Public Defender Assistant Public Defender State Bar Number: 20802200 Katherine A. Drew 133 N. Riverfront Blvd., LB 2 Chief, Appellate Division Dallas, Texas 75207-399 (214) 653-3550 (telephone) Loren M. Collins (214) 653-3539 (fax) Assistant Public Defender kwalsh@dallascounty.org

LIST OF PARTIES

TRIAL COURT JUDGE Doug Kemp, Presiding Judge

APPELLEE Jarquis D. Jackson

APPELLEE’S ATTORNEYS AT TRIAL Loren M. Collins, State Bar No. 24077823 Assistant Public Defender

ON APPEAL Kathleen A. Walsh, State Bar No. 20802200 Loren M. Collins, State Bar No. 24077823

Assistant Public Defenders Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399

STATE’S ATTORNEYS AT TRIAL Annish Ashley, State Bar No. 24087120 Chris Johnson, State Bar No. 24063939

ON APPEAL Brian P. Higginbotham, State Bar No. 24078665

Assistant District Attorneys Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399

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TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv STATEMENT REGARDING ORAL ARGUMENT ............................................... 1 STATEMENT OF THE CASE .................................................................................. 1 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1 GROUNDS FOR REVIEW ...................................................................................... 2

GROUND FOR REVIEW NO. 1

The Court of Appeals’ decision reversing the trial court’s order granting Petitioner’s motion to suppress evidence conflicts with the decisions of the U.S. Supreme Court because the decision permits an investigative detention based on an anonymous tip where the tipster did not claim personal knowledge of the alleged illegality and provided no predictive information.

GROUND FOR REVIEW NO. 2

The Court of Appeals’ decision reversing the trial court’s order granting Petitioner’s motion to suppress evidence conflicts with the decisions of this Court because the decision permits an investigative detention based on an anonymous tip where the tipster did not claim personal knowledge of the alleged illegality and provided no predictive information.

GROUND FOR REVIEW NO. 3

The Court of Appeals’ decision reversing the trial court’s order granting Petitioner’s motion to suppress evidence conflicts with the decisions of other Texas courts of appeals because the decision permits an investigative detention based on an anonymous tip where the tipster did not claim personal knowledge of the alleged illegality and provided no predictive information.

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ARGUMENT ............................................................................................................. 3 Pertinent Facts .................................................................................................3 Anonymous tips and reasonable suspicion ......................................................4 The Dallas Court's determination that the anonymous tip in this case contained the same indicia of reliability to provide officers with reasonable suspicion to believe criminal activity was afoot is in conflict with the decision in Navarette; the anonymous tip, and information known to the officers at the time of the investigative detention, is nearly identical to the tip and circumstances found to be insufficient by the Supreme Court in J.L, and its progeny.. .....................................................................................................9 Other federal and state courts interpreting the holding in Navarette also demonstrate the conflict between the Dallas Court's opinion and the Supreme Court's opinion ...............................................................................11 Conclusion .....................................................................................................13 PRAYER FOR RELIEF .......................................................................................... 15 CERTIFICATE OF SERVICE ................................................................................ 16 CERTIFICATE OF COMPLIANCE ....................................................................... 16 APPENDIX

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INDEX OF AUTHORITIES

Cases Alabama v. White, 496 U.S. 326 (1990) ............................................................................... 4, 5, 13 Davis v. State, 144 S.W.3d 192 (Tex. App.—Fort Worth 2004, pet. ref'd.) ............................ 6 Davis v. State, 989 S.W.2d 859 (Tex. App.—Austin 1999, pet. ref'd.) ................................... 6 Florida v. J.L., 529 U.S. 266 (2000) ......................................................................... 6, 7, 10, 13 Jackson v. State, Nos. 05-14-00278-CR, 05-14-00279-CR, 2015 Tex. App. LEXIS 507 (Tex. App.—Dallas January 21, 2015) (not designated for publication) .... 1, 9 Johnson v. State, 146 S.W.3d 719 (Tex. App.—Texarkana 2004, no pet.) ................................. 8 Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011) ........................................................ 8 Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014) ........................................................ 1 Navarette v. California, 134 S.Ct. 1683 (2014) ............................................................................. passim State v. Braziel, No. A13-1183, 2014 Min.. App. Unpub. LEXIS 576 (Minn. Ct. App. June 9, 2014, review denied) (not designated for publication) ...................... 13 State v. Gates, 145 So.3d 288 (La. 2014) ............................................................................... 12 State v. McPeak, No. 40892, 2014 Ida. App. Unpub. LEXIS 264 (Idaho Ct. App. June 11, 2014, no pet. h.) (not designated for publication) .......................................... 12 Stewart v. State, 22 S.W.3d 646 (Tex. App.—Austin 2000, pet. ref’d.) .................................... 6

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United States v. Robinson, No. 3:14-CR-28, 2014 U.S. Dist. LEXIS 112383 (N.D. W.Va. August 14, 2014, no pet. h.) (not designated for publication) .......................................... 12 Statutes TEX. CODE CRIM. PROC. art. 44.01 (a) (5) ............................................................ 1 TEX. PENAL CODE § 46.02 .................................................................................. 11 TEX. PENAL CODE § 46.15(b)(2) ........................................................................ 11 Rules TEX. R. APP. P. 66.3(b) ....................................................................................... 13

vi TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW Jarquis D. Jackson, Petitioner herein and Appellee before the Court of Appeals, and respectfully submits this Petition for Discretionary Review.

STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument because this case presents a question of law on an issue having statewide impact and possible reoccurrence. Oral argument may be helpful to the members of this Court in the resolution of the issue presented.

STATEMENT OF THE CASE

Appellee was charged by affidavit and information with the offenses of unlawfully carrying of a weapon and possession of marijuana in an amount of two ounces or less. (CR: 9, 10; CR1: 8, 9).1 The trial court granted Appellee’s motion to suppress. (CR: 15; CR1: 39; RR: 55-57. 62-63). The State appealed pursuant to TEX. CODE CRIM. PROC. art. 44.01 (a) (5). (CR: 6-7; CR1: 6-7).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

On January 21, 2015, in an unpublished opinion, the Court of Appeals for the Fifth District of Texas reversed the trial court’s order granting the motion to suppress. Jackson v. State, Nos. 05-14-00278-CR, 05-14-00279-CR, 2015 Tex.

1 For purposes of this brief, the Clerk’s Record in Cause No. MA13-62072 shall be designated as “CR;” the Clerk’s Record in Cause No. MA13-62071 shall be designated as “CR1.”

App. LEXIS 507 (Tex. App.—Dallas January 21, 2015) (not designated for publication). (See Appendix). No motion for rehearing was filed. This Petition is timely if filed on or before March 23, 2015.2

GROUND FOR REVIEW NO. 1

The Court of Appeals’ decision reversing the trial court’s order granting Petitioner’s motion to suppress evidence conflicts with the decisions of the U.S. Supreme Court because the decision permits an investigative detention based on an anonymous tip where the tipster did not claim personal knowledge of the alleged illegality and provided no predictive information.

GROUND FOR REVIEW NO. 2

The Court of Appeals’ decision reversing the trial court’s order granting Petitioner’s motion to suppress evidence conflicts with the decisions of this Court because the decision permits an investigative detention based on an anonymous tip where the tipster did not claim personal knowledge of the alleged illegality and provided no predictive information.

GROUND FOR REVIEW NO. 3

The Court of Appeals’ decision reversing the trial court’s order granting Petitioner’s motion to suppress evidence conflicts with the decisions of other Texas courts of appeals because the decision permits an investigative detention based on an anonymous tip where the tipster did not claim personal knowledge of the alleged illegality and provided no predictive information.

2 On February 26, 2015, this Court granted the Appellant’s motion for an extension of time.

ARGUMENT

Pertinent Facts.

On September 2, 2013, Dallas police officers were dispatched to the parking lot of a gas station in Dallas. (RR: 7, 9, 17, 21-22, 24, 30, 37-38). Three officers responded to the call. (RR: 7, 22, 37-38). The call notes from dispatch were based on a 911 call from an anonymous tipster; the officers did not know any information about the caller other than a cell phone number. (RR: 20-21, 43, 57).

As they made their way to the scene, the officer’s call sheet indicated that the tipster had alleged that a black male wearing a white t-shirt had a gun. (RR: 7, 9, 14, 32, 38). Officer Thomas testified that the officers’ “collective understanding” was that there was “a man with a gun” at the gas station. (RR: 31-32). Both Officers Thomas and Crawford stated that the call notes indicated that the suspect had not pointed the gun or waved the gun at anyone. (RR: 32, 50). The notes additionally stated that the man with the gun had gotten into a black Honda with no front license plate, and that two other black males wearing white t-shirts were also present in or around the vehicle. (RR: 16). The call notes also stated that the vehicle had blue headlights and the lights were flashing. (RR: 7-8, 38-39). The notes did not provide any information as to which black male wearing a white t-shirt had a gun. (RR: 16). The three officers testified that the area of town is in a *4 high crime area, but also that the gas station was open and is frequented by many patrons during late night hours. (RR: 9, 30, 40).

Upon arriving at the gas station, the officers saw a black Honda backed into a parking spot in front of the gas station and it was flashing its lights. (RR: 8, 22, 38, 40). Additionally, the officers saw that the Honda had blue headlights and no front license plate, just as the call notes had alleged. (RR: 18). The officers exited their vehicles and approached the black Honda. (RR: 17). The vehicle started moving and the officers used hand gestures and “yelled stop”. (RR: 17, 39). In response to the officers’ show of authority, the vehicle stopped. (RR: 18, 23-24, 39, 48). During the investigative detention, the police found a handgun underneath the passenger seat of the vehicle and some marijuana on Appellee’s person. (RR: 12, 26-27, 41-42). Anonymous tips and reasonable suspicion.

Under the Fourth Amendment, an investigatory detention must be justified by reasonable suspicion. Matthews v. State, 431 S.W.3d 596, 603-04 (Tex. Crim. App. 2014). Whether reasonable suspicion exists, “…depends upon both the content of information possessed by police and its degree of reliability.” Navarette v. California, 134 S. Ct. 1683, 1687 (2014)(citing Alabama v. White, 496 U.S. 325, 330 (1990).

An anonymous tipster’s information may form part of the basis of an investigative detention. However, by definition, an anonymous tipster’s reliability is “largely unknown, and unknowable.” Id. (quoting White, 496 U.S. at 329). Therefore, “an anonymous tip seldom demonstrates the informant’s basis of knowledge or veracity” standing alone. White, 496 U.S. at 329.

Because an anonymous tipster’s reliability is unknown, the Supreme Court has discussed two main ways in which an anonymous tip may be proved reliable, and thus justify an investigative detention. In Alabama v. White, an anonymous tip provided information about a specific person driving a specific vehicle who was alleged to be transporting illegal drugs. Additionally, the tip provided information that predicted the suspects future movements. Once that predictive information was corroborated by the officer’s surveillance of the suspect, “the tipster demonstrated a special familiarity with [the suspect’s] affairs, which in turn implied that the tipster had access to reliable information about that individual’s illegal activities.” Navarette, 134 S. Ct. at 1687 (citing White, 496 U.S. at 332). Thus, the specific details contained in the tip, plus the corroboration of the predictive behavior contained within the tip, supplied the reliability needed to find that reasonable suspicion existed.

Alternatively, an anonymous tip may be proved reliable when the tipster provides information that necessarily implies that the tipster has personal *6 knowledge of the alleged illegal conduct, and makes a “contemporaneous report” to police of the alleged illegal conduct. Navarette, 134 S. Ct. at 1689. In Navarette, the tipster alleged “she had been run off the road by a specific vehicle”, and she made that report immediately after it happened. Id. Thus, the combination of personal knowledge of the illegality, together with the contemporaneous report, supplied the reliability needed to show that reasonable suspicion existed.

In contrast, an anonymous tip that does not indicate that it was based on personal knowledge, is not made contemporaneously with the alleged illegal activity, and provides no predictive information, will not be deemed sufficient to prove reliable to establish reasonable suspicion absent corroboration of criminal activity by the investigating officers. Corroboration of mere innocent details is insufficient to corroborate an anonymous tip. Davis v. State, 144 S.W.3d 192, 199-200 (Tex. App.—Fort Worth 2004, pet. ref’d.). The independent corroboration by the investigating officers must establish that the tip is ‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Florida v. J.L., 529 U.S. 266, 271-272 (2000). “[T]he corroboration of details that are easily obtainable at the time the information is provided, and which do not indicate criminal activity, will not lend support to the tip.” Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.—Austin 2000, pet. ref’d.); Davis, 989 S.W.2d 859, 863 (Tex. App.—Austin 1999, pet. ref’d.); see also J.L., 529 U.S. at 272.

In J.L., an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The police arrived at the bus stop about six minutes later and saw three black males hanging out there. One of three, J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct; the officers did not see a firearm, nor did J.L. make any threatening or otherwise unusual movements. One of the officers frisked J.L. and seized a gun from his pocket. J.L., 529 U.S. at 268. The Supreme Court held that the tip was insufficient to establish reasonable suspicion. Id. at 271-72.

Texas courts have followed the Supreme Court’s decision in J.L., examining whether a tip is too barebones to support reasonable suspicion. In Martinez, an anonymous tipster reported that a male driving a blue Ford pickup truck stopped at the intersection of 17th and Main Street, put two bicycles into the bed of his truck, and left the area going west. An officer on patrol in the area stopped a Ford F-250 truck that “looked like it was blue” approximately three-quarters of a mile from the reported incident that the officer considered to be a report concerning the theft of bicycles. As the officer walked to the driver’s side of the truck, he noticed two bicycles in the truck bed that had not been visible to him until he approached the truck. After the officer was informed by dispatch that there were no complaints of stolen bicycles from that location, he asked dispatch if the caller could come to the *8 scene; the caller arrived and confirmed that the officer had pulled over the same truck that had picked up the two bicycles. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). This Court found the anonymous tip insufficient to permit an investigative detention because the anonymous caller did not report contextual factors that reasonably connected the activity to a theft, such as witnessing the suspect use bolt cutters to cut a bike lock or stating that the bikes were taken from someone’s garage Id. at 924-26.

In Johnson, the Sixth District Court of Appeals reviewed the legality of the investigative detention following an anonymous tip which indicated that a black man, accompanied by two black females, driving a 1999 black Ford Taurus with a specified license plate number, was involved in possible drug activity at a specific apartment complex. The officer testified the apartment complex in question was known to be a place that regularly had drug deals and drug activity occurring. The officer reached that location less than a minute after the dispatcher relayed the information, and saw and stopped a car matching that description as the driver attempted to leave the parking lot of the complex. Johnson v. State, 146 S.W.3d 719, 721 (Tex. App.—Texarkana 2004, no pet.). The Texarkana Court found the tip insufficient to permit an investigative detention because the caller was anonymous and “there was no corroboration at the time of the stop that indicated criminal activity.” Id. at 722.

The Dallas Court’s determination that the anonymous tip in this case contained the same indicia of reliability to provide officers with reasonable suspicion to believe criminal activity was afoot is in conflict with the decision in Navarette; the anonymous tip, and information known to the officers at the time of the investigative detention, is nearly identical to the tip, and circumstances found to be insufficient by the Supreme Court in J.L., and its progeny.

In its opinion, the Dallas court of appeals likened the tip in this case to the tip in Navarette, stating:

As in Navarette, the tip was an eyewitness account of a potentially dangerous situation, was made contemporaneously with the event, and was made through the 911 system. As found by the trial court, the tipster called 911 in the early morning hours and reported a man was publicly “displaying” a gun on the parking lot of a gas station. The gas station was open for business and was located near a nightclub in a high-crime area. As officers went to the scene, the tipster stayed on the line with the 911 dispatch and provided other information in real time. The tipster gave information on the man’s attire and location as well as specific details on his vehicle, such as make, color, the lack of a front license plate, blue flashing headlights and how the car was parked. Police verified these details before making the stop.

Jackson, 2015 Tex. App. LEXIS 507 at *7.

The Dallas Court’s reliance on the holding in Navarette is misplaced. There is no doubt from the tip in Navarette that it is based on personal knowledge of very recent criminal activity, as the allegation in the 911 call makes it clear that the tipster herself is the victim of the criminal activity she is reporting, and that such criminal activity occurred within the last five minutes of the tipster making the call. In stark contrast, and contrary to the Dallas Court’s opinion, there is nothing *10 in the tip in this case that shows it “was an eyewitness account” and “was made contemporaneously with the event.”

The tip in this case is virtually identical to the tip found to be insufficient in J.L. In Navarette, the Supreme Court specifically distinguished its holding in J.L., restating the rule that because “the tipster did not explain how he knew about the gun, nor did he suggest that he had any special familiarity with the young man’s affairs,” the police “had no basis for believing ‘that the tipster ha[d] knowledge of concealed criminal activity. Navarette, 134 S. Ct. at 1688 (quoting J.L., 529 U.S. at 271-72). The Dallas Court is correct in stating that the tipster gave a description of the man’s attire and location, as well as specific details about the car, however, these facts do no more than allow the officers to correctly identify the person whom the tipster means to accuse; these facts do not show that the tipster has knowledge of concealed criminal activity. See J.L, 529 U.S. at 272.

Furthermore, even if the tipster’s failure to explain how he knew about the gun can somehow be ignored in this case, there is a question as to whether the tip can even be considered a report of criminal activity. “Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.” Navarette, 134 S. Ct. at 1689. Although the Dallas Court characterizes the tip as a report of a man “displaying” a gun in the parking lot, two of the responding officers testified during the hearing that the 911 call notes *11 indicated that the suspect had not pointed the gun or waved the gun at anyone. The Texas Penal Code allows an individual to carry a handgun when: (1) the person is on his property or on property under his control; (2) the person is walking directly to his car or a car under his control; or (3) the person has a license to carry a concealed weapon. TEX. PENAL CODE §§ 46.02; 46.15(b)(2). Based upon the tip given, the responding officers had no way of knowing whether Appellee met one of the exceptions to the general prohibition against carrying a handgun before they detained him. Furthermore, there is no evidence that the officers observed any illegal activity by Appellee or anyone else when they arrived at the gas station. Indeed, the gun was not even found on Appellee’s person, but was found in Appellee’s car under a seat only after the officers had pulled the three black males from the car because the three men all happened to be wearing a white t-shirt, as described by the tipster as the clothing worn by the man carrying the gun.

Other federal and state courts interpreting the holding in Navarette also demonstrate the conflict between the Dallas Court’s opinion and the Supreme Court’s opinion.

There is a paucity of case law construing Navarette in the Texas state courts. However, other courts’ interpretations demonstrate the conflict between the Dallas Court’s opinion in this case, and the Supreme Court’s opinion in Navarette. Courts which have examined this issue in light of Navarette have uniformly examined whether the tip: (1) necessarily claimed personal knowledge of the alleged criminal *12 activity, and (2) whether the tip was made contemporaneously. These opinions are consistently in contrast to the Dallas Court’s opinion in this case.

For example, in U.S. v. Robinson, the Northern District Court of West Virginia examined an anonymous tip case in which the anonymous caller witnessed a black male in a bluish greenish Toyota Camry, driven by a female, load a firearm and conceal it in his pocket. The caller stated the car had just left [a particular] 7-Eleven parking lot and [caller] was leaving as well. United States v. Robinson, No. 3:14-CR-28, 2014 U.S. Dist. LEXIS 112383 (N.D. W.Va. August 14, 2014, no pet. h.) (not designated for publication). The parking lot in question was in a high crime area. The West Virginia court discussed how the tip was similar to Navarette, and distinguishable from J.L.:

The caller had eyewitness knowledge of the alleged loading and possession of the firearm by the Defendant. He told [911 dispatch] that he actually saw the Defendant, who was in a bluish greenish Toyota Camry, load the firearm and conceal it.

(emphasis added). Id. at *7. The language, “He told…that he actually saw the Defendant” is similar to the language in Navarette: “Ran the reporting party off the roadway and was last seen approximately five minutes ago.” (emphasis added) Navarette, 134 S. Ct. at 1687. See also State v. Gates, 145 So.3d 288 ( La. 2014) (tip alleging blue colored pickup truck almost ran couple off road while traveling on I-20; couple “relayed information about a crime they just witnessed”); State v. McPeak, No. 40892, 2014 Ida. App. Unpub. LEXIS 264, *1 (Idaho Ct. App. June *13 11, 2014, no pet. h.) (not designated for publication) (anonymous call “reporting that an alleged assault involving a knife had recently occurred. It was reported that the suspect was McPeak, and that he had entered the home of the caller and left in a white Ford pickup.”); and State v. Braziel, No. A13-1183, 2014 Minn. App. Unpub. LEXIS 576, *8-9 (Minn. Ct. App. June 9, 2014, review denied) (not designated for publication) (“Next, and even more importantly, the caller claimed eyewitness knowledge of the alleged dangerous behavior. Eyewitness knowledge lends significant support to the tip’s reliability, even when the caller is anonymous.”). Conclusion.

This Court should grant this Petition because the Dallas Court’s opinion clearly conflicts with the decisions of the Supreme Court in Navarette, White, and J.L., as well as opinions from this Court and other Texas courts of appeals interpreting those Supreme Court decisions. Whether the tip and circumstances leading to the investigative detention in this case meet the evidentiary precision required by the Supreme Court in Navarette is an important question of law which requires the exercise of this Court’s supervisory powers. TEX. R. APP. P. 66.3 (b). Justice Thomas noted that like White, Navarette is a “close case.” Under the totality of the circumstances, and like J.L., this is not a close case. The record merely shows that the tipster alleged information that turned out to be true: at some *14 unknown point before police got there, three black males were in a Honda outside a gas station. The police were provided with a barebones anonymous tip by a caller that contained no information that the event was observed firsthand; contained no predictive information that could be corroborated to prove the reliability of the tipster; and failed to allege a crime. These factors, along with the fact that once police arrived they found three males matching the description of the single male with a gun, and no observable evidence of criminal activity, combine to prevent a finding of reasonable suspicion.

PRAYER FOR RELIEF

For the reasons herein alleged, Appellee prays this Court grant this petition, reverse the opinion of the Dallas Court of Appeals, and affirm the trial court’s order granting Appellee’s motion to suppress.

Respectfully submitted,

/s/ Kathleen A. Walsh Kathleen A. Walsh Assistant Public Defender Lynn Richardson State Bar No. 20802200 Chief Public Defender Dallas County /s/ Loren M. Collins Loren M. Collins Assistant Public Defender State Bar No. 24077823

Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, TX. 75207-4399 (214) 653-3550 (telephone) (214) 653-3539 (fax)

CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of March, 2015, a true copy of the foregoing petition for discretionary review was served on the Appellate Division of the Dallas County District Attorney’s Office by electronic delivery to DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov.

/s/ Kathleen A. Walsh Kathleen A. Walsh

CERTIFICATE OF COMPLIANCE

I hereby certify that the word count in this document is 4,371 which is prepared in Microsoft Word 2010.

/s/ Kathleen A. Walsh Kathleen A. Walsh

APPENDIX

W"LexisNexis· No Shepard's Signal™ As of: March 19, 2015 12:54 PM EDT

State v. Jackson Court of Appeals of Texas, Fifth District, Dallas January 21, 2015, Opinion Filed No. 05-14-00278-CR, No. 05-14-00279-CR

Reporter 2015 Tex. App. LEXIS 507

THE STATE OF TEXAS, Appellant v. JARQUIS D. LexisNexis® Headnotes JACKSON, Appellee

Criminal Law & Procedure> Preliminary Proceedings> Pretrial Notice: PLEASE CONSULT THE TEXAS RULES OF Motions & Procedures > Suppression of Evidence APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. Criminal Law & Procedure > ... > Standards of Review > De Novo Review > l\r1otions to Suppress Prior History: On Appeal from the County Criminal Criminal Law & Procedure > ... > Standards of Review > Court No. 3. Dallas County, Texas. Trial Court Cause Nos. Deferential Review > Credibility & Demeanor Determinations MBJ3-62072 and MB 13-62071. Evidence> .. >Testimony> Credibility of Witnesses> General Overview Core Terms Criminal Law & Procedure> Preliminary Proceedings> Pretrial Motions & Procedures > Suppression of Evidence reasonable suspicion, caller, gun, tip, trial court, anonymous Criminal Law & Procedure > ... > Standards of Review > De tip, marijuana, tipster, gas station, reliability, detention, Novo Review > Motions to Suppress suppress Criminal Law & Procedure > ... > Standards of Review > Deferential Review> Credibility & Demeanor Determinations Case Summary Evidence> ... > Testimony> Credibility of Witnesses> General Overview Overview HOLDINGS: [l]-An anonymous call leading to defendant's HNI In reviewing a trial court's ruling on a n1otion to detention contained suf1icient indicia of reliability to provide suppress, the appellate court applies a bifurcated standard of officers with reasonable suspicion to believe criminal activity review. The appellate court affords almost total deference to was afoot; [2]-The tip was an eyewitness account of a a trial judge's determination of historical facts and mixed potentially dangerous situation, was made questions of law and fact that rely upon the credibility of a contemporaneously with the event, and was made through witness. The appellate court reviews de novo pure questions the 911 system; [3]-The tipster gave information on the of law and mixed questions of law and fact that do not man's attire and location as well as specific details on his depend on credibility determinations. When the trial court vehicle, such as make, color, the lack of a front license plate, makes explicit fact findings, the appellate court determines blue flashing headlights and how the car was parked, and whether the evidence, viewed in the light most favorable to police verified these details before making the stop; the trial court's ruling, supports these findings. The appellate [4]-Because the officers had reasonable suspicion to conduct court then reviews the trial court's legal ruling de nova an investigatory stop, the trial court erred in granting unless the explicit fact findings supported by the record are defendant's motion to suppress. also dispositive of the legal ruling.

Outcome Constitutional La\v > ... > Fundamental Rights > Search & Reversed and remanded. Seizure > General Ovcrvievv

2015 Tex. App. LEXIS 507, *I

Criminal Law & Procedure > Search & Seizure > Warrantless HN4 An anonymous tip contains adequate indicia of Searches > Investigative Stops reliability to support reasonable suspicion if the content of Evidence > Inferences & Presu1nptions > Inferences the tip indicates it (1) was based on eyewitness knowledge, which lends significant support to the tip's reliability; (2) Constitutional Law > ... > Fundamental Rights > Search & was contemporaneously made, which is especially Seizure > General Overview trustworthy because substantial contemporaneity of event Criminal Law & Procedure > Search & Seizure > Warrantless and state1nent negate the likelihood of deliberate or conscious Searches > Investigative Stops misrepresentation; and (3) was made to the 911 emergency Evidence > Inferences & Presumptions > Inferences system, which has some features that allow for identifying and tracing callers, and thus provides some safeguards HN2 Under the Fourth Amendment, a warrantless detention against making false reports with immunity. of a suspect that an1ounts to less than a full-blown custodial arrest must be justified at least by a reasonable suspicion. A Counsel: For Appellants: Brian Higginbotham, Craig police officer has reasonable suspicion to detain a person if Watkins, Dallas, TX. he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to For Appellees: Kathleen Walsh, Loren M. Collins, Katherine conclude that the person detained is, has been, or soon will Drew, Lynn Richardson, Dallas, TX. be engaged in criminal activity. In determining whether an officer has reasonable suspicion to detain, the court looks at Judges: MOLLY FRANCIS, JUSTICE, Evans, and Stoddart. the totality of the circumstances through an objective lens, Opinion by Justice Francis. disregarding the officer's subjective intent. Although some circumstances may seem innocent in isolation, they will Opinion by: MOLLY FRANCIS support an investigatory detention if their combination leads to a reasonable conclusion that criminal activity is afoot. Opinion Constitutional Law > ... > Fundamental Rights > Search & Seizure > General Overview MEMORANDUM OPINION

Crimlnal Law & Procedure > Search & Seizure > Warrantless Opinion by Justice Francis Searches > Investigative Stops

Constitutional Law > ... > Fundam.cntal Rights > Search & Jarquis D. Jackson was charged with the misdemeanor Seizure > General Overview offenses of unlawfully carrying a weapon and possession of Criminal Law & Procedure > Search & Seizure > Warrantless marijuana. Appellant n1oved to suppress the evidence, Searches > Investigative Stops arguing his detention was illegal because officers did not have reasonable suspicion. The trial court granted the HN3 An anonymous tip alone is seldom sufficient to motion, and the State appealed. In a single issue, the State establish reasonable suspicion. Reasonable suspicion is argues the trial court erred in concluding an anonymous tip dependent not only on the content of the inforn1ation did not support the officers' reasonable suspicion. We agree possessed by law enforcement, but also on its reliability. To with the State. Therefore, \Ve reverse the ttial court's orders support reasonable suspicion, an anonymous tip requires and remand for further proceedings consistent with this some indicia that the caller is credible or that his information opinion. is reliable. At about 4 a.m. on September 2, 2013, a caller reported to Constitutional Law > ... > Fundamental Rights > Search & 911 that a black male in a white T-shirt was "displaying" a Seizure > General Overview gun on the parking lot of a gas station. The caJler reported Criminal Law & Procedure > Search & Seizure > Warr.intless there were na lot of people" on the parking lot, and the man Searches > Investigative Stops was with a group of seven other 1nen. The caller stayed on the line with 911 whi1e officers responded. Constitutional Law > ... > Fundamental Rights > Search & Seizure > General Overvicvv Dallas Police Officers J. [*2] Dickson, Craig Thomas, and Cri1ninal Law & Procedure > Search & Seizure > Warrantless Lance Crawford were dispatched to the scene. The gas Searches > Investigative Stops station is in a high-crime area with a nightclub nearby.

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2015 Tex. App. LEXIS 507, *2

While driving there, the officers received information that most favorable to the trial court's ruling, supports these the man with the gun had gotten into a dark-colored Honda findings. Stare v. Kellv. 204 S. \rV3d 808. 818 riex. Crin1. with no front license plate and blue headlights; the car was App. 2006). We then review the trial court's legal ruling de backed into the gas station and its headlights were flashing. novo unless the explicit fact findings supported by the record are also dispositive of the legal ruling. Id. When the officers arrived at the scene, they saw the Honda with the flashing lights matching the description given by HN2 Under the Fourth Amendment, a warrantless detention the caller. As the officers got out of their vehicles, the of a suspect that a1nounts to less than a fu11-blown custodial Honda started to pull away. The officers, who had their gum arrest must be justified at least by a reasonable suspicion. drawn but at their side, motioned for the car to stop, and the State v. Elias, 339 S. \¥.3d 667, 674 (Tex. Crim. Apo. 2011 ). vehicle did. As they approached the vehicle, Crawford said A police ofiicer has reasonable suspicion to detain a person he could smell marijuana. The officers had the three if he has specific, articulable facts that, con1bined with occupants, who were all dressed in white T-shirts, get out of rational inferences from those facts, would lead him the car while they patted them down for weapons. No reasonably to conclude that the person detained is, has been, weapons were found. The doors of the vehicle were left or soon will be engaged in criminal activity. Id. In open when the occupants got out. Whi1e one of the officers determining whether an officer has reasonable suspicion to checked for warrants, Thomas walked around the vehicle detain, we look at the totality of the circumstances through and spotted a gun in plain view on the passenger floorboard. an objective lens, disregarding the officer's subjective The gun \Vas '~slide-side down, with the grip closest facing intent. ltfatthe}vs v. State, 431 S, W3d 596, 603 (Tex. Crifn. the driver." [*31 Appellant said the gun was his. The warrant App. 20.l4j. Although some circumstances may seem check revealed that appellant had outstanding warrants, and innocent J.*5] in isolation, they will support an investigatory officers arrested him. In the search incident to arrest, they detention if their combination leads to a reasonable found marijuana in his pocket. Marijuana was also found in conclusion that criminal activity is afoot. Id. the vehicle. HN3 An anonymous tip alone is seldom sufficient to At the scene, Crawford used the number on the 911 call establish reasonable suspicion. Id. Reasonable suspicion is sheet to contact the tipster to see 1f he could "get more dependent not only on the content of the information information:" The man told Crawford he was there when possessed by law enforcement, but also on its reliability. Id. officers drove up and confi1med they were investigating the To support reasonable suspicion, an anonymous tip requires correct vehicle. Crawford asked for the man's name, but he some indicia that the caller is credible or that his information declined, saying he was "just passing through town" and is reliable. Id. wanted "to stay anonymous." Since the trial court's n1ling, the United States Supreme At the conclusion of the hearing, the trial court made oral Court issued its opinion in 1Vavarette v (7ali(ornia, J34 S. findings consistent with the evidence and recessed for two Ci. 1683. 188 L. Ed. 2d 680 12014), which considered the weeks. At the subsequent hearing, appellant argued the sufficiency of an anonymous tip to conduct an investigatory anonymous tip did not provide reasonable suspicion for the stop. In Navarette, a 911 caller, presumed by the court to be investigatory detention and relied on the U.S. Supreme anonymous, reported that a vehicle ran her car off the road. Court's decision in Florida v. J.L 529 U..)~ 266 120 S. Ct. The caller provided the location as well as a description of 1375. f.16 L. Ed. 2d 254 (20001. The trial court agreed and the vehicle and license plate number. The 911 dispatcher granted the motion to suppress. relayed the information to officers. / 34 S. Ct. at 1686-87. About eighteen minutes later, officers spotted a vehicle HNI In reviewing a trial court's ruling on a motion to some nineteen 1niles south of the location reported in the tip. suppress, we apply a bifurcated standard of review. 1'1-lartinez id. at 1689. The officers pulled the truck over. As they v. State. 348 S. lV.3d 919. 922-23 (Tex. (7rim. Apr. 2011 J. We approached, they s1nelled marijuana and a subsequent afford almost total deference to a trial judge's detennination search revealed 30 [*61 pounds of marijuana in the bed of of historical facls and mixed questions of law and fact [*41 the truck. Id. at 1687. that rely upon the credibility of a witness. Id. We review de novo pure questions of law and mixed questions of law and The court held HN4 the anonymous tip contained adequate fact that do not depend on credibility dete1minations. Id. indicia of reliability to support reasonable suspicion because When, as here, the trial court makes explicit fact findings, the content of the tip indicated it (l) was based on we determine whether the evidence, viewed in the light eyewitness knowledge, which "lends significant support to

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2015 Tex. App. LEXIS 507, *6

the tip's reliability"; (2) was contemporaneously made, dispatch and provided other inforn1ation in real time. The which is "especially trustworthy because 'substantial tipster gave infonnation on the man's attire and location as contemporaneity of event and statement negate the likelihood well as specific details on his vehicle, such as make, color, of deliberate or conscious misrepresentation"'; and (3) was the lack of a front license plate, blue fla.5hing headlights and made to the 911 emergency system, which "has some how the car was parked. Police verified these details before features that allow for identifying and tracing callers, and making the stop. After the stop, one of the officers thus provide some safeguards against making false repo1ts contacted the tipster, who verified the officers were with immunity." tVavarette. 134 S. C:t. at .1689-90; see investigating the correct vehicle. Because we conclude the Ma/thews 431 S.W.3d m 604 n.29. officers had reasonable suspicion to conduct an investigatory stop, the trial court erred in granting the motion to suppress. The court distinguished its decision from that in J.L., the We sustain the State's sole issue. case relied on by appel!ee below and on appeal. J.L. involved an anonymous caller who reported to the police We reverse the trial court's orders and remand these causes that a young black male, wearing a plaid shirt, was standing for proceedings consistent with this opinion. at a particu1ar bus stop and was can·ying a gun. 529 l.J.S. at /Molly Francis/ 268. The court identified two critical distinctions between the Navarette tip and the J.L. tip: (1) the J.L. tip "provided MOLLY FRANCIS nowbasis for concluding that the tipster had actually seen the gun" and (2) there was no indication that [*7] the J.I,. tip JUSTICE was made contemporaneously with crin1inal activity or under the stress of excitement caused by a startling event. ,JUDGMENT Id. at 1689. Based on the Court's opinion of this date, the trial court's Having reviewed the evidence and the trial court's oral order granting the motion to suppress is REVERSED and findings, we conclude the anonymous call leading to the cause REMANDED for further proceedings consistent appellant's detention contained sufficient indicia of reliability with this opinion. to provide officers with reasonable suspicion to believe criminal activity was afoot. As in 1Va1'arette, the tip was an Judgment entered January 21, 2015. eyewitness account of a potentially dangerous situation, was made contemporaneously with the event, and was made JUDGMENT through the 911 system. As found by the trial court, the Based on the Court's opinion of this date, the trial court's tipster called 911 in the early morning hours and reported a order is REVERSED and the cause REMANDED for man was publicly "displaying" a gun on the parldng Jot of a further proceedings consistent with this opinion. gas station. The gas station was open for business and was localed near a nightclub in a high-crime area. As officers Judgment entered January 21, 2015. went to the scene, the tipster stayed on the line with the 911

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