Consent to Search…

As I have noted in prior posts, 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. Hayes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim. App. 1976).

However, the protections afforded by these constitutional guarantees may be waived.

One noted exception to the requirement of either a search warrant or probable cause is a search that is conducted pursuant to consent. Before the consent is deemed effective, the prosecution must prove by clear and convincing evidence that the consent was freely and voluntarily given. The burden to prove by clear and convincing evidence that consent was freely and voluntarily given requires the prosecution to show the consent given was positive and unequivocal and there must not be any duress or coercion, actual or implied. The question of whether consent was voluntary is a question of fact to be determined from the totality of all the circumstance surrounding the giving of the consent to search. See Meeks v. State, 692 S.W.2d 504, 508-509 (Tex.Crim.App. 1985, en banc); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997, en banc); and Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000).

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.

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.

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).