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.

SCOTUS has one more for the road

Lorenzo and Jose Navarette were minding their own business driving a truck down the highway with 30 pounds of marijuana in the bed of the truck. At some point an anonymous driver called 911 and reported that the Navarette's truck had almost run her off the road. The 911  message was relayed to sheriff's deputies in Humboldt County who stopped the truck - after following it for some five minutes without observing any suspicious driving behavior.

The officers, naturally suspecting that Mr. Navarette was driving while intoxicated in the middle of the afternoon detained the brothers so they could conduct a DWI investigation. During the course of the investigation they came across the stash of weed in the back of the truck. The stop quickly changed course from a DWI investigation into a felony dope investigation.

At trial the court denied the Navarette's motion to suppress the marijuana and the brothers pled guilty and received 90 days in jail plus three years probation.

Now let's make certain we have a couple of the pertinent facts straight. First, the motorist who called 911 never left her name. Second, the anonymous driver never said she thought Mr. Navarette was intoxicated - only that he almost ran his or her car off the road.

On appeal the appellate court determined that there was sufficient corroboration in the fact that the police located the truck near the area the anonymous caller told them it was and that the anonymous caller got the license plate number correct. The appellate court then made the leap of logic that the driving behavior described by the unidentified 911 caller rose to the level of reasonable suspicion.

Of course we know what really drove the appellate court's decision-making process: the defendants had dark skin, funny names and a whole lot of weed in the truck. It was yet another example of courts making rulings based on the outcome and not the process.

Yesterday the US Supreme Court handed down its opinion in Navarette v. California, 572 US _____ (2014). And, not surprisingly, held that the stop met constitutional muster because the information provided by a caller who remains nameless was somehow corroborated when the officer saw the truck on the highway and because the driving behavior just screamed out that Mr. Navarette was intoxicated.

The Court went on to say that the fact that the call was made so near the time of the alleged driving behavior (according to the unnamed motorist) indicated that our Friend With No Name hadn't had sufficient time to make up the story. It just had to be true.

The decision is yet another broadside blow to what remains of the Fourth Amendment. It is also part of a line of cases that make a mockery out of a defendant's right to confront the witnesses against him. When was Mr. Navarette permitted to cross-examine the nameless caller? When was he allowed to probe for reasons the driver might make up, or exaggerate, an incident on the road? The officer certainly couldn't testify as to what driving behavior he witnessed that made it apparent that Mr. Navarette was intoxicated.

Justice Antonin Scalia summed it up best in his vigorous dissent:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s. 

Court holds that reasonable suspicion cannot be developed retroactively

Can the police develop reasonable suspicion to make a traffic stop after the fact? When put that way, the obvious answer is no. If reasonable suspicion is required to make a traffic stop, one either has it at the time of the stop or doesn't.

But, to the courts, it wasn't such an obvious answer. At least before the Texas Court of Criminal Appeals issued its ruling in Martinez v. State, Nos. PD-1238-10 and PD-1239-10 (2011).

Police in Del Rio, Texas were notified by an anonymous caller that someone was acting suspicious and  had put two bikes in the back of a blue pickup. Officer Hurley spotted a pickup that looked blue and began following it. After following the truck for four blocks, and not seeing any traffic violation, Officer Hurley stopped the truck.

When he walked up to the truck, the officer noticed two bikes in the bed. Upon contacting the Mr. Martinez, Officer Hurley noted a strong odor of alcohol and glassy eyes. To no one's surprise, Mr. Martinez was arrested for driving while intoxicated. To make matters worse, Officer Hurley also found a usable amount of marijuana after the DWI arrest.

Mr. Martinez filed a motion to suppress the stop, arguing that there was insufficient basis to stop his truck since the caller was never identified. He also argued that Officer Hurley lacked reasonable suspicion to make the stop. The trial court denied his motion and Mr. Martinez pled guilty to both charges. The Court of Appeals upheld the trial court's ruling.

The Court of Criminal Appeals then ruled that the officer lacked reasonable suspicion to make the stop. While the caller was never identified, she did appear at the scene following the traffic stop. However, the basis of the stop must be determined by the facts at the time of the stop, not by what the officer learns after making the stop. In this case, the officer had a tip from an anonymous caller. He never observed a traffic violation. He didn't find the bikes in the truck until after he made the stop. But for the illegal stop, he never would have noted any signs of intoxication; and, he never would have discovered marijuana in the truck but for the DWI arrest. In other words, in order to effect a traffic stop, the police must have specific articulable facts indicating that criminal activity is afoot before making the traffic stop. Any reasonable suspicion developed after the stop cannot be used to justify the stop in the first place.

The Court of Criminal Appeals reversed the conviction and remanded the case for further proceedings.

Texas court lowers the standard for reasonable suspicion

Over the years court have continually lowered the standard by which a police officer may intrude upon the liberty of an individual. A law enforcement officer in Texas can stop a motorist on what the law calls "reasonable suspicion." A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot.

If the officer can't do it, then there was no reasonable suspicion and the stop is deemed illegal.

Well, at least that's the way we learned it.

According to the Texas Court of Criminal Affirms Appeals, a person's strange, non-criminal behavior, can give rise to reasonable suspicion that he would soon engage in a criminal act.

In Derichsweiller v. State, No. PD-0176-10, (Tex.Crim.App. 2011), an officer was called out to a Wal-Mart parking lot after a couple in the McDonald's drive-thru called 911 about a man who drove up alongside their car and grinned at them. He drove around the restaurant and stopped and grinned a second time before driving off into the Wal-Mart parking lot.

There were no allegations that Mr. Derichsweiller was doing anything illegal -- just weird. The officer stopped Mr. Derichsweiller while he was circling the Wal-Mart parking lot. The officer didn't witness Mr. Derichsweiller doing anything remotely illegal. Of course after he stopped him, the officer noted a strong odor of alcohol and then commenced a DWI investigation. And Mr. Derichsweiller had two prior DWI convictions.

The trial court found no problem with the stop and denied Mr. Derichsweiller's motion to suppress. The Court of Appeals, on the other hand, had a problem with the stop and reversed the trial court on the grounds that neither the officer, nor the couple at the restaurant, witnessed any behavior that suggested Mr. Derichsweiller was involved in criminal conduct.

The Court of Criminal Appeals disagreed and stated that

[w]hile it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant's conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability--a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.

So now what does "reasonable suspicion" even mean? Does it mean anything? Sure, Mr. Derichsweiller's behavior was bizarre, to say the least, but does it follow that bizarre behavior now gives rise to reasonable suspicion that someone is about to commit a crime?

Reasonable suspicion of what? The facts pointed to no criminal offense. The officer's observations of Mr. Derichsweiller's driving pointed to no criminal offense. It would appear that the court's decision had more to do with finding a way to uphold a felony DWI conviction than upholding the Constitution.

Judge's injunction doesn't address the motive behind Arizona's immigration law

Judge Bolton's decision to enjoin the State of Arizona from enforcing provisions of SB1070 is a step in the right direction but it is not nearly the victory that some immigration advocates are proclaiming. The injunction halts the requirement that law enforcement officers check a person's immigration status while enforcing other laws. The injunction also means that immigrants are no longer required to carry their immigration papers with them and that undocumented workers are permitted to seek employment in public places.

The ruling, however, does not strike down the law.

To obtain an injunction, a party must show a court that he would be irreparably harmed if the injunction weren't granted and that he was likely to prevail on the merits of the case. But likely to prevail isn't the same thing as will prevail. In this instance the federal government demonstrated to Judge Bolton that it would be harmed due to enforcement costs.

It's good that the police have been enjoined from enforcing the more onerous sections of the law, but the law itself is still on the books. Not only that, but the attitudes among those in power in Arizona are still intact and they will continue to fight for SB1070 to the death. They will seek to destroy one of the bases of our justice system -- the presumption of innocence.

For you see, SB1070 creates the presumption that anyone who isn't white is breaking the law and as long as SB1070 remains on the books - even if neutered - the presumption of innocence is violated.

See also:

"Liberty wins in SB 1070 injunction," Tucson Citizen, July 28, 2010

"Arizona immigration law: Key parts halted by judge," azcentral.com, July 28, 2010

"Why Judge Susan Bolton blocked key parts of Arizona's SB1070," Christian Science Monitor, July 28, 2010

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.

Add DWH to the Arizona penal code

There is a new crime on the books in Arizona and it's called Driving While Hispanic. With the passage of SB 1070, law enforcement officials will have the authority to check on the immigration status of any motorist who is detained as the result of "any lawful contact."

According to the new law "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."

Backers of the new law see no problem with that provision. They will point out that the police can't just stop anyone for the express purpose of checking their papers because there has to be a legal reason for the traffic stop. Would that be like a DWI stop in Texas in which the basis for the detention is an equipment violation and not evidence that the motorist is endangering anyone on the road?

Furthermore, what exactly constitutes "reasonable suspicion" that a person is not here with the blessing of los federales? Brown skin? Speaks Spanish? Has a last name ending in Z? Do you think the police will be asking too many white, black or Asian drivers for proof of their immigration status? Hell, I don't possess a single piece of paper (except for my passport that sits in a safe deposit box) that says it's okay for me to be here -- and I've been here all my life.

And then there's this gem:

"If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or assessment of any fine that is imposed, the alien shall be transferred immediately to the custody of the United States Immigration and Customs Enforcement or the United States Customs and Border Protection." -- Arizona's SB 1070

That means a conviction for a moving violation, such as speeding, or a conviction for an equipment violation, such as an expired inspection sticker, can get you deported. How's that for a final solution? It must warm your heart to see these so-called pro-family right wing Republicans force American citizens (don't kid yourselves, the children of "illegal" immigrants born on American soil are just as American as your and I) to choose between living here and going "home" to a country they've never seen.

Despite what the apologists for Arizona's new racist law claim, if you have brown skin and you're driving in Arizona, you are a target.

See also:

"Pima County Sheriff refuses to enforce "unconstitutional" controversial AZ anti-immigrant law," Democracy Now! (May 6, 2010)
"Dozens show up at Minute Maid Park to protest Arizona law," The Houston Chronicle (May 6, 2010) -- of course no one goes to see the Astros these days.
"Holder: US may fight Arizona immigration law," CBS News (April 27, 2010)

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.

You might hold off on going through the car wash

I was reading an offense report for a case down in South Texas the other day in which an ordinary traffic stop turned into an arrest for possession with intent to deliver a controlled substance. Among the "suspicious" behaviors that led the state trooper to believe the motorist was involved in some type of criminal activity was this gem:

"The vehicle appeared to be freshly cleaned and detailed."

So, if you're traveling down to the Valley, hold off on washing that car.

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. 

Significant decisions by the Courts of Appeal, October 2008

An officer need not observe a suspected intoxicated driver actually drive

In a pair of decisions, the First Court of Appeals in Houston and the Sixth Court of Appeals in Texarkana held that a police officer has reasonable suspicion to detain a driver without having seen that driver exhibit any signs of intoxication based solely on another citizen calling 911 to report an intoxicated driver.

In Villareal v. State, 2008 Tex.App.LEXIS 7230 (Tex.App.--Houston [1st] 2008), the Court held a citizen's tip bearing "sufficient indicia of reliability" is enough for an officer to make a stop according to Terry v. Ohio, 392 US 1 (1968).  In Villareal, Officer Coppedge of the Pasadena Police Department relied upon a call from another driver who reported that Ms. Villareal was drifting and swerving.  The other driver identified himself and Ms. Villareal's car and even informed the police that Ms. Villareal had pulled into a parking lot.  Officer Coppedge detained Ms. Villareal in the parking lot and, based on his observations, placed her under arrest for driving while intoxicated.

In Pospisil v. State, 2008 Tex.App.LEXIS 7564 (Tex.App.--Texarkana, 2008), the Court held that a police officer may rely on information received from another citizen provided that information is can be corroborated by other facts within the officer's knowledge.  The Court further held that a citizen's tip holds greater weight when the reporting citizen description provides a detailed description of the act, is gathered from direct observation and when the citizen puts himself in a position to be held accountable (i.e. provides his name, occupation, address, etc.).  The Court went on further to state that because the citizen was a firefighter that his word was entitled to be trusted. 

Beware the statutory warning

In Bergner v. State, 2008 Tex.App.LEXIS 8268 (Tex.App.--Fort Worth, 2008), the Court held that in order to show that one was coerced into providing a breath specimen, the accused must show that his consent was the result of physical or psychological pressure from the police.  Ms. Bergner was arrested for driving while intoxicated and transported to the station to provide a breath specimen.  After the officer read the statutory warning form (DIC-24), Ms. Bergner decided to blow into the breath test machine.  After the officer left the room, Ms. Bergner used her cell phone to call a friend who advised her not to blow.  When the officer returned, Ms. Bergner asked him what would happen if she refused to blow.  The officer told her she would go to jail.

As a result of her testimony that she consented to the breath test before the officer added the threat of jail for refusing to blow, the Court held that the additional threat of jail was not coercive and upheld the conviction.  (Ms. Bergner blew 0.85 and 0.89.)

Interestingly enough, there was nothing in the Court's opinion regarding possible interference with the intoxilyzer caused by the cell phone and nothing about Ms. Bergner having a cell phone on her person while in custody.

A citizen's refusal to perform field sobriety exercises can be considered a sign of intoxication (So much for the 5th Amendment)

In Sanchez v. State, 2008 Tex.App.LEXIS 7976 (Tex.App.--Houston [14th], 2008), the Court upheld a conviction for driving while intoxicated without any bad driving facts, field sobriety tests or breath test result.  Officer Felton, a five-year veteran, stopped Mr. Sanchez for speeding (22 miles over the speed limit).  After approaching Mr. Sanchez, Officer Felton noticed Mr. Sanchez had an odor of alcohol on his breath and had red, glossy eyes.  Mr. Sanchez also admitted to consuming a couple of beers that evening.  Mr. Sanchez refused to perform any field sobriety tests and also refused to blow into the state's breath test machine or sign the statutory warning form (DIC-24).  The officer testified that he believed Mr. Sanchez had lost the normal use of his mental and physical faculties and was driving in a unsafe manner.  He testified that, in his opinion, Mr. Sanchez was intoxicated.

So, despite the fact that Officer Felton did not observe any of the clues of impaired driving as described in the NHTSA training manual, and despite the fact that Officer Felton did not complete the pre-arrest screening as described in the NHTSA training manual, the Court upheld a conviction based solely upon Officer Felton's opinion that Mr. Sanchez was intoxicated.

No fishing expeditions

Although not a DWI case, Pierce v. State, 2008 Tex.App.LEXIS 6627 (Tex.App.--Dallas, 2008) lays out the proposition that a police officer may not prolong a traffic stop any longer than necessary given the reasonable suspicion for the stop.  Mr. Pierce was stopped by police for speeding.  After speaking with Mr. Pierce and his passenger, Officer Spano became convinced they were carrying contraband.  The officer went back to his patrol car and ran criminal checks on them and then asked Mr. Pierce for permission to search his vehicle.  Upon Mr. Pierce's refusal, Officer Spano called for a canine unit.  A search revealed 38 grams of methamphetamine in the car's console.  Pursuant to a plea agreement, Mr. Pierce appealed his conviction following the trial court's denial of his motion to suppress.

The Dallas Court of Appeals held that Officer Spano did not have reasonable suspicion to believe any crime other than a traffic violation had occurred and that the continued detention was a violation of the Fourth Amendment.

Significant decisions by the Courts of Appeal, August 2008

Honking your horn too loudly could give rise to reasonable suspicion

In Rogers v. State (No. 2-06-345-CR), the Fort Worth Court of Appeals held that the act of honking one's horn loudly and continually while screaming and making wild gestures gives an officer reasonable suspicion to initiate a traffic stop.

At approximately 2:30am on March 4, 2006, Sgt. Kelly Velder of the Arlington Police Department heard a car horn repeatedly blowing for up to 15 seconds at a time, and he saw the driver leaning into the steering wheel, shouting and gesturing wildly at an intersection.  He detained the driver and, after conducting his investigation, arrested her on suspicion of DWI.  

The Court held that making unreasonable noise in a public place was disorderly conduct and gave the police reasonable suspicion to conduct a temporary investigative detention.

A prescription drug and its metabolites are dangerous drugs

In Harkins v. State (No. 2-06-412-CR), the Fort Worth Court of Appeals held that a drug that may only be dispensed with a prescription meets the statutory definition of a dangerous drug.

On March 25, 2006, a concerned citizen called 911 to report that the defendant was driving erratically.  A blood test revealed soma and its metabolite in her system.  Ms. Harkins was charged with DWI -- caused by a dangerous drug.  At trial, the defendant argued that her impairment was not caused by soma but was caused by physical ailments and drowsiness due to sleep apnea.

The defendant argued that the metabolite of soma was not a dangerous drug by the statutory definition, but the Court held that since soma could only be dispensed by prescription, its metabolite was also a dangerous drug.

Putting another motorist in actual danger can give rise to a finding that a car was used as a deadly weapon

In Woodall v. State (03-05-00850-CR), the Austin Court of Appeals held that there must be evidence that another person (or persons) were actually in danger to uphold a finding that a vehicle was used as a deadly weapon.

On February 8, 2003, another driver  witnessed the defendant driving erratically.  The witness saw the defendant hit a barrel divider, almost hit the witness' car and then swerved, hit the curb on multiple occasions and kept driving. The witness followed the defendant to a restaurant and reported what he saw to Officer Mitchell.  The officer approached the defendant and asked him some questions.  He then went outside and looked at the defendant's vehicle -- seeing scratches that seemed consistent with hitting a barrel divider.  Officer Mitchell administered field sobriety tests and arrested defendant on suspicion of DWI.

A jury convicted the defendant of felony DWI and found that he was using his vehicle as a deadly weapon.

Section 1.07(a)(17)(B) of the Texas Penal Code defines deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."  The Court held that as the defendant almost hit the witness that the witness was in actual danger at the time the defendant was driving.

Failing to maintain a single lane by itself is insufficient to warrant a traffic stop

In Fowler v. State (No. 2-06-06183-CR), the Fort Worth Court of Appeals held that a driver's failure to maintain a single lane absent evidence that it was unsafe to do so is insufficient to give an officer reasonable suspicion to detain the driver.

The Court also held that reasonable suspicion cannot be based on an officer's mistaken understanding of traffic laws.  Section 545.060(a) states that a driver shall drive within a single lane and may not move from that lane unless the movement can be made safely.  As the officer failed to produce any evidence that the defendant's movements were not made safely, there was no traffic code violation.

The Court did say that the failure to maintain a single lane when coupled with a driver's leaving a bar, driving into oncoming traffic or weaving over an extended period of time would, however, give an officer reasonable suspicion.

Weaving into oncoming traffic, however, is 

In Keenan v. State (No. 06-08-00086), the Texarkana Court of Appeals held that failing to maintain a single lane and swerving into oncoming traffic did give rise to reasonable suspicion.