2008-08

John Walter Caldwell v. State ( 2008 )

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NUMBER 13-07-00045-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN WALTER CALDWELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 284th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez
Following the denial of his motion to suppress evidence, appellant, John Walter
Caldwell, pleaded guilty to the offense of possession of a controlled substance. See TEX .
HEALTH & SAFETY CODE ANN . § 481.115(c) (Vernon 2003). The trial court certified
Caldwell's right to appeal and assessed punishment at twenty years' confinement in the
Texas Department of Criminal Justice-Institutional Division. By three issues, Caldwell
appeals the trial court's denial of his motion to suppress. We reverse and remand.
I. SUPPRESSION HEARING
At the hearing on his motion to suppress evidence, Caldwell asserted that the police
seized crack cocaine in violation of the United States and Texas Constitutions. See U.S.
CONST . AMEND . IV; TEX . CONST . art. I, § 9. The crack cocaine was found when police
entered a tool shed on the premises of Caldwell's residence without first obtaining a
warrant. At the hearing, the State presented the testimony of Detectives Carl Jones and
Ricky Cathey; Caldwell presented the testimony of Walter Curtis Hightower.
Detective Jones testified that he received a call from an anonymous person1 who
informed him that a black male, wearing a black hat, black shirt, white undershirt, and blue
jeans would have crack cocaine in his right front pocket at a house located at 407 Marlin
Street. Detective Jones stated that after receiving the call, he picked up Detective Cathey
and proceeded to the location.
Detective Jones further testified that, when they arrived, some men were standing
around in the driveway area of the residence. Detective Jones saw Caldwell standing
between two buildings, wearing clothing identical to that described by the caller. He
testified that after they exited their vehicle, Caldwell "made a movement towards a [tool
shed] behind the house." Before Caldwell stepped into the tool shed, Detective Jones saw
that Caldwell had his hand in his right front pocket, which concerned him "because my
person that had given me the information advised me that the narcotics would be in the
1
On cross-exam ination by the State, W alter Curtis Hightower adm itted that he was the person who
called Detective Jones to report that Caldwell had crack cocaine in his pocket.
2
right front pocket." Specifically, Detective Jones saw Caldwell pull his hand out of his
pocket before he went into the tool shed. Detective Jones reached the tool shed as
Caldwell exited, then "stepped up into the [tool shed]" to "make sure there was nobody else
inside" and "directed [Caldwell] towards Detective Cathey." Detective Jones testified that
"there was a toolbox inside. And I just glanced down, and you could see the cellophane
narcotics." He retrieved the narcotics and arrested Caldwell.
Detective Cathey testified that Detective Jones told him what the suspect would be
wearing, and that after arriving at the location, he saw that Caldwell was wearing clothing
as described. Detective Cathey explained that, based on Detective Jones's information
that Caldwell had crack in his front right pocket, he focused his attention on Caldwell to
make sure that he did not throw the crack away. Detective Cathey stated:
At that point when we pulled up he was starting to walk away from us, and
his right hand went into his right pocket. . . . He walked to a–I would say it's
like a detached garage with a door facing north. At that point he started
entering the door. And I saw his right hand come out and him disappear
inside.
According to Detective Cathey, he stayed with the three or four individuals who were
standing in the driveway, while Detective Jones followed Caldwell to the tool shed, and by
the time he reached it, Caldwell was exiting. Detective Jones sent Caldwell to where
Detective Cathey was standing, then entered the tool shed. When he exited the tool shed,
he had several rocks of crack cocaine that were wrapped in a plastic bag.
After hearing the evidence, the trial court denied Caldwell's motion to suppress.
Caldwell subsequently pleaded guilty and was sentenced to twenty years' confinement.
This appeal ensued.
3
II. APPLICABLE LAW AND STANDARD OF REVIEW
An individual is guaranteed the right to be secure from unreasonable searches.
U.S. CONST . amend IV; TEX . CONST . art. I, § 9. A warrantless search is presumptively
unreasonable under the Fourth Amendment, unless a recognized exception to the warrant
requirement exists. United States v. Karo,

468 U.S. 705

, 717 (1984); Fonseca v. State,

881 S.W.2d 144

, 149 (Tex. App.–Corpus Christi 1994, no pet.). The State may validate
a warrantless search under the doctrine of exigent circumstances, which is a recognized
exception to the warrant requirement. Gutierrez v. State,

221 S.W.3d 680

, 685 (Tex. Crim.
App. 2007); see

Fonseca, 881 S.W.2d at 149

(providing that "[t]he State bears the burden
of establishing the legality of a warrantless search or seizure"). Under the exigent
circumstances doctrine, the State may justify a warrantless search or entry of a specific
location if it shows that: (1) probable cause existed at the time the search was made; and
(2) exigent circumstances existed, which made the procuring of a warrant impracticable.

Gutierrez, 221 S.W.3d at 685

(providing that "if police have probable cause coupled with
an exigent circumstance . . . the Fourth Amendment will tolerate a warrantless search");
see Parker v. State,

206 S.W.3d 593

, 597 (Tex. Crim. App. 2006) (setting out that "a
warrantless entry into a residence is considered equivalent to a warrantless search");
McNairy v. State,

835 S.W.2d 101

, 106 (Tex. Crim. App. 1991) (en banc). Probable cause
is the accumulation of facts which, when viewed in their totality, would lead a reasonable
police officer to conclude, with a fair probability, that a crime has been committed or is
being committed.

Parker, 206 S.W.3d at 599

.
4
An anonymous telephone call, standing alone, will not provide sufficient probable
cause for a warrantless search. Rojas v. State,

797 S.W.2d 41

, 43 (Tex. Crim. App. 1990)
(en banc); Glass v. State,

681 S.W.2d 599

, 601 (Tex. Crim. App. 1984) (en banc)
(providing that an anonymous phone call, without corroboration, will never provide sufficient
facts that would authorize a warrantless search). "Moreover, mere corroboration of details
that are easily obtainable at the time the information is provided will not support a finding
of probable cause." Parish v. State,

939 S.W.2d 201

, 203 (Tex. App.–Austin 1997, no
pet.). However, through independent corroboration of the informant's information, the
police can provide other indicia of the informant's reliability. Elardo v. State,

163 S.W.3d 760

, 767 (Tex. App.–Texarkana 2005, pet. ref'd);

Parish, 939 S.W.2d at 203

. Indicia of
reliability of the informant's tip include the extent of detail that is provided and whether
future events are predicted. See Eisenhauer v. State,

678 S.W.2d 947

, 955 (Tex. Crim.
App. 1984) (en banc); see also Illinois v. Gates,

462 U.S. 213

, 244-46 (1983);

Rojas, 797 S.W.2d at 44

(setting out that anonymous tip did not provide information based on special
or personal knowledge).
Whether the trial court properly denied a defendant's motion to suppress is a mixed
question of law and fact. Estrada v. State,

154 S.W.3d 604

, 607 (Tex. Crim. App. 2005);
Guzman v. State,

955 S.W.2d 85

, 87 (Tex. Crim. App. 1997). "When reviewing a trial
court's ruling on a mixed question of law and fact (as is the determination of probable
cause in the pretrial suppression hearing in this case), the court of appeals may review de
novo the trial court's application of the law of search and seizure to the facts of the case."

Estrada, 154 S.W.3d at 607

. Although "[w]e review de novo the application of the law to
5
facts . . . we also afford almost total deference to the trial court's evaluation of the credibility
and demeanor of the witnesses who testified at the pre-trial hearing."

Id. "The question

of whether a specific search or seizure is 'reasonable' or supported by probable cause
under the Fourth Amendment is subject to de novo review." Dixon v. State,

206 S.W.3d 613

, 616 (Tex. Crim. App. 2006). The evidence must be viewed in the light most favorable
to the trial court's ruling when the trial court makes no explicit findings of historical fact, as
in this case.

Id. We must

uphold the trial court's ruling if it is correct under any theory of
law applicable to the case.

Estrada, 154 S.W.3d at 607

.
III. ANALYSIS
By his first issue, Caldwell asserts that, in considering the totality of the
circumstances, the police did not have the required probable cause to justify the
warrantless entry into the tool shed. The State argues that the detectives did have
probable cause to enter the tool shed because "[Caldwell's] actions corroborated the
phoned-in tip."
Detective Jones testified that he received a call from "a person" who informed him
that Caldwell would have crack cocaine in his right front pocket and would be at 407 Marlin
Street. Detective Jones did not identify the person who supplied this information, and the
State did not present any testimony or evidence regarding the person's reliability. See

Rojas, 797 S.W.2d at 43

. Relying on Lunde v. State, the State argues that Caldwell's
actions at the scene corroborated the information provided by the informant. See

736 S.W.2d 665

, 667 (Tex. Crim. App. 1987). However, in Lunde, the State provided evidence
of the informant's reliability, while in this case there was none. See

id. ("As was

the case
6
in Whaley v. State,

686 S.W.2d 950

(Tex. Crim. App. 1985), the informant was one who
had given reliable and credible information in the past, resulting in criminal convictions.").
Standing alone, the tip in the present case completely lacks the necessary indicia of
reliability. It provides no information from which to conclude the caller was honest or his
information reliable, and gives no indication for the basis of his knowledge of appellant's
criminal activities. See Dowler v. State,

44 S.W.3d 666

, 670 (Tex. App.–Austin 2001, pet
ref'd) (explaining that "[a]n accurate description of a subject's readily observable location
and appearance will help the police correctly identify the person whom the tipster meant
to accuse, but does not show that the tipster has knowledge of concealed criminal
activity"). Therefore, the State was required to provide other indicia of the informant's
reliability. See

Whaley, 686 S.W.2d at 951

("[A] deficiency in one [element (reliability,
veracity or basis of knowledge)] may be compensated for, in determining the overall
reliability of a tip . . . by some other indicia of reliability.");

Elardo, 163 S.W.3d at 768

.
The State urges this Court to conclude that the detectives "were able to corroborate
the key detail of the tip–that the cocaine would be in [Caldwell's] front right pocket–by
observing [Caldwell] stuff his hand into the very pocket the tipster said the drugs would be
found and then heading towards the tool shed." We decline to do so. See

Parker, 206 S.W.3d at 597

("[W]hen the question is probable cause to cross the threshold of a private
residence, probable cause may point to the location, but not necessarily a specific
person."). The fact that Caldwell put his hand in his right pocket as he entered the tool
7
shed was not sufficient to corroborate the tip that Caldwell had drugs in his pocket thereby
authorizing a warrantless entry into the tool shed.2 See