
    Robert O’BRYAN, Appellant v. The STATE of Texas, State
    NO. 02-14-00313-CR
    Court of Appeals of Texas, Fort Worth.
    DELIVERED: May 28, 2015
    
      Richard S. Gladden, Denton, for Appellant.
    Catherine Luft,Assistant Criminal District Attorney, Denton, Lara Tomlin, for The State of Texas.
    PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
   OPINION

BONNIE SUDDERTH, JUSTICE

I. Introduction

In two issues, Appellant Robert O’Bryan appeals the denial of his motion to suppress, arguing that his stop and detention was without reasonable suspicion and therefore violated the Fourth Amendment to the U.S. Constitution. We affirm.

II. Background

The' facts of this casé are- undisputed. On February 22, 2013, Northlake Police Sergeant Dwight Thornton ran a routine records check on a green four-door Pontiac through the National Crime Information Center (NCIC) and the Texas Crime Information Center (TCIC); a report from Denton Police Department (Denton P.D.) indicated that the .vehicle was reported stolen. After receiving the report, Sergeant Thornton contacted Denton County Sheriff Department Dispatch to verify the information. Dispatch confirmed that the car was stolen, so Sergeant Thornton requested additional, units. Two other units arrived,, and the officers performed'a felony stop on the vehicle. O’Bryan was the only person in the car.

After he was detained, Sergeant Thornton reported the VIN number of the vehicle to Denton County Dispatch, who then matched it with their records and confirmed with Denton P.D. Dispatch that the vehicle was stolen. While waiting on the confirmation, Sergeant Thornton began investigating the unauthorized use of a motor vehicle offense. Upon searching the vehicle, he found a pill bottle with'multiple pills inside and no label on the outside. Upon further inspection, Sergeant Thornton discovered the pills to be prescription drugs for which O’Bryan did not have a valid prescription. O’Bryan was arrested and the car was impounded.-

As it turned out, the car was not stolen. Although - O’Bryan’s father, Charles O’Bryan, reported the vehicle stolen in August 2012, it was recovered one month later, in September 2012. ’O’Bryan filed a motion to suppress all of the evidence, arguing, in essence, that since the stolen vehicle information Sergeant Thornton relied upon was erroneous, the .stop was without reasonable suspicion, thereby violating the Fourth Amendment.

At the suppression hearing, Sergeant Thornton testified to the facts leading up to. O’Bryan’s arrest, and Denton P.D. Communications Officer Patricia Killebrew testified about her efforts to confirm the status of the vehicle as stolen.

Officer Killebrew testified that.on February 22, she received a dispatch requesting confirmation of the. stolen vehicle. She ran the plate number through “the system,” and it confirmed that the car was stolen. She then pulled the actual paper report, which further verified the car was stolen. The following day, Officer Kille-brew learned from Sergeant Frank Pad-gett that the information she had obtained and relayed regarding the stolen vehicle was erroneous.

Officer Killebrew also provided testimony about departmental policies regarding the input and removal of data into NCIC. She stated that when Dispatch confirms a vehicle as stolen and the officer recovers it in the field, like in this case, then Dispatch removes the vehicle from NCIC at' the time of confirmation. In the alternative, if a vehicle is recovered, but there has been no call for confirmation, then the officer creates a supplemental report that is forwarded to Dispatch, and Dispatch removes the vehicle from NCIC upon receipt of the report. In this, case, although an officer prepared a supplemental report when the car was recovered, the NCIC record was not updated.

■ Officer Killebrew testified that the mistake in not removing this vehicle from NCIC could have occurred in one of two ways. Either the officer never forwarded the supplemental report to Dispatch, or he did deliver the supplemental report and Dispatch failed to act on it. Regardless of who made the mistake, Officer Killebrew confirmed that the error occurred within the Denton P.D;

The trial court denied O’Bryan’s motion to suppress and entered findings of fact and conclusions of law.

III. Suppression

O’Bryan does not dispute that reasonable suspicion existed at the time the officer entered the, stolen vehicle report into NCIC. However, O’Bryan argues that applying the collective knowledge doctrine, reasonable suspicion ceased to exist once the vehicle was recovered. Therefore, O’Bryan argues, because reasonable suspicion no longer existed when Sergeant Thornton pulled him over, ‘ O’Bryan’s Fourth Amendment rights were violated.

A. 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). Wé 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 y, State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 SW.3d 644, 652-53 (Tex.Crim.App.2002).

When the trial court makes explicit fact-findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those fact-findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App.2006). We then review the trial court’s legal ruling de novo unless its explicit fact-findings that are supported by the record are also dispositive of the legal ruling. Id. at 818. 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. 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, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004).

B. Applicable Law

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const, amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial- burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert. denied, 558 U.S. 1093, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). An officer conducts á lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App.2010); Ford, 158 S,W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that -disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.

C. Analysis

O’Bryan asserts that when assessing whether the detention of O’Bryan was supported by reasonable suspicion we must consider the “collective knowledge” of all law enforcement authorities at the -time the stop occurred, including; police knowledge that the vehicle had been recovered and returned to its owner prior to the stop. As will be discussed below, theoretically the collective knowledge doctrine could be applied either permissively or prohibitively. In this case, O’Bryan seeks a prohibitive application of the doctrine.

The collective knowledge doctrine, or the fellow officer rule, is the “principle that an investigative-stop or an arrest is valid even if the law-enforcement officer lacks, personal knowledge to establish reasonable suspicion or probable cause[,] as long as the officer is acting'on -the knowledge of another officer and the collective knowledge of the law-enforcement office.” Black’s Law Dictionary 735 (10th ed. 2014). This doctrine was first, discussed by the United States Supreme Court in 1971 in the context of probable cause to support an arrest, see Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and was extended by the Court in 1985 to encompass reasonable suspicion to detain a person briefly in an attempt to obtain further information, see U.S. v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Both Whiteley and Hensley apply the collective knowledge doctrine in' a permissive manner. The Texas Court of Criminal'Appeals has also applied this doctrine, but only permissively as well. See Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App.1987); Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App.1982) (op. on reh’g).

O’Bryan points out that while the collective knowledge doctrine has been applied only permissively in Texas, other jurisdictions also apply the doctrine prohibitively:

The “fellow officer” or “collective knowledge” rule cannot function solely permissively, to validate conduct otherwise unwarranted; the rule also operates prohibitively, by imposing on law enforcement the responsibility to disseminate only accurate information.

People v. Ramirez, 34 Cal.3d 541, 194 Cal.Rptr. 454, 668 P.2d 761, 765 (1986). In urging this court to permit a prohibitive application of the doctrine in this case, O’Bryan essentially argues that if collective knowledge can be used to form a basis to find reasonable suspicion, then collective knowledge can also be used to negate reasonable suspicion.

While four states have extended the collective knowledgé doctrine to apply prohibitively, Texas is not one of them.

Whether as a repository for collective knowledge or as an historically trustworthy source of information, NCIC — and its records — has received widespread acceptance as providing a sufficient basis for both probable cause and reasonable suspicion. See Delk v. State, 855 S.W.2d 700, 711 (Tex.Crim.App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993) (holding that information obtained from the NCIC system provides an investigating officer with reasonable suspicion to detain a driver and conduct further investigation); Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App.1984) (holding that the NCIC stolen-vehicle return provided independent probable cause to arrest appellant for theft of the automobile); see also Williams v. State, No. 14-08-00268-CR, 2009 WL 3643513, at *4 (Tex.App.-Houston [14th Dist.] Nov. 5, 2009, pet. ref'd) (mem. op., not designated for publication) (holding that NCIC provided reasonable suspicion to stop appellant who was driving a vehicle that was reported stolen); Nevels v. State, No. 14-13-00497-CR, 2004 WL 769804, at ⅜2 (Tex.App.-Houston [14th Dist.] Apr. 13, 2004, no pet.) (mem. op., not designated for publication) (holding that an NCIC report that a car was stolen is sufficient to support probable cause); Nunnally v. State, No. 11-03-00237-CR, 2004 WL 292051, at *2 (Tex.App.-Eastland Feb. 12, 2004, pet. ref'd) (opinion, not designated for publication) (noting that the officer had probable cause to arrest the appellant based on computer information he received); Givens v. State, 949 S.W.2d 449, 452 (Tex.App.-Fort Worth 1997, pet. ref'd) (recognizing that the officer’s reliance on NCIC provided probable cause for the arrest). ,

And while no Texas courts have directly addressed the prohibitive application, of the collective knowledge doctrine when considering reasonable suspicion or probable cause, in considering NCIC information as a basis for probable cause and reasonable suspicion, they have addressed the possibility of error and its effect on these burdens. 'See Brown v. State, 986 S.W.2d 50, 54 (Tex.App.-Dallas 1999, no pet.) (holding that “it is not necessary for the NCIC database of stolen vehicles to be accurate on every occasion for an NCIC hit to establish probable cause,” and an officer may rely on the information even if it is later proved to be erroneous); see also Thornton v. State, No. 10-12-00431-CR, 2014 WL 813745, at *2 (Tex.App.-Waco Feb. 27, 2014, no pet.) (mem. op., not designated for publication) (holding actual ownership of a vehicle was not relevant to the detention of thé appellant because the officer had reasonable suspicion to detain appellant based on NCIC information, éven if it was later proven to be incorrect), Cardiel v. State, No. 03-11-00220-CR, 2012 WL 2077908, at *1 n. 1 (Tex.App.Austin, June 7, 2012, no pet.) (mem. op., not designated for publication) (explaining that even though appellant’s stop was based on a stolen vehicle report that turned out to be incorrect, the fact the report was mistake'n did not render ;the stop or arrest invalid); Mount v. State, 217 S.W.3d 716, 728 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (op. on -reh’g) (“An investigatory detention or an arrest is not invalid merely because an officer relies upon reasonably trustworthy information that later proves to' be erroneous.”); Givens, 949 S.W.2d at 451 (holding that extrinsic proof of NCIC accuracy is not required to overcome a motion to suppress).

In Brovm v. State, the Fifth Court of Appeals states that

[I]t is well- established an arrest is not invalid merely because an officer relies on reasonably trustworthy information which later proves to be erroneous. Therefore, it is not necessary for the NCIC database of stolen vehicles to be accurate on every occasion for an NCIC hit to establish probable cause. On the basis of the current record, we have no reason to question whether stolen vehicle information obtained from the NCIC is reasonably trustworthy. Accordingly, we conclude the NCIC information available to the officers here established probable cause for the warrantless arrest.

986 S.W.2d at 58-54 (internal citations omitted).

For the reasons stated above, we hold that the NCIC report was sufficient to establish reasonable suspicion and therefore conclude that O’Bryan’s constitutional rights were not violated by his warrantless arrest. We overrule his first issue.

IV. Conclusion

Having overruled O’Bryan’s dispositive issue, we affirm the trial court’s judgment.

. DAUPHINOT, J., filed a dissenting opinion.

LEE ANN DAUPHINOT, JUSTICE,

dissenting.

Respectfully, I cannot join .the thoughtful majority. I do not understand the majority’s hypothesis that in Texas, imputed knowledge may only expand the authority of the prosecution but may not protect the constitutional rights of the accused.

The obligations stemming from imputed knowledge within the prosecution team have long been recognized in Texas courts. In 1989, in an earlyexoneration case, the Texas Court of Criminal Appeals concluded that Randall Dale Adams had been convicted of capital murder on perjured testimony. The Texas Court of Criminal Appeals explained,'

The issue of Miller’s perjurious testimony regarding her identification of the applicant involves both the suppression of evidence favorable to the accused and the State’s knowing use of false testimony. During the applicant’s trial, after the three rebuttal witnesses had testified and Miller had identified the applicant, the State closed. The applicant’s attorney then belatedly requested a hearing outside the presence of the jury in order to determine whether Miller’s identification testimony had been tainted by an improper photo spread or lineup. The trial judge observed that the request was untimely because Miller had already identified the applicant. Nevertheless, he permitted the hearing .to. allow the applicant to perfect a bill of exception.' It was during this hearing that Miller perjured herself by testifying falsely that, she; -had identified the applicant in a lineup and that no one had influenced her in her identification. After the hearing the trial judge commented that he considered the issue of a tainted identification to have been waived by the defense, but emphasized that the defense had the right to go into it in front of the jury. In this regard it taust be remembered that at this time the applicant had no knowledge of the truth about the identification or the pri- or inconsistent statement.
Following his . comments. to counsel, the judge concluded! ] that Miller’s identification testimony “was not influenced either by the witness having seen photographs. of the defendant or by the witness having viewed the defendant in a lineup of people conducted by law enforcement authorities.”. He further stated: “The Court finds there is no taint, that the identification of the witnesses in court is based solely on the witnesses having viewed the defendant at the time and place where the offense was committed as alleged in the indictment.” He also commentfed] that irrespective of his factual findings a waiver of a defect in the identification had occurred.
Mulder testified that he did not know Miller had identified someone other than the appellant in the lineup, nor did he know that the officer in charge of the •lineup told her who she should have identified. However, this is insufficient to remove the taint of the prosecution’s knowing use of perjured testimony. As previously noted, the United States Supreme Court has expressly recognized that when confronted with perjurious testimony the ■ prosecutor has a duty to .correct it. Further, whether the prosecutor had actual knowledge of the falsity of the testimony is irrelevant. If the ...prosecutor should have known is sufficient. Thus, the Supreme Court has endorsed the imputation of knowledge, at least from one prosecutor to another. However, the extent of this imputation of knowledge has been expanded. In Williams v. Griswald [743 F.2d 1533 (11th Cir.1984)], the court of appeals stated: “It is of no consequence that the facts pointed to may support only knowledge of the police because such knowledge will be imputed to state prosecutors.” In United States v. Anione [603 F.2d 566 (5th Cir.1979)], the court of appeals observed that it has “declined to draw a distinction between different agencies under the satae government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.”
The Dallas police officer that “helped” Miller was by her own admission in charge of the lineup. Consequently, as a part of the investigating team his knowledge of Miller’s lack of identification at the lineup and his assistance to her is imputed to Mulder. Consequently; when Miller testified ‘ that she had identified the applicant in a lineup Mulder had an obligation to correct the perjured testimony.

The Adams court “declined to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.”

The imputed knowledge rule, is still alive and well. In 2014, the Texas Court of Criminal Appeals stated,

In [Maine v.] Moulton [474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) ], the Supreme Court indicated that a [United States v.] Massiah [307 F.2d 62 (2d Cir.1962)] violation occurs only if the State “knowingly circumvented” the right to counsel. The court of appeals’s opinion suggests that a knowing circumvention did not occur because Midland law enforcement was unaware that appellant had counsel. ■ Appellant’s position is that the knowledge of Ector County law enforcement should be imputed to Midland County law enforcement. -
Appellant has the better of the argument. In Michigan v, Jackson [475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)], the 'Supreme Court held that the State is responsible, in the Sixth Amendment context, for the knowledge of all of its actors:
Sixth Amendment principles require that we impute the State’s knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).
In so concluding, the Supreme Court cited and quoted from Moulton, a Massiah case. It is true that, in Montejo v. Louisiana [556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) ], the Supreme Court overruled Jackson insofar as it imposed a prophylactic rule forbidding interrogation once the accused has requested counsel. But the Montejo decision expressly stated that it was not concerned with the substantive- scope of the Sixth. Amendment right to counsel, and in so saying it cited both Moulton and Massiah. We do not agree with the court of appeals that the Supreme Court’s decision to overrule Jackson-constituted an abandonment of the rule of imputing knowledge to the State.

The majority is correct that, generally, the police may detain a person based on an entry in NCIC. But in the case now before this court, the Denton police department was aware that the car was not stolen and that there should be no NCIC entry reporting that it was stolen. No one knows why the stolen vehicle report was not properly withdrawn. But the knowledge of the Denton police department is imputed to Northlake police. Consequently, police had no reasonable suspicion to support their original detention of Appellant.

The majority appears to suggest a good faith exception to the warrant requirement when the police rely on NCIC. But Texas recognizes only the good faith exception found in the Texas Code of Criminal Procedure:

It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting' in objective good faith reliance upon a warrant issued by a neutral magistrate" based on probable cause.

In the case now before this court, there is no warrant, and there is no requirement that a neutral magistrate screen the information before it can be entered on NCIC. Under the facts of this case, good faith does not justify the unlawful detention of Appellant, nor does the NCIC entry that should have been withdrawn because the Denton police candidly explained that they knew the car had not been stolen, that it had been reported to them as stolen in error, and that the entry should have been withdrawn. The original detention of Appellant was unlawful.' '

For these reasons, I must respectfully dissent. ' .. 
      
      . According to the record, her conversation with Sergeant Padgett was prompted by a telephone inquiry the Sergeant had received from O’Biyan’s sister, Lori Reeves, who informed Sergeant Padgett that although the impounded vehicle had at one time .been reported stolen, it had since been recovered. Sergeant Padgett then ' followed up on this conversation with Officer Killebrew.
     
      
      . Officer Killebrew stated that she removed the vehicle from NCIC immediately after she received Sergeant Thornton’s call for confirmation.
     
      
      . Nor was the supplemental report included among the documents available to Officer Kil-lebrew — on the computer or in paper form— in the file she reviewed to confirm the stolen vehicle.
     
      
      . California, Maryland, New York, and Washington
     
      
      . Having overruled O’Bryan’s first issue, we need not reach his second issue. See Tex. R.App. P. 47.1.
     
      
      . Ex parte Adams, 768 S.W.2d 281, 290-91 (Tex.Crim.App.1989).
     
      
      . Id. at 291-92 (citations omitted).
     
      
      . Id. at 292; see also Ex parte Castellano, 863 S.W.2d 476, 484-85 (Tex.Crim.App.1993) (holding that peace officer who was not assigned to an arson case but who took it upon himself to assist and engage in perjury for private reasons was nevertheless acting under color of law and part of the prosecutorial team).
     
      
      . Rubalcado v. State, 424 S.W.3d 560, 573-74 (Tex.Crim.App.2014) (citations omitted).
     
      
      . See id. at 574.
     
      
      . Tex.Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
     