More Rules of the Road: Passing on the Shoulder is A-Okay

It appears that the Texas Court of Criminal Appeals is also becoming the State’s highest traffic court.  Last week, I posted about a CCA case involving merging traffic.  This week, the CCA issued an opinion on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop v. State, the Appellant was pulled over after a police officer observed him using the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated.  At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop.  Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

     (2) to accelerate before entering the main traveled lane of traffic;

     (3) to decelerate before making a right turn;

     (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

     (5) to allow another vehicle traveling faster to pass;

     (6) as permitted or required by an official traffic-control device; or

     (7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI.  The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely.  Merely driving on an improved shoulder is not prima facie evidence of an offense.  Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred. 

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.  So there you have it - traffic lesson number two from the CCA this month.  You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

Judge Johnson concurred, noting that driving on the right should at or near a railroad crossing is typically unwise.

Lane Ends, Merge Left

Back in 2010, I posted about Mahaffey v. State, a case in which the CCA directed the 12 District Court of Appeals (Tyler) to determine whether a "lane merge" is a "turn" under the Texas Transportation Code, such that it requires a driver to signal.  If a "merge" does not require a turn signal (as the appellant failed to do in this case), then the police stop was improper (without reasonable suspicion) and the evidence of his DWI gained from the stop should have been suppressed.

The 12th Court took another look at the case and once again determined that a "merge" was a "turn" and thus required a turn signal.  Apparently, the 12th Court did not get the CCA's hint the first time around.

In a 5-3 opinion (HERE) with Judge Meyers concurring, the CCA reversed (again), holding:

We disagree with the State's contention that the termination of a lane does not affect whether a driver changes lanes under the signal statute.  As a practical matter, "changing lanes" requires the existence of more than one lane: In order to change lanes from Lane A to Lane B, Lane A must exist.  Appellant did not change lanes.  The two lanes became one. ...[N]o signal is required when two lanes become one. 

Presiding Judge Keller dissented and was joined by Judges Price and Keasler.  She would hold that because Appellant's lane ended, he had to change lanes, and that changing lanes requires a turn signal.

Well, it looks like logic prevailed in this one.  You cannot change lanes if there is only one lane in which to drive.  The majority got it right here.  No signal is required for a lane merge.  Remember that if a police officer tries to pull you over for failing to signal.

Reasonable Suspicion for Traveling Below the Speed Limit?

Delafuente v. State (14th Court of Appeals) April 3, 2012

I observed a traffic congestion in the inside westbound lane [on Interstate 10 in Waller County].  Traffic volume was moderate.  I inspected further and observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie limit of 65 miles per hour and Impeding Traffic.  I paced the vehicle, which was traveling at approximately 52 miles per hour . . . . I initiated a traffic stop of the vehicle.

This traffic stop led to the search of the vehicle and the seizure of marijuana.  The driver of the vehicle was later convicted of Class B misdemeanor possession of marijuana.  The primary question on appeal to the 14th District Court of Appeals (Houston) was whether a vehicle traveling 13 miles an hour below the posted speed limit necessarily creates reasonable suspicion to initiate a traffic stop.

The appellate court explained:

Under Texas law, a vehicle “may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” Tex. Transp. Code § 545.363(a). “Slow driving, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded.” Tex. Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.).

Noting that the only evidence at trial on this issue was the police officer’s report which contains a conclusory statement that appellant was “impeding traffic,” but no articulable facts (other than the speed of his vehicle), the court held that the trial court erred in denying appellant’s motion to suppress.

The dissent believed that there were enough facts in the record to support the stop, and would have upheld the trial court’s ruling.

Analysis: While traveling below the speed limit may indeed be enough to get you pulled over, the officer must indicate, either in his report or on the stand at trial, what specific articulable facts led to the reasonable suspicion that you were “impeding traffic” such that his stop was justified. Short of that, it is an unreasonable stop under that law.

The District and County Attorney’s Association was not too pleased with this opinion. Here is its analysis:

This is the kind of decision that drives me crazy. The officer testified that the defendant was “impeding traffic” based upon his slower speed. The trial court found and ruled in his favor. Should not the trial court’s ruling be upheld? Unfortunately, this holding is line with a similar decision of the Court of Criminal Appeals in which the court held that the State failed to prove that a defendant committed a traffic violation of following too closely because all that the officer testified was that the defendant was following too closely. I suppose that when an officer testifies that the defendant was “impeding traffic,” you should then ask the officer, “In what observable way was the defendant impeding traffic?” Were cars having to constantly go around him? Were they honking? Still, a trial court’s ruling should be upheld if it is supported by the record. Maybe the Court of Criminal Appeals will review this decision, especially since there is a dissenting opinion.

"There They Are Right There!" - A Defective Terry Stop

The propriety of a Terry stop (a.k.a. investigative detention) can be, and often is, a hotly contested issue during pre-trial suppression hearings and on appeal.  I've written about the legal standard required for a Terry stop many times, but one can never get enough Terry law, so here it is again, complete with case citations, as recited by the 2nd District Court of Appeals (Fort Worth):

A temporary or investigative detention is a seizure.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d).  An investigative detention occurs when an individual is encountered by a police officer, yields to the officer‘s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Because an investigative detention is a seizure, reasonable suspicion must be shown by the officer to justify the seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492.  "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 2011 WL 2555712, at *2.  Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

In State v. Kerwick, a recent case designated for publication by the 2nd COA, the Court was called upon to consider whether the trial court abused its discretion when it suppressed the evidence of a defendant's warrantless arrest.  The arresting officer had been dispatched to the Stockyards after a brawl was reported outside a bar.  When he arrived, an unidentified person pointed at a group of people in a car and said "There they are right there."  The car was pulling away when the officer approached on foot and ordered the driver to stop.  The driver was later arrested for DWI.

The Court of Appeals agreed with the trial court (or at least found that the ruling was not outside the reasonable zone of disagreement) that the officer did not have "reasonable suspicion" to justify the Terry stop when the only facts he had were that a brawl was reported and an unidentified person said "There they are."

While I agree that the officer did not have reasonable suspicion to justify the stop in this case, I think this case really hinged on the trial court's initial ruling.  The standard of review (abuse of discretion - outside the zone of reasonable disagreement) is very deferential and had the trial court ruled for the State, it would not be hard to imagine the appellate court upholding that ruling as well (with the exact same facts).  Perhaps an obvious observation on my part.

Show Me Your Green Card

In United States v. Soto, a case decided last month, the 5th Circuit Court of Appeals (Federal) affirmed appellant's conviction for unlawfully transporting an illegal alien.  The court admitted that this was a close case, but ultimately affirmed the ruling of the trial court denying the appellant's motion to suppress.

Facts:  Upon seeing Border Patrol agents, a passenger in appellant's vehicle, exhibited a look of shock and immediately ducked down and slumped back, out of the agents’ sight. (The Court held that the only plausible explanation for this behavior is that the passender was attempting to hide from the agents.)  Adding to the agents’ suspicion, when they pulled up alongside appellant's vehicle, the passenger's darkly tinted rear window, which was halfway down when the agents first saw it, had been completely rolled up.  Finally, the agents made their observations sixty miles from the border on a route known for illegal alien trafficking.
The 5th Circuit applied the Supreme Court standard for resonable suspicion that was laid out in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), wherein the Court held,

factors that may be considered in determining reasonable suspicion include: (1) the area’s proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior.

Explaining that no single factor is determinative in this test, the court held that under the totality of the circumstances, the court held that the conduct witnessed by the Border Patrol agents was sufficient to create reasonable suspicion of illegal activity to justify the traffic stop.

Perpetuating the Fiction of the Consensual Police Encounter

In a case released yesterday from the Texas Court of Criminal Appeals (State v. Castleberry), the CCA went to great lengths to defend and perpetuate the fiction of the “consensual police encounter.”

In Castleberry, the defendant and a friend were walking behind an Uncle Julio’s restaurant in Dallas. They were not engaged in and did not appear likely to engage in criminal conduct. A Dallas police officer approached them and asked for identification. The defendant reached for his waistband. The police officer then ordered appellant to place his hands in the air. The defendant grabbed a baggy of cocaine from his waistband and tossed it on the ground. The trial court suppressed the cocaine, reasoning that the officer did not have “reasonable suspicion” to justify the stop. The 5th District Court of Appeals agreed.

The CCA, on the other hand, held that the lower courts applied the wrong legal standard and characterized the stop as a “consensual police encounter.” Writing for the majority, Judge Keasler, stated:

Even if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that a citizen complied with the request does not negate the consensual nature of the encounter…We conclude that a reasonable person in [the defendant’s] position would have felt free to decline [the officer’s] request for identification and information.

The obvious question then becomes, what would the CCA preferred the defendant to do? “No, thanks officer, I prefer not to provide any identification or tell you what I am doing. Thank you. Have a nice night.” Had the appellant said that, there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here.

The opinion goes on to suggest police officers (even when they are in uniform) are just like any average citizen.

Because an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the officer’s]conduct shows that the interaction was a consensual encounter.

Ultimately, the CCA reasons that because the defendant could have been reaching for a weapon when he reached into his waistband, the officer’s further pat-down search was justified under Terry.

The CCA concludes:

The Court of Appeals failed to separate [the encounter] into two distinct parts: (1) [The officer’s] initial approach of [the defendant], which was a consensual encounter; and (2) [The defendant’s] act of reaching for his waistband, which provided [the officer] with reasonable suspicion to detain and frisk [the defendant]. We therefore reverse the court of appeals’s judgment, hold the seized contraband to be admissible, and remand the cause to the trial court.

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.

Anonymous Payphone Call Creates "Reasonable Suspicion"

U.S. v. Gomez, United States Court of Appeals for the Fifth Circuit (released Oct. 7, 2010)

In Gomez, the Federal Fifth Circuit Court of Appeals looked at whether an anonymous call (from a payphone) can create "reasonable suspicion" sufficient to justify a traffic stop.  Under Terry v. Ohio, 392 U.S. 1 (1968), “police officers may stop and briefly detain an individual for investigative purposes if they have reasonable suspicion that criminal activity is afoot.”  When the officers conducting the stop act without a warrant, the Government bears the burden of proving reasonable suspicion.

In this case, the Court identified the factors that must be considered in deciding whether a tip provides reasonable suspicion to support a traffic stop, which include:

(1) the credibility and reliability of the informant;
(2) the specificity of the information contained in the tip or report;
(3) the extent to which the information in the tip or report can be verified by officers in the field; and
(4) whether the tip or report concerns active or recent activity.

The Court held that the 9-1-1 call in this case satisfied three of the four factors.  Specifically, the caller provided an extraordinary amount of detail regarding the suspect brandishing a pistol, to include: the color of the weapon, the location of the crime, details about the suspect’s race, age and weight, the make, model, and license plate number of the suspect’s vehicle, and the race and gender of the other passengers in the vehicle. Officers were subsequently able to verify a number of these claims, to include: all of the vehicle information, the race and gender of the other passengers, and to an extent, the location, as the car was stopped heading away from the scene of the crime a few minutes after the 9-1-1 call.

As to the remaining factor, the caller gave his name, phone number and address to the 9-1-1 operator. Although the address and phone number led to a pay phone, the court held that the officers reasonably believed that they were acting on a credible and reliable tip from a verifiable source rather than an "anonymous tip." The court noted that even if the caller were to be considered an “anonymous tipster” the officers still had reasonable suspicion to support the traffic stop based on the strength of the other 3 factors.

"Community Caretaker" Makes Unlawful DWI Arrest

In Cherokee County, Texas, a small white pickup truck "was not seen violating any traffic law or exhibiting any signs that the driver was intoxicated or otherwise in distress, when [a police officer] saw, followed, and ultimately stopped it."  According to the officer, he stopped the vehicle "to check his current state, his welfare, [and] to make sure he is okay."  After all, he had recently received a call reporting an elderly driver passed out behind the wheel of a similar vehicle in a neighboring part of town.  In checking the driver's welfare, wouldn't you know it, the officer observed signs of intoxication and arrested the driver.

At the driver's subsequent trial for DWI, he moved to suppress the evidence obtained at the stop, complaining that the officer lacked probable cause or reasonable suspicion.  As the 6th District Court of Appeals (Texarkana) explained, however, probable cause may not have been required if the officer was exercising a "community caretaker" function.

In certain circumstances, a police officer may reasonably seize an individual through the exercise of the community caretaking function even without reasonable suspicion or probable cause that an offense has been committed.  As part of an officer’s duty to serve and protect, an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  This exception to the warrant requirement has narrow applicability.  The community caretaking exception cannot be used if the officer is primarily motivated by a different purpose, such as law enforcement.

The problem in this case, as the Court points out, was that the driver did not objectively appear to be in distress, nor did he objectively appear to pose a danger to himself or others.  Accordingly, the Court held that the narrow community caretaker exception did not justify the officer's stop and thus, the driver's Fourth Amendment rights were violated.

See Travis v. State

Rules of the Road: CCA Opines on the Turn Signal Requirement

A recent Texas Court of Criminal Appeals opinion assures us that the CCA considers no issue too-small in the Texas criminal law landscape.  I did somewhat of a double-take when I read the issue presented in Mahaffey v. State:  

Is merging without using a signal a traffic violation under the Texas Transportation Code?

Why does that matter, you ask?  Because Appellant was arrested for DWI after an officer pulled him over for failing to signal when he merged into the left lane as his traffic lane was ending.  If a "merge" does not, in fact, require a signal, then there was no legal basis for the stop and the evidence of DWI should have been suppressed at the trial court.

The lower court (12th Court - Tyler) held that a "merge" is a "turn" and as such, requires a signal under the Texas Transportation Code section 545.103.  The CCA disagreed, stating:

the Tyler court’s holding in this case leads to an absurd result: a requirement that a driver must signal any movement that is not a perfectly straight trajectory. 

Nowhere does the [Texas Driver's Handbook] say that a driver must signal when a lane merges into another lane.

Accordingly, the CCA remanded the case back to the 12th Court to determing whether a "merge" (not a turn) requires a signal.

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!

Ignorance of the Law - a Defense for Cops

So we all know that a person can (for the most part) be arrested for, charged with, and convicted under a law he didn't even know existed.  We've heard the unapologetic phrase since our first criminal law course in law school - "Ignorance of the law is no defense."  If we, as a society, accept this precept of criminal law as it relates to defendants, what then should we expect from our law enforcement officers?

To be more specific, should we expect cops to be knowledgeable of the law? Can we allow our police officers to make arrests or detain citizens for laws that do not exist or laws that have been repealed?  I should hope not! Unfortunately, however, as the 11th District Court of Appeals (Eastland) explained last week in State v. Clark:

There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.

Here's what happened.  At 3:20 AM near a residential area of Abilene, an officer observed a vehicle performing "an exhibition of acceleration."  You know, revving the engine, spinning the tires, but going nowhere - the sort of thing that makes a lot of racket.  The officer stopped the vehicle on account of the "exhibition of acceleration" and ultimately arrested the driver for DWI.

The driver moved to suppress the evidence of DWI by challenging the reasonableness of the stop under section 545.420 of the Texas Transportation Code.  This section  prohibits excessive exhibitions of acceleration, but only when the driver is engaged in a street race against another vehicle.  So, essentially, the cop got it wrong.  Finding that the officer erroneously "stopped the vehicle for exhibition of acceleration" and finding that the "vehicle was not in competition or racing any other vehicle," the trial judge suppressed the evidence.

On appeal, the State urged a new theory to justify the stop - Abilene Municipal Code Sectoin 18-153, which prohibits disturbances by a motor vehicle.  Although, from the record, the officer was completely unaware of this provision when he formed "reasonable suspicion" to execute the stop, why should that hinder the State?  After all, the ends justify the means, right?  Holding that "[t]here need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant," the 11th Court reversed the ruling of the trial court. 

The truly disturbing part of this case, aside from the reaffirmation that cops need not be informed of the law and that, in Texas, the ends justify the means, was the bait and switch that the appellate court pulled on the defendant.  After finding that the Abiliene Municipal Code section (of which the officer was unaware) justified the stop, the court refused to entertain a challenge by the defendant to the constiutionality of the section, stating:

He did not present this challenge to the constitutionality of Section 18-153 at the trial court level.  Because section 18-153 of the Abilene Municipal Code constitutes the objective basis for the stop of Clark, not the basis for his prosecution, his claim to its constitutionality was not preserved and may not be presented for the first time on appeal.

Seriously?  How could we expect him to present his challenge at the lower level when the municipal code section was not in issue? 

It's truly a scary notion that our law enforcement officers can simply stop us for virtually anything so long as our prosecutors can later justify the stop.  They say, "ignorance of the law is no defense."  That phrase has no application for cops.

Another Questionable DWI Case Affirmed in the 2nd District Court of Appeals

It seems like just yesterday I just wrote a post about the 2nd Court of Appeals affirming a DWI case despite legal or factual flaws.  No, it was today.

In the Tarrant County war against DWI, the Court affirmed Reed v. State, a case in which Appellant pled guilty after the trial court denied her motion to suppress evidence obtained from the traffic stop based on lack of reasonable suspicion for the stop.  In its findings of fact supporting the denial of the motion, the trial court noted:

• There was no traffic violation under Section545.060(a) [of the] Transportation Code. 
• There is no evidence that the Defendant’s failure to drive in a single lane was unsafe. 
• The use of the turn signal was not done in an illegal manner. 
• Defendant was not weaving within the lane.
• There was very light traffic on the highway.
• The driver made no erratic speed changes.
• Driver stayed within the speed limit.

Sounds like anyone could be stopped for DWI if an officer has reasonable suspicion based on this.  Once again Justice Dauphinot, the lone dissenter, is the voice of logic and reason.  While praising the professionalism of the officer, Justice Dauphinot states:

Officer Miller testified that he pulled Appellant over because he saw her commit a traffic violation. But he was mistaken. What he observed was not a violation of the law. As this court has previously explained, reasonable suspicion of an alleged traffic violation cannot be based on a police officer’s mistaken understanding of traffic laws.The detention cannot be justified by the fruits of the detention. 

This case is a quick read (HERE) if you have the time, and there are many more interesting nuances that I have not included.  A troubling case indeed for the rights of Tarrant County drivers.

Reasonable Suspicion Standard is Alive and Well in the 7th Court of Appeals - Whew!

The 7th District Court of Appeals just reversed and remanded the case of Gonzalez-Gilando v. State, NO. 07-09-0290-CR, because the officers lacked reasonable suspicion to make the stop (wherein the drugs were discovered) and it is easy to see why.

The troopers testified that they grew suspicious because:

1. The vehicle was clean (lacked road grime);
2. The young occupants did not "fit" the year and model of the vehicle ('99 Lumina);
3. The occupants should have been in a sportier car;
4. Both occupants looked away as the vehicles met and passed;
5. The occupants turned their hats around after the cars passed;
6. The car slowed to almost a complete stop at a blinking caution light adjacent to an intersection;
7. The driver drove within the speed limit.

Can you believe that!  That was the best "reasonable suspicion" that they could come up with!  You would think that with time to prepare, they could have come up with something better than that!

The Court summed it up best:

It is not a crime in this State to drive a clean car, look away from passing police officers, drive a vehicle of one's choice, obey traffic warnings, and abide by posted speed limits.