Stolen Valor Act – Unconstitutional…

In 2006, it became illegal in this country to lie about your military service.

The Stolen Valor Act made it a federal misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal. If convicted, a person faced imprisonment in a federal prison for up to six months. If the decoration lied about was the Medal of Honor, imprisonment could have been up to one year.

This week, the United States Supreme Court, in United States v. Alvarez, ruled that the Stolen Valor Act was an unconstitutional abridgment of the freedom of speech under the First Amendment, striking down the law in a 6 to 3 decision.

Another stupid law bites the dust.

Traffic Offense – Driving in Left Lane…

This is Part Five of a five part series on analyzing traffic stops. In this series, I discuss four specific traffic laws commonly used by law enforcement officers in the Amarillo area to initiate traffic stops. As I mentioned in my April 28 post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

Under Texas statutory law, it is unlawful to drive in the left lane under certain circumstance. § 544.004 of the Texas Transportation Code entitled “Compliance with Traffic-Control Device” provides:

(a) The operator of a vehicle or streetcar shall comply with an applicable official traffic-control device placed as provided by this subtitle unless the person is:

(1) otherwise directed by a traffic or police officer; or
(2) operating an authorized emergency vehicle and is subject to exceptions under this subtitle.

(b) A provision of this subtitle requiring an official traffic-control device may not be enforced against an alleged violator if at the time and place of the alleged violation the device is not in proper position and sufficiently legible to an ordinarily observant person. A provision of this subtitle that does not require an official traffic-control device is effective regardless of whether a device is in place.

§ 544.011 of the Texas Transportation Code entitled “Lane Use Signs” provides:

If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read “left lane for passing only.”

As I have mentioned in this series on analyzing traffic stops, probable cause to stop a vehicle is determined by the two-prong test set out in Terry v. Ohio. If an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). Texas courts have held that driving in left lane, after passing a sign that read “left lane for passing only” provides reasonable suspicion of traffic violation to justify a traffic stop. Green v. State, 935 S.W.3d 541, 545-546 (Tex.App. – Texarkana 2002, no writ history). See also Baker V. State, 50 S.W. 3d 143 (Tex. App. – Eastland 2001, pet. ref’d.).

The issue in these cases is: Where was the traffic-control sign in relation to the traffic stop and is reasonable to believe that the driver of the vehicle saw the sign?

Again, these types of cases are challenged by filing a motion to suppress evidence and requiring the State to offer evidence to show the Court the officer had probable cause to stop the vehicle.

Traffic Offense – Failure To Drive In A Single Lane…

This is Part Four of a five part series on analyzing traffic stops. In this series, I discuss four specific traffic laws commonly used by law enforcement officers in the Amarillo area to initiate traffic stops. As I mentioned in my April 28 post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

The topic of this post is § 545.060 of the Texas Transportation Code entitled “Driving on Roadway Laned for Traffic.” § 545.060 provides in pertinent parts:

(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:

(1) shall drive as nearly as practical within a single lane; and
(2) may not move from the lane unless that movement can be made safely.

Section 545.060 of the Texas Transportation Code creates one offense: moving out of a marked lane when it is not safe to do so. Hernandez v. State, 983 S.W.2d 867 (Tex.App. – Austin 1998, no writ history). See also Atkinson v. State, 848 S.W.2d 813, 815 (Tex.App – Houston [14th Dist.] 1993, writ ref’d.). The Court in Hernandez stated: “We believe the statutory language shows a legislative intent that a violation of section 545.060 occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely”. Hernandez, 983 S.W.2d at 871. See also Fowler v. State, 266 S.W. 3d 498 (Tex.App. – Fort Worth 2008, writ ref’d.) for a good discussion of cases involving Section 545.060 of the Texas Transportation Code.

Interpretation of this statute by the courts is well settled – as a result, I don’t see as many cases where the traffic stop is based on a violation of § 545.060.

As with other traffic stops, probable cause for a stop based on § 545.060 is determined by applying the two-prong test in Terry v. Ohio.

Again, these types of cases are challenged by filing a motion to suppress evidence and requiring the State to present evidence establishing that the officer had probable cause to stop the vehicle.

Money Laundering Charge Dismissed…

In May of 2011, one of my clients was stopped in Carson County for speeding. He was headed east on Interstate 40. During the course of the traffic stop, the state trooper asked for consent to search the vehicle. Consent was denied. The state trooper then called for a drug-sniffing canine to do a free-air search of the vehicle. According to the dog handler, the dog hit on the vehicle. The officers then conducted a search of the vehicle. They found a large sum of United States currency inside a backpack located on the front passenger seat. The money was wrapped with rubber bands inside a plastic zip-lock baggie.

My client was arrested and subsequently charged with money laundering. The State also filed a civil forfeiture action seeking to forfeit $32,000.00 found in the backpack.

In May of this year, the State dismissed the criminal charges and the civil forfeiture action. The $32,000.00 was returned to my client.

One factor that was favorable to my client was that he did not have a criminal history. Factors that made these cases challenging for the State were: (1) no illegal drugs were found in the vehicle; (2) the money was not wrapped in a manner to avoid detection by a drug-sniffing canine; and (3) there was no attempt to hide the money.