Killing the frog one degree at a time

The other day I was leaving the Montgomery County Courthouse up in Conroe after court and noticed a state trooper behind me. As I turned onto the main drag the trooper flipped on his lights. I pulled over into a restaurant parking lot wondering why he pulled me over.

Soon I had my answer.

It turns out that the main bulb in the right taillight had burned out. I asked him if the center light was working. He said it was. He took my license and insurance and I dug through the pocket on the driver's side door for a spare bulb.

While I changed the bulb he printed out a warning and went on about his way.

I did appreciate him telling me my taillight was out - since equipment violations are an oft-used excuse to stop suspected drunk drivers. However, I was also a bit irritated since there was no equipment violation in my case. In Texas you are required to have two working taillights. Since all cars come equipped with three (one on each side and one in the middle), one can be malfunctioning and you aren't breaking the law. In other words, he had no legitimate reason to pull me over.

As I drove away my mind kept wandering back to the recent US Supreme Court case in which the Supremes upended precedent and decided that a traffic stop based on the officer's mistake of law is valid. In Heine v. North Carolina, No. 13-604 (2014), Mr. Heien was driving down the street when a law enforcement officer, Sgt. Matt Darisse of the Surrey County Sheriff's Office, stopped his car because he had a broken brake light. Of course Mr. Heien gave his consent when Sgt. Darisse asked to search the car.

Sgt. Darisse thought that Mr. Heien (who was laying down in the backseat) and Maynor Vasquez (the driver) were acting a bit suspicious so he asked to search the car after handing Mr. Vasquez a warning for the brake light. Well you don't have to be a genius to know what happened next. The search turned up a bag of cocaine. Both men were arrested.

At trial, Mr. Heien argued that the drugs should be suppressed because there was no legal basis for the traffic stop. It is (or, at least, was) well-established that a stop based on an officer's mistake of law was not reasonable, and was, therefore, illegal. Surprisingly enough the trial court didn't see it that way because, by golly, there was cocaine in the car and we must keep that shit off the streets.

On appeal the conviction was reversed because it wasn't illegal to drive a car in North Carolina with only one functioning brake light. The State Supreme Court then reversed the appellate court on the grounds that even though Sgt. Darisse was ignorant of the law, the stop was reasonable.

In an 8-1 decision, based more on looking at the outcome rather than on the process, the US Supreme Court held that a stop (or detention) based on an officer's mistake of law was, nonetheless, reasonable. So, even though we've been told for years that ignorance of the law is no defense against a criminal charge, it is, apparently, an excuse to detain someone illegally.

This decision has turned the Fourth Amendment on its side and is yet another example of how our rights are slowly being taken away from us without anyone noticing. We are the frog in the pot of water that doesn't even realize the temperature is being turned up until it's too late.

Excuses, excuses

When an officer has a hunch someone might be just a bit tipsy behind the wheel and he can't find a legal basis for the stop he tends to fall back on his "community caretaking" function.

Oh, but not so fast.

Back in 2009, two Wiley (Texas) police officers on bike patrol observed a car park on a dead end street behind a fast food restaurant. They watched as the passenger side door opened up. The officers claimed they could hear the passenger and driver talking - but they couldn't make out what they were saying.

The officers decided they had seen enough. It was time to go in for the kill. As they approached, the passenger, Ms. Alford, and the driver switched places. When the officers arrived they saw that the engine was running and the car was in gear. Ms. Alford began to pull away when one of the officers asked her if she would mind answering a couple of questions.

You can guess the rest. The officer smelled a strong odor of an alcoholic beverage and Ms. Alford admitted to drinking "four big beers." Needless to say, the officers testified that Ms. Alford failed their coordination exercises. When asked the basis of the stop, the officers said they believed Ms. Alford was in need of help.

The trial court denied Ms. Alford's motion to suppress on the grounds there was no legal basis for the stop. Oh, that nebulous community caretaking function.

On appeal, in Alford v. State, No. 05-10-00922-CR (Tex.App.--Dallas 2011), the Dallas appeals court found that there was, indeed, no legal basis for the stop. The court pointed out that in order to determine whether the officer's belief that a person needed help, it would weigh four factors:

1. the nature and level of the person's distress;
2. the location of the person;
3. whether the person was alone or had access to help; and
4. to what extent the person was a danger to himself or herself.

In Alford, the court found that none of the factors indicated Ms. Alford needed any help from the officers. Ms. Alford did not appear to be in any distress. The car was parked behind a restaurant that was open. Ms. Alford was in the car with her sister. There was no indication that Ms. Alford was a danger to anyone at the time the officers decided to approach the car.

As a result, the court reversed Ms. Alford's conviction and sent the case back to Collin County to be disposed in a manner consistent with the court's rulings.

What happened to Ms. Alford was not an isolated incident. More and more motorists find themselves being detained without probable cause - and whenever the emperor finds himself naked before the mirror his fallback position is that he thought the motorist was in some sort of danger.

This time, it didn't work.

Shooting oneself in the foot

Over the weekend, my wife and I drove up to Huntsville State Park to do some hiking for our anniversary. Along the way we stopped in Willis so she could get her caffeine fix in at Starbucks. As we drove along the feeder to enter the Kroger parking lot off FM 1087 I couldn't help but notice a car parked on the shoulder with a state trooper sitting behind it. The people in the car were standing off to the side and the doors were open.

It was about 9:30 on a Sunday morning and someone had the police tearing through their car. Under no circumstances could that be considered a good way to start the day.

After I dropped my wife in front of the Kroger's, I circled back around to the feeder to see what was happening. The trunk lid was open and a trooper was putting the spare tire back in. It was only getting worse.

I drove back around and picked up my wife. Not being one to pass up a train wreck, I drove back around to the feeder. The doors of the car were still open. Two women were standing in the grass and a third was standing with her hands cuffed behind her back at the side of the police car.

Now I have no idea what was going on. I don't know who the people involved are. I don't know why the car was stopped. I have no idea what was found in the car or why (at least) one woman was under arrest.

I do know, however, that the driver, for some unknown reason, gave her consent to the trooper's request to search her car. My only question was Why?

Why would anyone allow the police to search their car without a warrant? Why would anyone with anything illegal in the car allow the police to search it?

I can guarantee you that the officer didn't have probable cause to search that car. And how do I know, you might ask. I know because he asked to search the car.

But wait, you say, if he arrested the driver he can search the passenger compartment since the inside of the car is considered within the reach of the driver. Maybe so, but everyone was standing outside the car when it was being tossed and no one was in handcuffs. No arrest, no search.

Besides, even if the officer could search the passenger compartment incident to an arrest (just try to find that phrase in the Fourth Amendment), he can't pop open the trunk absent a warrant or consent.

If the officer had probable cause to believe that something of an illegal nature was in the car, he would have arrested the driver (and passengers) and filled out a search warrant application and affidavit. He would have presented it to a judge and, once the judge signed it, searched the car.

Law books and computer data bases are full of cases in which illegal items were found as the result of a police officer's request to search a car. In the vast majority of those cases the officer was operating on a hunch. If the officer had probable cause to search the car, he damn sure had probable cause to arrest the driver or passengers. But in (too) many of those cases, the defendant sealed his fate by allowing the officer to search his car without a warrant.

There is nothing to be gained in allowing the police to search the car. There's no award for hanging yourself by letting the police find your stash of goodies in the trunk or under the hood. The prosecutor isn't going to dump the case just because someone let the cops toss their car.

Who cares if you piss off the officer? Call the officer's bluff and, as Nancy Reagan would advise, just say no.

Legislating away your reasonable expectation of privacy

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 4th Amendment

And just what constitutes an "unreasonable" search or seizure. According to the US Supreme Court it comes down to whether one has a "reasonable expectation of privacy" in a given situation. Being in your home is different from being at the ballpark. Being in your backyard may be different than being at the zoo. Since we now have no reasonable expectation of privacy at the airport, there is no such thing as a unreasonable search (thank you, President Bush and members of Congress looking for any excuse to attack civil liberties).

And now come the zealots seeking to brand more motorists with the scarlet D. Lt. Scott Bratcher of the Dallas Police Department (apparently sending a police chief whose son shot and killed an area lawman is a faux pas) and Dallas County Commissioner Kenneth Mayfield asked the legislature to allow police to set up DWI roadblocks -- even though such measures have been defeated numerous times due to legislators' concerns about the thousands of "innocent" drivers who would be inconvenienced.

As an interesting aside, according to the Dallas Morning News, the witnesses who testified before Sen. John Whitmire's committee included law enforcement officials, judges and "victims." Apparently no one care enough to ask to hear from defense attorneys or drivers who were either acquitted or had their cases dismissed.

The police would like to do away with that pesky little requirement that they have reasonable suspicion to stop a motorist or probable cause to arrest a motorist before they can subject them to roadside calisthenics and forcible blood draws.

Bill Lewis, the head of MADD, was unmoved by concerns that roadblocks would subject motorists to unreasonable searches. According to Mr. Lewis' vision of the world, since we are already subject to being searched at airports and the state capitol, that we all should sacrifice our right to privacy and allow ourselves to be subjected to unwarranted searches and seizures while driving on the highway.

Bill Lewis of Mothers Against Drunk Driving said innocent citizens already are subjected to searches, such as when they enter the airport and, in a more recent development, at the Capitol.

"I've never tried to sneak a gun through the Capitol or an airport, but I have to go through a checkpoint," Lewis said.

Others said they would like to see No Refusal Weekends expanded so that more judges will blindly sign search warrants authorizing forcible blood draws without questioning either the need for the motorist's blood or the probable cause behind the arrest.

Hey, it's only the Fourth Amendment we're talking about here.

Roadblocks down in the bayou

The Sheriff over in Cameron Parish, Louisiana decided to set himself up a roadblock to catch all those pesky drunk drivers in Grand Lake last Friday night. His posse was made possible by a $330,000. The sheriff's office spent about $80,000 for equipment and overtime expense for that li'l ol' roadblock.

"The citizens are glad that we're taking a proactive approach to making sure the highways are safer." Chief Deputy Ron Johnson, CPSO

And what a success it was. Of the 589 vehicles stopped without either reasonable suspicion or probable cause, deputies made all of six arrests. Of those arrests, only two were for driving while intoxicated. Deputies administered coordination exercises to nine motorists -- I would assume because they smelled the devil's drink on their breath.

Listening to the newscast you would think the reporter is the spokesperson for the sheriff's office.

Judge orders courtroom spectators to submit to drug tests

Benjamin Marchet of South Carolina has filed suit in Federal Court in Tennessee alleging that Dickson County (TN) Judge Durwood Moore ordered him to submit to a urine test on a hunch that he might have been on something. Okay, judges ordering defendants to take drug tests isn't anything out of the ordinary -- and typically not violating the law is a condition of bond.

Only thing is that Mr. Marchet wasn't a defendant. He was a spectator in Judge Moore's courtroom.

In his response to Mr. Marchet's claim that the judge lacked probable cause or reasonable suspicion to order the drug test, Judge Moore defended his actions by saying it was the routine policy of his court.

Well it's also routine policy in Harris County to deny appointed counsel to anyone who is able to post bond and to deny requests for personal bonds for defendants who can't post bond. That doesn't make it right, either.

US Supreme Court says anonymous tips are not enough to justify a DWI stop

The United States Supreme Court voted 4-3 to deny review in Virginia v. Harris, a DWI case in which the Virginia State Supreme Court held that in order to justify a traffic stop based on an anonymous tip, the officer must observe dangerous driving.

In Harris, an anonymous tipster informed Richmond police that Joseph Harris was driving while intoxicated. The arresting officer, acting on this tip, stopped and arrested Mr. Harris for DWI, without observing any unsafe driving or traffic violations. Mr. Harris was convicted at trial for driving while intoxicated, but that conviction was overturned by the state Supreme Court.

In a strongly worded dissent, Justices John Roberts and Antonin Scalia decried the Court's denial of cert. Justice Roberts claimed the ruling gives drunk drivers "one free swerve" before they can be stopped legally by police. Justice Roberts continued: "It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check."

If you want difficult, Justice Roberts, try explaining to our children that we sacrificed the presumption of innocence, privacy and due process rights as well as constitutional protections for citizens in the name of public safety. Men and women have died defending those rights and protections and we gladly give them away in order to fight our bogeymen -- drunk drivers and terrorists.

It's easy to take away rights, liberties and protections for those who commit unpopular crimes and support unpopular causes -- but if we don't stand up and protect those rights now, one day we will wake up and they will be but a distant memory.

What part of no probable cause doesn't she get?

Probable cause is the level of proof needed to support an arrest decision. It is more than reasonable suspicion, but far less than a preponderance of the evidence. It is all the proof the Texas Department of Public Safety needs to suspend your driver's license if you were arrested for driving while intoxicated.

Recently I appealed an ALR suspension and got a reversal. In the order reversing the administrative license suspension, the court found that "the evidence was insufficient to establish that probable cause existed to believe that the petitioner had lost the normal use of his mental and physical faculties due to alcohol intoxication at the time of his arrest."

In other words, there wasn't probable cause to arrest my client for driving while intoxicated.

The order went on to reverse the suspension and remanded the case "for further proceedings consistent with this judgment." (Emphasis added.)

In order to suspend a driver's license when the driver declines to take a breath test, the DPS must show:

1. that reasonable suspicion to stop or probable cause to arrest the driver existed;

2. that probable cause existed that the driver was driving while intoxicated;

3. that the driver was placed under arrest and asked to submit to a breath test; and

4. that the driver declined the breath test.

The attorney for the DPS apparently had a hard time figuring out what probable cause was as she refused to dismiss the case and insisted on a rehearing - still claiming that the suspension should be upheld because the traffic stop was good. Of course the administrative law "judge" didn't seem to grasp the concept of probable cause either as he denied my motion to dismiss based on the county court's order reversing the suspension.

The deck is already stacked against citizens accused of driving while intoxicated fighting a license suspension. The problem is only compounded when the attorneys for the DPS and the administrative law "judges" can't figure out what probable cause is.

The saga continues...

Probable cause? Who needs probable cause?

Yesterday the State of Texas came one step closer to ending a 15-year old ban on DWI checkpoints with the passage of S.B. 298 which would add Chapter 65 to the Texas Code of Criminal Procedure creating DWI checkpoints in the 15 most populous counties in the state.

The bill would allow law enforcement agencies to set up temporary DWI checkpoints in counties with a population over 250,000 or in municipalities with populations of more than 500,000. The checkpoints could not be set up on limited-access highways, overpasses, bridges or causeways, or single entry or exit points from a designated area.

According to the sponsor, Sen. John Carona (R-Dallas): "The goal is not to apprehend people. The goal is to deter people."

And I'm certain that anyone stopped at one of these checkpoints who the police deem to be intoxicated will be allowed to leave with unimpaired driver or will be allowed to remain at the checkpoint until they sober up.

Of course the goal is to apprehend more citizens the police think are driving while intoxicated. I wrote before about the amount of money at stake in the DWI sweepstakes. But, in order to pass constitutional muster, the sponsors of the legislation cannot give the true purpose of the bill -- the bill only passes the sniff test if there is a public safety purpose behind the checkpoints.

Now, based on the restrictions placed in the version of the bill that passed the State Senate, the proposed checkpoints could not be set up in places such as South Padre Island, Mustang Island, Galveston, College Station, Lubbock, Waco and San Marcos. The checkpoints could be set up in Houston, Dallas, Fort Worth and San Antonio. 

The purpose is to deter conduct, yet no checkpoints can be set up in areas that make their money on Spring Breakers and vacationers or in areas in which a university is the largest institution. Talk about things that make you say "hmmmm."

Let's not kid ourselves, the real purpose of the proposed DWI checkpoints is to increase the number of DWI arrests in and around the state's major cities, to increase the amount of federal grant money local law enforcement agencies receive for DWI enforcement and to line the coffers of the DPS with more surcharge money.

With the creation of these DWI checkpoints, the police will no longer have to worry about pesky little things such as reasonable suspicion or probable cause - and don't be surprised when law enforcement begins parking trailers for blood tests at those sites. 

A little professional courtesy?

State District Judge Elizabeth Berry scored a victory in Johnson County (Texas), when the trial court ruled that blood samples taken after she was arrested for driving while intoxicated are inadmissible due to a defective warrant.

The affidavit said that after Judge Berry was stopped for driving 92 miles per hour, on Interstate-35W, officers saw eight beer bottles in the car.

The affidavit didn't say where the beer bottles were in the vehicle, if they were open or if they were hot or cold.  It did however state that Judge Berry refused sobriety tests and appeared confused and unstable, but didn't describe how the officer came to that conclusion.

The official paperwork also said that Judge Berry was, "unusually quiet due to intoxicated state."  When the affidavit was faxed to a local judge it was sent back, saying more detailed information was needed for a warrant to be issued.

After the arresting officer added that his partner said Judge Berry had the smell of an alcoholic beverage on her police were given approval to draw blood.

After reviewing all the information Thursday it was ruled that there was not enough evidence to give permission to draw blood, so the blood samples and intoxication levels are inadmissible in court.

The trial court's decision illuminates what is and what isn't probable cause to obtain a "blood" warrant in a DWI arrest.  I think it also points out that there is insufficient cause to arrest a citizen on suspicion of DWI based on a traffic violation (not noted as a "reliable indicator" of intoxication), the smell of an alcoholic beverage, the presence of alcohol in the car and a refusal to perform police coordination exercises. 

This decision provides further fuel to my advice to decline a police officer's "invitation" to perform coordination exercises at the scene and to refuse to blow into the state's breath test machine.

CRU and the assault on the Constitution

HPD's Crime Reduction Unit (CRU) is making the city safe from the likes of hardened criminals like jaywalkers and bicyclists. It's the cops' version of the lottery -- harass, cuff and search minorities and hope you find a stash of drugs in their pockets, socks or shoes.

Officers in this $5 million unit are targeting those committing Class C violations and using that as their ticket to violate their 4th Amendment rights against unreasonable search and seizure. The cops figure someone in that neighborhood is up to no good and so they create a pretext for a warrant check and a search - for without probable cause, the case won't stick.

CRU operates much the same as the DWI Task Force -- watch someone long enough and they're bound to give you a reason to stop them. Most of the DWI arrests I've dealt with weren't the result of bad driving -- they were the result of someone getting stopped for failing to signal a lane change, squealing their tires leaving an intersection and speeding. The cops know that going out on DWI duty on a weekend night near an entertainment district is like shooting fish in a barrel -- but they have to create a reason for the stop.

Combine this with courts' narrowing definition of a seizure and it adds up to an erosion of our rights as citizens. Sure, no one wants drunks driving on the streets and no one is in favor of a drug dealer setting up station across the street from them, but when we allow the State to strip the rights of those accused of unpopular crimes, we make it easier for the State to strip our own rights.

For an example look no further than the hysteria following 9/11. In the name of fighting terrorism the American people meekly stepped aside and allowed the federales to tap our phones and our e-mail, to engage in domestic espionage and the limit our freedom to travel. Our government calls al-Qaeda a bunch of savages, yet we say nothing as our government authorizes the torture and humiliation of prisoners -- including our own citizens.