Driving Near 6th Street Late at Night - Must Be Drunk

My last post was about the “reasonable suspicion” standard as applied by the 4th District Court of Appeals (San Antonio). A day after posting about that case, the Court of Criminal Appeals released a new “reasonable suspicion” case – Foster v. State. In this case, the CCA reverses the 3rd District Court of Appeals (Austin) which previously held that reasonable suspicion did not exist to justify appellant’s investigative detention. The CCA concludes, however, that the officer did have reasonable suspicion to justify detaining appellant. The detention resulted in appellant’s arrest and conviction for DWI.

What is becoming all too clear from reading these cases is that a “reasonable suspicion” determination can go either way, and that a big factor in the case is the initial ruling of the trial court. The law requires that appellate courts give the trial court decision great deference, which, if this standard is applied, can make it quite difficult to overturn a trial judge’s ruling on this issue.

Let’s see what you think about the CCA’s determination that the officer has “reasonable suspicion” to justify appellant’s detention. Here’s what the officer observed:

• Appellant was driving his vehicle near the Sixth Street bar district in Austin.
• It was late at night.
• Austin police often observe people driving while intoxicated near this area late at night.
• Appellant stopped his vehicle closely behind the officer’s unmarked vehicle at a traffic light.
• Appellant’s vehicle exhibited a lurching movement forward after he had stopped at the light.
• Appellant’s vehicle moved forward again as if to try to change lanes at the light, but he was too close to the officer’s unmarked vehicle to execute the lane change.

That’s it. That is all the objective evidence the officer had to justify the investigative detention that led to appellant’s arrest for DWI. A little flimsy if you ask me. Okay, you might say, “But wasn’t he actually driving while intoxicated? Why does it matter that the officer’s reason for the stop is a bit flimsy?” I’ll tell you why. Because we don’t live in Nazi Germany. The police cannot simply stop you whenever they have a hunch. The U.S. Constitution gives us the right to be “secure in our person, houses, papers, and effects against unreasonable searches and seizures” and we should guard against even the slightest erosion of this right. Any police detention that is not based upon specific, articulable facts should be met with sharp contempt. That’s my $0.02. But, once again, this case turned on the trial court’s initial ruling that the stop was justified, and based on the great deference owed that decision, the CCA felt it must uphold the trial court’s ruling.

Halt! Who Goes There?

A while ago, I wrote about consensual police encounters and how they differ from investigative detentions. See previous posts HERE and HERE. There are several factors that courts consider when determining whether a situation amounts to a consensual encounter or an investigative detention, but the short version is that if a person submits to a police officer’s show of authority and it does not appear that the person is allowed to leave, then the situation is an investigative detention (it might even be an arrest, but that’s another analysis). While consensual police encounters can be initiated for no cause whatsoever, an investigative detention requires reasonable suspicion.

Reasonable suspicion exists if 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 actually is, has been, or soon will be engaged in criminal activity.

The 4th District Court of Appeals (San Antonio) recently considered the whole consensual-encounter-or-investigative-detention issue in Parks v. State and reversed a trial court’s finding for abuse of discretion. The opinion did not make clear, and maybe that is part of the problem, whether the trial court concluded that the stop was a consensual encounter or an investigative detention. In any event, the Court of Appeals held that the facts of the case demonstrated that the stop was an investigative detention for which the officer must have had reasonable suspicion. Because the officer did not have reasonable suspicion, the fruits of his search should have been suppressed and case must be reversed. Once you read the facts, you’ll wonder how the trial court could have ever concluded that this was a consensual police encounter or that there was reasonable suspicion to justify an investigate detention. The Court of Appeals, I’m sure, did not labor long over this reversal.

Here’s what happened (taken from the Court of Appeals opinion). A police officer noticed four men walking behind a shopping center (strip mall). The officer shined his spotlight on the men and noticed that a couple of them had blue bandanas hanging from their pants.

Although the men were walking near the back doors of the businesses, the groups appeared to be walking past the location, no one appeared to be checking the doors to the businesses or the dumpsters, none of them appeared to react to his presence by changing his manner of walk, no furtive gestures or gang hand signals were notes, nothing passed among them, and the officer had no information that any of the group had a criminal record or was a gang member. The only factual circumstance the State appears to rely on to show reasonable suspicion is the presence of the blue rags.

There was also no testimony that the clothing that the men wore was emblematic of any gang membership. The officer drove over to the individuals, and in an authoritative tone asked them to place their hands on the car. The appellant took two steps back and looked around, so the officer repeated his request. The officer then frisked appellant and found a gun in one of his pockets.

This should have been a no-brainer for the trial court, but apparently an officer’s hunch is good enough for some trial judges. Who needs specific, articulable facts, when we can simply rely on the officer’s experience and intuition? The law does. Accordingly, the Court of Appeals reversed the conviction and remanded the case back to the trial court.

Based on this case, I also take back what I said about the San Antonio Court Appeals in this previous POST, when I jested that the Reasonable Suspicion standard was all but dead in San Antonio.  Thanks for proving me wrong.

"Come Over Here and Talk to Me"

Crain v. State - (Tex. Crim. App.) June 30, 2010.

Police officer drives up next to a "suspicious-looking" pedestrian and says "Come over here and talk to me."  At trial, of course, the officer testifies that:

had the [suspect] refused to talk to him, he would have let the [suspect] go, as he had not observed the [suspect] do anything that could be construed as criminal activity.

When the suspect "voluntarily" spoke with the officers, they smelled an odor of recently-smoked marijuana on the him.  Believing the suspect to be in possession of marijuana, the officer placed the suspect's hands behind his back and patted him down.  Note:  The suspect was not under arrest yet.  During the pat-down search, the officers discovered a firearm tucked into the suspect's belt, but no drugs or other contraband.

At trial, the defendant moved to suppress the firearm, arguing that the interaction with the police officers was an unlawful investigative detention for which the officer did not have reasonable suspicion.  The trial court found the interaction to be a consensual encounter that did not require any level of suspicion and denied the suppression motion.  Appellant was convicted of unlawful possession of a firearm.

The 7th District Court of Appeals (Amarillo), affirmed, holding that the officer's conduct would not have communicated to a reasonable person that the appellant was not free to decline the officer's request and terminate the encounter.  Chief Justice Quinn dissented, concluding that, under the circumstances, the stop was a detention rather than a mere encounter.

In a 6-3 opinion, the CCA reversed the 7th Court.  Citing the dissent from the lower court, the CCA Judge Price emphasized:

As stated in Justice Quinn’s dissent, “[m]issing from the phrase ‘come over here and talk to me’ are words of contingency or option. That is, they are not a mere solicitation of cooperation. Nor do they extend any choice, explicit or implicit. Rather they are mandatory[.]”

Judge Cochran submitted a concurring opinion, in which she observed:

Officer Griffin testified that the exact words he used in calling to appellant were, “Come over here and talk to me.” That is a command. It is an imperative sentence.

Judges Keller and Keasler each filed dissenting opinions.  Both would have classified the interaction as a consensual encounter rather than an investigative detention.

A few months ago I posted about consensual police encounters HERE.  This case reinforces my prior opinion that "there is no such thing as a consensual police encounter."

A Good Custodial Interrogation String Cite

Everybody loves a good string cite.  You know, when the court wants to consolidate lots of authority for its position, but doesn't actually want to write about the cases, so it simply lists a string of case citations with a parenthetical one-line synopsis of the relevant holding.  In reading Campbell v. State, yesterday, a case out of the 2nd District (Fort Worth) regarding custodial versus non-custodial interrogations and Miranda warnings in a DWI context, I came across a good string cite and I thought I'd share it. 

To give some context, the court is in the process of determining whether Appellant's statements to police officers both prior to and after being placed in handcuffs should be excluded under article 38.22 of the Texas Code of Criminal Procedure or Miranda, when it provided this smattering of applicable Texas caselaw on the subject:

• Alford v. State, 22 S.W.3d 669, 671–72 (Tex. App.—Fort Worth2000, pet. ref’d) holding that appellant was in custody when he was stopped, placedon the ground, and handcuffed, and his response, that he had had six beers, whenasked if he had been drinking by an officer who arrived on the scene seven minutes later, should have been suppressed since he was not given his Miranda warnings;
• Jordy v. State, 969 S.W.2d 528, 531–32 (Tex. App.—Fort Worth 1998, no pet.) holding that appellant was subjected to a custodial interrogation following a traffic accident when he laid down on the ground and the officer called an ambulance before asking appellant how much he had had to drink, to which appellant replied,“A lot.”
• Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App.) cert. denied, 522 U.S. 894 (1997) holding that incident was temporary investigative detention when officer testified at suppression hearing that he was not arresting Rhodes when he handcuffed him and that he handcuffed him primarily out of concern for officer safety—it was dark, the area was high-crime, and officer was alone with suspect;
• Arthur v. State, 216 S.W.3d 50, 53, 57–58 (Tex. App. --Fort Worth 2007, no pet.) holding that appellant’s statements were not a product of custodial interrogation when officer saw appellant’s vehicle drifting and speeding, initiated a traffic stop and asked some questions about whether she had had anything to drink which she answered inconsistently and in a loud, moderately slurred voice and administered three sobriety tests and a portable breath test before arresting her;
• Hernandez v. State,107 S.W.3d 41, 47–48 (Tex. App.—San Antonio 2003, pet. ref’d) concluding that appellant’s statement that he had consumed nine beers was made during investigatory detention after officer saw appellant speeding and weaving between lanes without signaling, pulled him over, noticed the smell of alcohol and appellant’s bloodshot eyes, and administered three field sobriety tests, all prior to full custodial arrest;
• Wappler v. State, 104 S.W.3d 661, 668 (Tex. App.—Houston [1st Dist.]2003) concluding that it was reasonable for the officer to secure appellant in handcuffs when appellant was uncooperative and belligerent, so that officer could complete his DWI investigation, rev’d on other grounds, 138 S.W.3d 331 (Tex. Crim. App. 2004);
• Lewis v. State, 72 S.W.3d 704, 708–13 (Tex. App.—Fort Worth 2002,pet. ref’d) distinguishing Jordy and Alford as presenting “other circumstances”requiring Miranda when their facts went beyond the roadside questioning and sobriety tests found in DWI temporary investigation cases.

There you have it.  If you have a custodial interrogation issue in a DWI case, you now have a jumpstart on your legal research.  Thank you 2nd Court of Appeals.

Reasonable Suspicion Standard Exists in Name Only in San Antonio

Ask any police officer in San Antonio and I'm sure he can tell you that in order to initiate an investigatory detention, he/she must have "Reasonable Suspicion" that a person is, has been, or will soon be engaged in criminal activity.  Great, at least we know that a standard exists.  The problem, however, is the application of the legal standard to the facts of a particular case.  The problem is that "Reasonable Suspicion" is a conclusory title slapped onto any fact scenario law enforcement happens to encounter.  Well, Justice Rebecca Simmons of the 4th District Court of Appeals (San Antonio) has had enough (at least in one case she did)!

Never has this court upheld an investigative stop based on such a paucity of facts.

These the unflinching words of Justice Simmons' dissent to the Court's denial of a request for an en banc consideration in Martinez v. State.  Chief Justice Stone joined the dissent, which explained:

As a matter of law, the totality of the circumstances did not provide reasonable suspicion for the investigative stop of Martinez. ...I also believe the opinion conflicts with this court’s prior opinion in State v. Simmang, 945 S.W.2d 219 (Tex. App.—San Antonio 1997, no pet.).

Well, let's see.  What exactly was it about this reasonable suspicion stop that so ruffled the feathers of these two jurists?  As a starting point, you must remember that to support an investigative detention, the officer must point to "specific articulable facts, which, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaging in criminal activity."  Texas case law requires that these facts amount to "more than a mere hunch or suspicion."

Here's how the officer explained it at trial:

[based on an anonymous tip] dispatch put out a call that a vehicle had stopped and someone supposedly put some bicycles in the back of a pickup truck in a general area of town.  The caller was simply a passerby.  All I got from the dispatch was a vehicle description (blue Ford pickup) and a male driving the vehicle.  Dispatch repeated twice that the pickup was blue.

First of all, is it illegal to put bicycles in the back of a pickup?  Perhaps, but I put my bicycle in the back of my pickup several times a week. For the sake of argument, let's just assume that this activity is evidence of larceny.  Ok - Got it.  A blue Ford pickup, with some bicycles in the back, driven by a male.  But who did the officer stop? 

He stopped the only Ford pickup he could find in that area of town.  He stopped a male driving a GREEN pickup.  Add to that, the pickup didn't even have any bicycles in it!  And what does this investigatory detention (for a possible larceny, mind you) yield...a DWI conviction.  We can expect that the officer believes he had "reasonable suspicion" initiate the stop (an officer always thinks he has reasonable suspicion), but, as the dissent points out:

Surprisingly, this court concludes [the officer] had reasonable suspicion to stop Martinez...

I must have been traveling this winter when this opinion was released by the Court.  Thankfully, these justices highlighted the Court's questionable reasoning for us.  We'll be sure to keep our eye on this case to see what the CCA has to say.  Even our conservative and prosecution-friendly CCA might reverse this one!

A Consensual Police-Citizen Encounter - Does Such a Thing Exist?

Last week, in State v. Priddy, the 2nd District Court of Appeals (Fort Worth), explained:

The Texas Court of Criminal Appeals recognizes three categories of interactions between police officers and citizens: arrests, investigative detentions, and encounters.  Unlike an investigative detention or an arrest - each a seizure for Fourth Amendment purposes - an encounter is a consensual interaction, which the citizen may terminate at any time.

In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver's license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

Once the woman rolled down her window, however, everything changed.  Through midst of grilled onions, ground beef, and mustard, the officer detected a hint of alcohol from inside the vehicle.  Now, according to the appellate court, the "encounter" created reasonable suspicion by which the officer could initiate an investigative detention.  Of course, the ensuing investigative detention substantiated the DWI.

Here's what the Court had to say about "encounters:"

So long as the citizen remains free to disregard the officer's questions and go about his or her business, the encounter is consensual and merits no further constutional analysis.

Are you telling me that this woman could have simply waived off when the office approached her vehicle?  She could have simply refused to answer questions - refused to cooperate - and everything would be fine!?  I seriously doubt it.  I submit that if she had refused to cooperate, the officer would have used that fact (and the court would have ratified the decision) as reasonable suspicion to further detain the woman to investigate.  In my view, there was absolutely no way she could have gotten around talking to the officer.  None.

She was able to convince the trial court that the search was unreasonable, but the 2nd Court reversed.  Best of luck to Mrs. Priddy at trial.

Search of Woman's Bra Exceeds Scope of 4th Amendment

Yesterday, the 14th District Court of Appeals (Houston) designated for publication an interesting 4th Amendment case regarding the scope of a pat-down search for weapons during a Terry stop. 

In State v. Williams, an Angleton police officer executed a traffic stop of the car in which the defendant was a passenger.  During the officer's valid investigative detention, the driver of the vehicle told the officer that the defendant was in possession of a knife and that she was trying to stab the other passengers.

Texas courts have stated that "a valid investigative detention can give a police officer the ability to pat-down or frisk the suspect for weapons."  Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009).  Courts, however, have not allowed an overly broad or unlimited pat-down in these instances, and have instructed that "officer may conduct a limited search for weapons of the suspect's outer clothing" when an officer "reasonably believes that the suspect is armed and dangerous."  Balentine v. State. 71 S.W.3d 763 (Tex. Crim. App. 2002).

In this case, however, the officer did not feel comfortable patting down the suspect, due to her busty build.  As the officer testified during trial, the defendant was well-endowed - "more than average."  Therefore, rather than conducting a limited pat-down search of the defendant, the officer simply asked her to

"kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit...and manuever it."

Although she did not initially agree to this, she ultimately complied and as she wiggled and jiggled, numerous pills fell out her bra.  At her subsequent trial, she moved to suppress the illegal drugs as being fruits of an unlawful search.  The trial court granted the motion.  The14th District Court of Appeals affirmed the trial court's ruling suppressing the evidence, stating:

The permissible scope of a protective search for weapons is extremely narrow.  [The officer's] reluctance to perform a pat-down search on a female provides insufficient justification for broadening the scope of the search.  We are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any.  If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either [the officer] or the female officer could have attempted to extract the item or could have conducted a more intrusive search.  And the 'more than average' size of [the defendant's] bust, as [the officer] described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.

Justice Yates concurs (HERE).

Investigative Detention v. Arrest

Police officers remove a person from his vehicle at gunpoint, place the person on the ground, and handcuff his hands behind his back. Detention or Arrest? What follows is a short summary of this area of law, courtesy of the 7th District Court of Appeals (Amarillo).

The differences between an Investigatory Detention and an Arrest are the degrees of intrusion involved and the different legal justifications for each. The standard for distinguishing between the two is not always clear because the distinction rests on a fact-specific inquiry rather than clearly delineated criteria.

An investigative detention occurs when an officer lacks probable cause to arrest but nonetheless possesses a reasonable suspicion: that is, the officer is able to point to specific, articulable facts that, taken together with rational inferences from those facts, reasonably warrants the detention. The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring, or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to criminal activity. During an investigative detention, an officer may employ the force necessary to effect the reasonable goals of the detention: investigation, maintenance of the status quo, and officer safety. An officer may conduct a limited pat-down search of the outer clothing for weapons during an investigative detention if the officer fears for his safety or that of others.

An arrest, on the other hand, is a greater restraint upon a person's freedom to leave or move. If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect's presence during a period of investigation, this suggests the detention is an arrest. Further, in the absence of a reasonable safety concern or need to maintain the status quo, an officer's use of force to secure a suspect is typically held to constitute an arrest.


To illustrate the confusion in this area of law, look at the following list of facts and try to guess whether the court held the intrusion to be an investigative detention or an arrest:

1 - One officer approaching the driver's side of a vehicle with a rifle, while another officer approached the passenger's side of the vehicle with a gun in hand.
2 - Suspect removed from car, patted-down, and handcuffed.
3 - Suspect escorted to the patrol car and handcuffed.
4 - Car boxed-in, approached with guns drawn, suspect placed on the ground and handcuffed.
5 - Suspect handcuffed while in the backseat of the patrol car.

The answers are at the bottom of the post. Did you get them right? I didn't. The courts came down differently in these examples because of the specific fact scenarios in each. Remember, whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all the facts, as judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight.    

In some of the examples above, the officers were acting to simply protect themselves and maintain the status quo (ID), and in others they were not (Arrest). Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the number of suspects present, and the reaction of each suspect.

This post probably didn't help clarify this issue for you as it didn't for me in writing it, but it should make one thing very clear - it all depends on the facts. You need to develop that facts as much as possible in order to show that that seizure was an Arrest. Then your client will receive the due process considerations that flow from an arrest.

1. ID, 2. ID, 3. ID, 4. A, 5. A