Traffic Offense – Failure to Use Head Lights…

Under Texas law, a vehicle is required to have a head light on each side of the front of the vehicle. Head lights are required to be used at nighttime and when light is insufficient or atmospheric conditions are unfavorable so that a person or vehicle on the highway is not clearly discernible at a distance of 1,000 feet. Texas Transportation Code Section 547.302(a) & (c). Nighttime is defined as the period beginning one-half hour after sunset and ending one-half hour before sunrise. Texas Transportation Code Section 541.401(5).

Failure to use head lights when required is a traffic offense under Texas Law.

Law enforcement officers often use the type of violation to stop vehicles on Texas highways to conduct their drug interdiction activities.

Possession of Illegal Drugs – Affirmative Links…

There are many instances when law enforcement officers find illegal contraband, for example, marijuana, cocaine, methamphetamine or United States currency, in a vehicle occupied by more than one person. In most of these cases everyone is arrested and charged with possession of an illegal drug (or money laundering when currency is found). The question then becomes: Is a person guilty of possession simply by being present where illegal drugs are found? The answer: No.

Conviction for possession of illegal drugs requires proof that the defendant possessed the drugs knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995 En Banc).

The Texas Court of Criminal Appeals has also held that: “To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule.” (Citations omitted). Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005).

The mere presence at a place where contraband is being used or possessed by others does not justify finding that a person is in joint possession or is a party to an offense. When the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it in order to convict the accused of possession of a controlled substance. Robinson v. State, 80 S.W.3d 730, 735 (Tex.App. – Houston [1st Dist.] 2002).

The “affirmative links rule” in a prosecution for possession of a controlled substance is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. Poindexter at 406.

Proof of an affirmative link between the accused and the contraband is needed to establish knowledge or intent to possess the contraband when the accused is not in exclusive possession of the place where the contraband is found. Robinson at 735.

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.

Traffic Offense – Driving On Improved Shoulder…

This is Part Three of a five part series of posts that I began with my April 28th post entitled “Analyzing Traffic Stops” wherein I indicated that I would 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 28th 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 on the improved shoulder of a roadway except in limited circumstances. § 545.058 of the Texas Transportation Code provides in pertinent parts:

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

(1) to stop, stand, or park;
(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.

(b) An operator may drive on an improved shoulder to the left of the main traveled portion of a divided or limited-access or controlled-access highway if that operation may be done safely, but only:

(1) to slow or stop when the vehicle is disabled and traffic or other circumstances prohibit the safe movement of the vehicle to the shoulder to the right of the main traveled portion of the roadway;
(2) as permitted or required by an official traffic-control device; or
(3) to avoid a collision.

Many of the cases I defend began as a traffic stop for driving on the improved shoulder of Interstate 40.

Texas courts generally recognize that a law enforcement officer has reasonable suspicion to justify an investigatory stop for driving on the improved shoulder of a roadway if there is no evidence of necessity under one of the specified purposes for driving on the improved shoulder authorized by Section 545.058. State v. Dietiker, 345 S.W.3d 422, 425-426 – Waco 2011, no writ history). See also Tyler v. State, 161 S.W.3d 745, 749-750 – Fort Worth 2005, no writ history).

A law enforcement officer must have probable cause to stop a motorist for a suspected traffic violation. Probable cause is determined by applying the two-prong test in Terry v. Ohio I have discussed in this series of posts on analyzing traffic stops.

During my investigation, I review the arresting officer’s report and the traffic stop video. If these discovery items are inconclusive on the issue of probable cause, then we challenge the stop by filing a motion to suppress evidence. The question often is, did the motorist actually drive on the improved shoulder? As I have said, the State has the burden to prove the officer had probable cause to stop the vehicle. Under Terry, the officer must have had specific, articulable facts that would show a violation § 545.058. Without these facts, the traffic stop would be illegal.

Traffic Offense – Following Too Closely…

This is Part Two of a five part series of posts I began with my April 28th post entitled “Analyzing Traffic Stops” wherein I indicated I would 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 28th post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

The first statute I want to discuss is § 545.062 (a) of the Texas Transportation Code which states:

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.

I regularly see cases where the officer stops a motor vehicle for following too closely in violation of this section. Now you may ask yourself, what does it mean to follow too closely? Based on my reading of § 545.062 (a), a driver commits a traffic offense if, considering the speed of the vehicles, the other traffic on the roadway and the conditions of the highway, he fails to allow enough space between his vehicle and any vehicle he is following, to avoid an accident if he is required to suddenly stop.

Recall that the legality of a traffic stop is determined by the factors relied upon by a law enforcement officer in making the decision to stop the motor vehicle. What the officer saw and his interpretations of his observations are critical to the determination.

When I conduct my investigation in cases governed by § 545.062 (a), the officer generally writes in his report that he stopped the vehicle for following too closely and leaves it at that. Very rarely do I see any mention of the speed of the vehicles, any other traffic on the roadway or the condition of the highway, or even how close the vehicles actually are to one another – all important factors under the statute.

In a case involving § 545.062 (a), the Texas Court of Criminal Appeals, in its Terry analysis, stated: “…specific, articulable facts are required to provide a basis for finding reasonable suspicion. Mere opinions are ineffective substitutes for specific, articulable facts in a reasonable-suspicion analysis.” Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005).

These types of cases are challenged by filing a motion to suppress evidence. At the hearing on the motion to suppress, the State has the burden to prove the officer had probable cause to stop the vehicle. Under the rulings of Terry and Ford, the officer must have specific, articulable facts that show a violation § 545.062 (a). Without these facts, the traffic stop would be illegal. It is important to note that the officer’s opinion that the driver was following too closely is not sufficient to establish probable cause for the traffic stop.

Analyzing Traffic Stops…

The legality of traffic stops for Fourth Amendment purposes are analyzed under the standard articulated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). 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, 392 U.S. at 19, 88 S.Ct. at 1878. In assessing whether the intrusion was reasonable, an objective standard is utilized: would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. Also see Davis v. State, 947 S.W.2d 240 (Tex.Crim.App. 1997).

As I have mentioned before, Texas courts routinely recognize that a law enforcement officer may lawfully stop a vehicle and conduct a brief investigation when he observes a traffic violation. Strauss v. Texas, 121 S.W.3d 486, 490 (Tex.App. – Amarillo 2003, pet. ref’d.). The decision to stop a vehicle is reasonable when the officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000).

The legality of a traffic stop is determined by the factors relied upon by a law enforcement officer in making the decision to initiate the stop. What the officer saw and his interpretations of his observations are critical. To successfully challenge a traffic stop, a thorough investigation is required and, quite often, a motion to suppress evidence must be filed. Over the next two months, I am going to discuss four specific traffic laws that are commonly used by law enforcement officers in the Amarillo area to initiate traffic stops and explain how these stops are challenged in court.

Traffic Stops – What Officers May Lawfully Do…

A law enforcement officer may lawfully stop a vehicle and conduct a brief investigation when he observes a traffic violation. Strauss v. Texas, 121 S.W.3d 486, 490 (Tex.App. – Amarillo 2003, pet. ref’d.). In general, the decision to stop a vehicle is reasonable when the officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000).

During a routine traffic stop, the officer may require the driver to identify himself and produce a valid driver’s license and proof of liability insurance. Strauss at 491. The officer may direct the driver to step out of the vehicle, Estrada v. State, 30 S.W.3d 599, 603 (Tex.App. – Austin 2000, pet. ref’d.), detain the driver to check for outstanding warrants, Walter at 542, inquire about the registration of the vehicle, Sieffert V. Texas, 290 S.W.3d 478, 483 (Tex.App. – Amarillo 2009), and ask about the destination and the purpose of the trip. Haas v. State, 172 S.W.3d 42, 50 (Tex.App. – Waco 2005, pet. ref’d.).

The officer may also question any passenger in the vehicle. Duff v. State, 546 S.W.2d 283, 286 (Tex.Crim.App. 1977).

Once the purpose of the traffic stop has been completed, the officer may then ask the driver if he possesses any illegal contraband and may also ask for voluntary consent to search the vehicle. Strauss at 491. If consent to search is not given, the officer may no longer detain the vehicle or its occupants unless reasonable suspicion of some other criminal activity exists. Sieffert at 484.