Terry Stops – Unreasonable Searches & Seizures…

The Fourth Amendment to the United States Constitution and Article 1, §9 of the Texas Constitution prohibit unreasonable searches and seizures by law enforcement officers. It is well established that the basic purpose of the Fourth Amendment is to safe guard the privacy and security of individuals against arbitrary invasion by governmental officials. Hayes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971). The same is true of Article 1, §9 of the Texas Constitution. Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App. 1976).

There are three recognized categories of interactions between law enforcement officers and other individuals: (1) encounters, (2) investigative detentions, and (3) arrests.

An encounter is a friendly exchange of pleasantries or mutually useful information. In an encounter, a law enforcement officer is not require to possess any particular level of suspicion and the individual is free to walk away and not answer any questions asked by the law enforcement officer. Hawkins v. State, 758 S.W.2d 255, 259 (Tex.Crim.App. 1988).

An arrest occurs when an officer takes an individual into custody. A law enforcement officer must have probable cause to arrest an individual if there is no warrant to arrest that person. In order to establish probable cause for an arrest, the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information must be sufficient to warrant a prudent man in believing that the individual had committed or was committing a crime. Parker v. State, 206 S.W.3d 593, 596 (Tex.Crim.App. 2006).

The concept of investigative detentions originated with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) which sought to ensure police action that fell technically short of an arrest was not immune from Fourth Amendment protection. In an investigative detention, also known as a Terry stop, the officer must have articulable facts that, in light of his experience and personal knowledge, together with inferences from those facts, would reasonable warrant the intrusion on the freedom of the individual stopped. Terry, 392 U.S. at 21. The officer must have a reasonable suspicion that some unusual activity is occurring or has occurred, and the person he has detained is connected with the activity and that the activity is related to the commission of a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App. 1986, en banc); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App. 1983). An investigative detention is a seizure under which the individual is not free to leave. Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App. 1996, en banc).

A traffic stop is a “seizure” within the meaning of the Fourth Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004, en banc). Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, traffic stops are analyzed as a Terry stop. Haas v. State, 172 S.W.3d 42, 50 (Tex.App. – Waco 2005, pet. ref’d.).

Therefore, for a traffic stop to be lawful in Texas, the officer must have a reasonable suspicion that some unusual activity is occurring or has occurred, and the person he has detained is connected with the activity and that the activity is related to the commission of a crime; the crime being a violation of the traffic laws of Texas.

Rules to Live By – Update…

After reading Alford v. State, ___ S.W.3d ___ (Tex.Crim.App. 2012) (see previous post), I decided to update my “Rules to Live By” first published in my March 12, 2011, post. I have added Rule Number 4. My updated Rules to Live By are as follows:

Rule Number 1: Do not talk to the police.

Rule Number 2: Always follow Rule Number 1.

Rule Number 3: First thing, ask for a lawyer.

Rule Number 4: Identify yourself and shut up.

Exercise your right to remain silent – do not cooperate with the police.

Even answering simple questions can have disastrous results.

Miranda – Routine Booking Question Exception…

In Miranda v. Arizona, the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).

The Supreme Court later elaborated upon the meaning of “interrogation” under Miranda explaining that the term refers to (1) express questioning and (2) “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

A four-justice plurality subsequently recognized, as a type of question “normally attendant to arrest and custody,” a “routine booking question exception” to Miranda that “exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990). Writing the plurality opinion, Justice Brennan explained that questions that are asked “for record-keeping purposes only” and are “reasonably related to the police’s administrative concerns . . . fall outside the protections” of Miranda. Muniz, 496 U.S. at 601-02. The Court held that questioning Muniz about his “name, address, height, weight, eye color, date of birth, and current age” were Miranda exempt because these questions were “reasonably related to the police’s administrative concerns.” Muniz, 496 U.S. at 601-02.

Texas courts have consistently recognized this routine booking question exception to Miranda. The most recent Texas Court of Criminal Appeals decision on the exception is Alford v. State, ___ S.W.3rd ___, (Tex.Crim.App. 2012). In Alford, Cecil Alford was arrested for evading arrest. After he was transported to the county jail, the arresting officer searched the back seat of his patrol car and found a clear plastic bag containing several pills. Directly under the bag he found a flash drive. The officer showed the flash drive to Alford and asked him what it was – Alford said it was a memory drive. The officer ask Alford if it was his and Alford said yes. Subsequent testing revealed that the pills were ecstacy. Alford was then charged with possession of a controlled substance. At trial, the State introduced the statements concerning the flash drive to help establish Alford’s knowledge and possession of the controlled substance. The jury convicted Alford and he was sentenced to five years’ confinement in the Texas Department of Corrections.

Prior to trial, Alford filed a motion to suppress his statement concerning the flash drive claiming that the questioning by the arresting officer violated Miranda. The trial court denied the motion to suppress ruling that the question was a routine booking question and was not in violation of Miranda. On appeal, the Texas Court of Criminal Appeals confirmed Alford’s conviction. To read the Court’s opinion, click here: Alford v. State.

United States vs. Jones

It appears the United States Supreme Court does in fact recognize the Fourth Amendment to the United States Constitution. My faith is revived.

In United States v. Jones, 565 U.S. __ (2012), the United States Supreme Court unanimously ruled that law enforcement officers violated the Fourth Amendment when they attached a GPS device to Antoine Jones’ car and collected data on his whereabouts for 28 days. Jones was under suspicion for trafficking and conspiracy to traffic cocaine. Although law enforcement officers had a warrant to attach the GPS device, the warrant expired before the device was attached and the officers attached it to Jones’ vehicle in a jurisdiction not covered by the warrant. In effect, the officers attached the GPS device without a warrant.

The Supreme Court unanimously agreed that the law enforcement officers violated the Fourth Amendment to the United States Constitution. Remember, the Fourth Amendment protects “persons, houses, papers, and effects,” from unreasonable searches and seizures. The majority – Justice Scalia (author), Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Sotomayor – decided that physically installing a GPS device on someone’s car and using it to monitor movements is a “search.” However, the majority left the door open for future issues relating to a person’s expectation of privacy in a highly digital world, including whether a warrant is always required in GPS cases.

To read the Court’s opinion, click here: United States v. Jones.

No Country for Innocent Men…

Timothy Brian Cole was 26 years old when he was wrongfully convicted of rape in a Lubbock, Texas, courtroom in 1986. At the time of the rape, he was a student at Texas Tech University – Texas Tech had an enrollment of approximately 22,000 students – About 500 were African-American. Timothy was one of the 500.

Timothy died in a Texas prison on December 2, 1999, while suffering an asthma attack. At the time of his death, he had served 13 years of a 25 year sentence for a crime he did not commit. He was 39. He was finally exonerated in February of 2009. DNA evidence showed him to be innocent. He was pardoned posthumously in March of 2010.

Beth Schwartzapfel wrote a wonderful article entitled “No Country for Innocent Men” about this tragic failure of the Texas Criminal Justice System. It appears in Mother Jones. This is a must read.

To read more about Timothy’s case see The Innocence Project.

Probable Cause – Traffic Stops…

The following is a general discussion of federal case law on probable cause and traffic stops.

A traffic stop is a “seizure” within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 653 (1979). See also United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc); Francis v. Smith, 922 S.W.2d 176, 178 (Tex.Crim.App. 1996).

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968). Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, traffic stops are analyzed as Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).

Both the driver and any passengers are considered seized within the meaning of the Fourth Amendment and may challenge the legality of the stop and the length and scope of their detention. Brendlin v. California, 551 U.S. 249 (2007).

Under Terry, the court must determine the reasonableness of the search or seizure by asking (1) whether the officer’s action was justified at its inception; and (2) whether the officer’s action was reasonably related in scope to the circumstances which justified the interference in the first place. Terry at 392 U.S. 19. In the context of a traffic stop, obtaining identification, registration, and insurance papers, running warrant checks, and asking questions of the driver regarding his travel itinerary are all reasonably related to the reason for the stop. United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993).

“Once the purpose of a valid traffic stop has been completed and an officer’s initial suspicions have been verified or dispelled, the detention must end unless there is additional reasonable suspicion supported by articulable facts.” United States v. Gonzales, 328 F.3d 755, 758 (5th Cir. 2003) (citing United States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir.2001); Shabazz, 993 F.2d at 436). However, “a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer’s professional judgment, that emerges during the stop.” United States v. Brigham, 382 F.3d 500, 512 (5th Cir. 2004) (en banc).

Following Distance – Following Too Close…

Law enforcement officers patrolling Interstate 40 in and around Amarillo commonly stop automobiles for following too close to the vehicle in front of them.

Section 545.062 of the Texas Transportation Code provides:

(a) An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

(b) An operator of a truck or of a motor vehicle drawing another vehicle who is on a roadway outside a business or residential district and who is following another truck or motor vehicle drawing another vehicle shall, if conditions permit, leave sufficient space between the vehicles so that a vehicle passing the operator can safely enter and occupy the space. This sub-section does not prohibit a truck or a motor vehicle drawing another vehicle from passing another vehicle.

(c) An operator on a roadway outside a business or residential district driving in a caravan of other vehicles or a motorcade shall allow sufficient space between the operator and the vehicle preceding the operator so that another vehicle can safely enter and occupy the space. This subsection does not apply to a funeral procession.

When investigating and defending these types of traffic stop cases, it is important to make sure that the law enforcement officer who initiated the traffic stop had specific facts that support the reason for the stop. Mere opinions of the officer are ineffective substitutes for specific, articulable facts in determining whether the traffic stop was reasonable and lawful. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005).

Your Silence Can Be Used Against You…

Texas law now allows your silence to be used against you whether you testify at your trial or not – another excellent reason to never voluntarily talk to law enforcement officers. In Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex.App.-Houston [14 Dist.] Mar 17, 2011) the Court held that the Fifth Amendment to the United States Constitution has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify. To read the Court’s opinion, click here.

As a result of the Salinas decision, if you voluntarily talk to law enforcement officers and refuse to answer a question or otherwise remain silent when asked a question, your silence can be placed into evidence and the prosecution can argue to the jury that your silence is evidence of guilt.

Since 1980 the law has been clear that if a defendant does testify at his trial, his pre-arrest silence can be used to impeach him. See Jenkins v. Anderson, 447 U.S. 231, 238-240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The United States Supreme Court held that the use of pre-arrest silence to impeach does not violate the Fifth Amendment because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins at 238, 100 S.Ct. 2124.

Although Texas law now allows pre-arrest silence to be used against a non-testifying defendant, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.

Terry v. Ohio

In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court ruled that the Fourth Amendment to the United States Constitution permits a law enforcement officer to stop, detain and frisk persons who are suspected of criminal activity without first obtaining their consent even though the officer may lack a warrant to conduct a search or probable cause to make an arrest. Now known as a Terry Stop, this type of police encounter is constitutionally permissible only when an officer can articulate a particularized, objective and reasonable basis for believing that criminal activity may be afoot or that a given suspect may be armed and dangerous.

The Court said that no police officer may lawfully stop and detain a person for questioning unless the officer first observes unusual conduct that arouses a reasonable suspicion of criminal activity. A stop may be no longer than necessary to confirm or dispel an officer’s suspicion and must not be unnecessarily restrictive or intrusive. During the period of detention, no searches may be performed unless the officer has an objective and particularized basis for believing the suspect is armed and dangerous. Any search must be limited to the suspect’s outer clothing and may be performed only for the purpose of discovering concealed weapons. Evidence obtained during searches that comport with these restrictions is admissible under the Fourth Amendment. Evidence obtained in violation of the limitations set forth in Terry may be suppressed under the exclusionary rule.

The Exclusionary Rule

The exclusionary rule is based on federal constitutional law. It excludes evidence obtained in violation of a criminal defendant’s Fourth Amendment right against unreasonable searches and seizures by law enforcement officers. If the search of a criminal suspect is unreasonable, the evidence obtained in the search will be excluded from trial.

Before the exclusionary rule was fashioned, evidence was admissible in a criminal trial if the judge found the evidence was relevant. The manner in which the evidence had been seized was not an issue. This began to change in 1914 when the United States Supreme Court devised a way to enforce the Fourth Amendment in recognition of police misconduct. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent had conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial and Mr. Weeks was convicted. On appeal, the United States Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search. Mr. Weeks’s conviction was reversed and thus was born the exclusionary rule.

The exclusionary rule established in Weeks was constitutionally required only in federal court until Mapp vs. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In Mapp, Cleveland police officers had gone to the home of Dollree Mapp to ask her questions regarding a recent bombing. The officers demanded entrance into her home. Ms. Mapp called her attorney and then refused to allow the officers in without a warrant. The officers became rough with her, handcuffed her and searched her home. They found allegedly obscene books, pictures and photographs. Ms. Mapp was charged with violations of obscenity laws, prosecuted and convicted. Her conviction was affirmed by the Ohio Supreme Court but overturned by the United States Supreme Court.

In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment. Before Mapp, not all states excluded evidence obtained in violation of the Fourth Amendment. Since Mapp, a defendant’s claim of unreasonable search and seizure has become a matter of course in most criminal prosecutions.

A criminal defendant’s claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding judge. This hearing is conducted before trial to determine what evidence will be suppressed or excluded from trial.