Armstrong County – Increase in Drug-Interdiction Traffic Stops…

I have also noticed there has been an increase in drug-interdiction traffic stops by state troopers on U.S. Highway 287 in Armstrong County. Highway 287 runs through Amarillo southeast to the Dallas-Fort Worth metroplex and then on to the Gulf Coast of Texas. As I mentioned in my November 10 post, more and more counties in the Amarillo area want a piece of the huge revenues generated by drug-interdiction activity along Interstate 40 and the other major highways in this area.

Dallam County & Hartley County – Uptick in Drug-Interdiction Traffic Stops…

Over the last year I have noticed there has been an uptick in drug-interdiction traffic stops by state troopers on U.S. Highway 87 in Dallam County and Hartley County. Highway 87 is the major road for travel from Colorado through New Mexico to the high plains of Texas. After seeing the revenues generated by drug-interdiction activity along Interstate 40, it appears Dallam and Hartley County authorities want to get in on the action.

With the relaxed attitude towards marijuana use and possession in Colorado, I expect to see more and more activity along Highway 87.

Possession of Controlled Substance Charge Dismissed…

In May of 2011, one of my clients was stopped in Hartley County for speeding. He was headed north on US Highway 87. (DPS officers in Hartley County & Dallam County have stepped up their efforts at drug interdiction in the last year or so along Highway 87 which is a major route between the high plains of Texas and Colorado.) During the course of the traffic stop, the state trooper asked for consent to search the vehicle. My client denied consent to search his vehicle. 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 and found edibles containing Tetrahydrocannabinol (hashish) and a few mushrooms containing Psilocybin.

My client was arrested and subsequently charged with two counts of possession of a controlled substance.

We filed a motion to suppress alleging that the officer did not have reasonable suspicion to detain my client until a drug dog arrived on the scene. We also challenged the purported hit by the drug dog. After an evidentiary hearing on the motion to suppress, the Court granted our motion and suppressed all evidence in the case. In July of this year, the State dismissed the criminal charges filed against my client.

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.

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.

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.

The Fourth Amendment and Drug Dog Sniffs…

In Illinois vs. Caballes, 543 U.S. 405 (2005), the United States Supreme Court ruled that law enforcement officers do not need reasonable suspicion to use a drug dog to sniff a vehicle during a legitimate traffic stop.

Roy Caballes was stopped by Daniel Gillette, an Illinois State Trooper, for speeding on Interstate 80 in La Salle County, Illinois. When Gillette radioed the dispatcher to report the traffic stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed to the scene of the traffic stop with his narcotics-detection dog. When Graham arrived at the scene, Caballes’s car was on the shoulder of the road and Caballes was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around Caballes’s car. The dog alerted at the trunk. The officers then searched the trunk and found marijuana. Caballes was arrested and charged with trafficking marijuana. It is important to note that the entire incident lasted less than 10 minutes. Although convicted at trial, the Illinois Supreme Court overturned the conviction ruling that a drug dog sniff was unreasonable without evidence of a crime other than speeding.

The United States Supreme Court saw it otherwise. In a 6 to 2 decision, the Court held that the Fourth Amendment is not applicable when law enforcement officers use a drug dog sniff during the course of a legal traffic stop. The Court reasoned that since dog sniffs only identify the presence of illegal items, in which citizens have no legitimate privacy interest, the Fourth Amendment does not apply to their use.

Caballes therefore authorizes law enforcement officers to walk a drug dog around a vehicle during any legitimate traffic stop. If the dog signals that it smells illegal drugs, the officers then have probable cause to conduct a search.

Search Incident to Arrest – Cell Phones

In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), the Fifth Circuit Court of Appeals ruled that law enforcement officers may search cell phones incident to a lawful arrest.

Citing both United States v. Robinson, 414 U.S. 218 (1973) and New York v. Belton, 453 U.S. 454 (1981), the Court stated “Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial.” Finley at 259-260.

Finley was charged with and ultimately convicted of aiding and abetting possession with intent to distribute a controlled substance (methamphetamine). After his arrest and during the search of his cell phone, law enforcement officers found incriminating text messages relating to drug trafficking which were used against him at his trial.