Skip to main content
Category

Criminal Defense

Dec 01
Love0
Accomplice Wtiness Rule Texas

Texas’ Accomplice Witness Rule

By Criminal Defense

Accomplice Wtiness Rule TexasCriminal law disfavors the testimony of an accomplice, for good reason.  The policy behind this is clear – factfinders should be leary of trusting those who have a substantial stake in the litigation, especially those with a direct liberty interest.  A few years back, the 2nd District Court of Appeals (Fort Worth) provided a good synopsis of the Accomplice Witness Rule, which I felt was worth sharing.  The following excerpt is taken from Clark v. State (June 17, 2010).

What is the Accomplice Witness Rule in Texas criminal law?

The accomplice-witness rule is a statutorily imposed sufficiency review andis not derived from federal or state constitutional principles that define the legal andfactual sufficiency standards.  An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense.  Article 38.14 of the code of criminal procedure provides that “[a] conviction cannot be had upon the testimony of anaccomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidencethat tends to connect the accused with the commission of the crime.”  The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself.  Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense.  Rather, the evidence must simply link the accused insome way to the commission of the crime and show that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to theoffense.”  Additionally, “[p]roof that the accused was at or near the scene of the crime at orabout the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”  But “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.”

I omitted the citations, so you should click on the link above and go to page 15 of the opinion if you wants the various cites for the law above.

Nov 11
Love3
Impersonating a Public Servant in Texas

Man Pretends to be a Dallas District Attorney and Receives 2 Years in Prison

By Criminal Defense

Impersonating a Public Servant in TexasWhen I think of someone impersonating an attorney, my mind goes to Joe Pesci and My Cousin Vinny.  In the movie Vincent Gambino only impersonated a criminal defense lawyer (not a public servant) so nobody seemed to care (except the judge), but in Texas, Impersonating Public Servant (including a district attorney) is a serious matter.  Robert Cornwell found this out after he pretended to be a Dallas County Assistant District Attorney in hopes of helping his friend with a DWI case.

In May of 2012, Robert Cornwell called Montgomery County Assistant District Attorney Kourtney Teaff, identifying himself as an assistant district attorney from Dallas County, attempting to “resolve [his friend’s] [DWI] case.” Cornwell claimed access to criminal histories, case files, and fingerprint cards. He mentioned speaking with governmental offices, and prosecuting his nephew for drug possession. Cornwell insisted on using his personal cell phone number because he and Teaff “were on the same team.” Becoming suspicious of the “highly unusual” requests coming from another district attorney, Teaff recorded the conversations. According to the trial court, Cornwell always used his real name, he had never been an attorney in Texas, he never attempted to claim official authority over Teaff, and he intended that “Teaff should consider the requests a personal favor.” Cornwell was sentenced to two years imprisonment for impersonating a public servant.

See the opinion in Cornwell v. State

What does “Impersonating a Public Servant” mean in Texas?

Impersonating a Public Servant is a Third Degree Felony with a punishment range of 2-10 years in prison and up to a $10,000 fine.  A person violates Section 37.11(a)(1) of the Texas Penal Code when the person impersonates a public servant in combination with the requisite intent…[which] can be satisfied with either the submission theory (“with intent to induce another to submit to his pretended official authority”) or the reliance theory (“with the intent to induce another…to rely on his pretended official acts.”).

Cornwell appealed to the Court of Appeals, arguing that the evidence was insufficient to show either theory of intent—submission or reliance—because he did not persuade Teaff to submit to any asserted authority he might have over her. The Court of Appeals rejected Cornwell’s argument, “concluding that the evidence was…sufficient to support a jury finding that he had impersonated a public official with intent to induce another to rely on his pretended official acts—the reliance theory.” Cornwell then petitioned the Court of Criminal Appeals (“CCA”) for discretionary review.

Here, the CCA determines whether the Court of Appeals was incorrect in misconstruing the meaning of the Section 37.11(a)(1) of the Texas Penal Code, as only “a few Texas appellate courts have directly addressed the reliance theory of intent, and specifically, the meaning of pretended official acts.” See Ex Parte Niswanger, 335 S.W.3d at 617 & n.11; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d.); Tovar v. State, 777 S.W.2d 481,489 (Tex. App.—Corpus Christi 1989, pet. ref’d.).

The CCA Clarifies what “Impersonating” means (and doesn’t mean).

The CCA explained that Section 37.11(a)(1) can be broken down into two parts: the culpable act (actus reus, the bad act) and a culpable mental state (mens rea, the guilty mind). To violate the statute, the State must prove:

  1. that the impersonation happened and
  2. that the impersonator had the specific intent to induce another to submit or to rely upon.

“An accused may not be convicted on a simple showing that he falsely held himself out to be a public servant.”

Because it was undisputed that Cornwell did impersonate a public servant—an assistant district attorney from Dallas County—satisfying the first part of the statute, the CCA focused on Cornwell’s mental state, specifically the reliance theory—the evidence that shows Cornwell’s intent to induce another to rely upon his pretended official acts. The CCA explained that Cornwell attempted to persuade Teaff he was “an experienced assistant district attorney by relating various claims of conduct he had undertaken as an assistant district attorney” namely, “putting his nephew in jail, reviewing case files, and investigating matters in the capacity of assistant district attorney.” The CCA is adamant that, “the only reason [Cornwell] could have had for relaying these pretended official acts to Teaff was to enhance the credibility of his claim to be an assistant district attorney.” “By calling and speaking to an assistant district attorney as a member of the same team, [Cornwell]…hoped to gain [Teaff’s] trust and goodwill.” Further, Cornwell did not ask for favor[s] in his capacity as a private citizen or concerned friend, rather, he asked under the guise of being an assistant district attorney. The CCA states, such “purported actions exceed mere false identification as a public servant.” The CCA agreed with the Court of Appeals, affirming Cornwell’s conviction and sentence.

There are no shortcuts to due process. The Texas Penal Code prescribes strict punishment for those impersonating officers of the court. There is no doubt that criminal charges and allegations can make the accused feel panicked and overwhelmed, however, the old adage “desperate times call for desperate measures,” will not hold water in court where impersonation is concerned. If you or a loved one are facing criminal charges, contact an actual Texas attorney who will explain the proper steps in dealing with the legal system. Contact our office today for a free consultation at (817) 993-9249.

Nov 06
Love2
Community Caretaking Fort Worth

“Hunched Over” Passenger Not Enough Distress to Invoke the Community Caretaking Exception

By Criminal Defense, DWI

Community Caretaking Fort WorthWhile conducting a preventative patrol on the Fourth of July in 2013, a Fort Worth police officer stopped at a red light beside Cameron Byram’s vehicle. Both vehicles had the windows rolled down. The officer testified at trial that he noticed a female passenger in Byram’s car “hunched over…[and that he]…didn’t see any movement at all [from] the female.” The officer smelled alcohol coming from Byram’s car, and felt Byram was “not attending to the female passenger.” The officer shouted over to Byram, asking if she was alright, but Byram faced forward and drove away when the light turned green. Believing the female passenger needed medical attention, coupled with Byram’s actions “as an attempt to avoid contact with the police,” the officer stopped Byram’s car to conduct traffic stop. The officer checked on the passenger and called for medical attention, which she later refused. Next, the officer investigated and arrested Byram for driving while intoxicated (DWI). The officer testified that Byram had not committed a traffic offense, nor were there any technical violations on Byram’s car—he only stopped the car to perform a safety check.

Byram v. State (2nd Court of Appeals – Fort Worth, 2015)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion.

After his motion to suppress the evidence for the DWI charge was denied, Byram entered a guilty plea. The trial court assessed punishment at ninety days in jail and a $750 fine, but suspended the sentence, placing him on community supervision for eighteen months. Byram appealed.

The issue before the Fort Worth Court of Appeals is whether the community caretaking exception to the Fourth Amendment applies to the facts of the case, or, whether the police officer had reasonable suspicion to stop Byram.

The Fourth Amendment provides a safeguard against unreasonable searches and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless arrest is considered unreasonable unless it fits into an exception, such as the community caretaking exception. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 2135 (1993); Torres, 182 S.W.3d at 901. A search or seizure “is not unreasonable” when community caretaking is the goal, however, the exception is “narrowly applied” in the “most unusual of circumstances.” Wright, 7 S.W.3d at 152.

“Courts consider four non-exclusive factors in determining whether the officer’s belief that the defendant needed help was reasonable: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

First, the Court of Appeals concludes that the passenger did not exhibit distress. “The passenger did not appear to be in any great distress, she was located in a busy area of town where there were nearby hospitals, she was not alone [in the car], she was in public, and she did not appear to be a danger to herself or others.” Further, the Court of Appeals states, “We…cannot conclude that the…community caretaking exception, when applied to a hunched over passenger…indicates that the passenger presented a danger to herself or others.”

Second, the Court of Appeals determines that the officer lacked reasonable suspicion to be able to perform a safety check. “[While] we do not question the good faith of [the officer’s] subjective suspicion that Byram might have been involved in an alcohol-based offense…so long as consumption of alcohol is not illegal…permitting…investigation of persons for alcohol-based offenses solely on whether the odor of alcohol is present invites unwarranted police intrusions.” Byram’s traffic stop violated his Fourth Amendment rights.

Justice Sue Walker dissents, stating the passenger was exhibiting signs of distress because she “was not moving and appeared unconscious.” The passenger was also in a vehicle driven by a man “who appeared unconcerned about her well-being.” The passenger’s access to assistance was doubtful because Byram did not respond to the police officer’s question about her condition. Lastly, the passenger was a danger to herself because she appeared unresponsive and unable to ask for help. “Thus, all four factors…support the reasonableness of the officer’s belief that she needed assistance.”

Law enforcement officers must abide by local, state and federal procedural and substantive laws when conducting traffic stops and arrests. If you or a loved one is facing DWI charges or traffic violations, please contact our office today for a free consultation at (817) 993-9249.

Jan 18
Love10
Sharen Wilson Tarrant County District Attorney

Tarrant County District Attorney Sharen Wilson Oversees all Fort Worth Prosecutors

By Criminal Defense

Tarrant County District Attorney Sharen Wilson

Sharen Wilson Tarrant County District Attorney

Sharen Wilson, who took office in 2015, is the elected Tarrant County District Attorney. She is the top of all Fort Worth prosecutors, managing a large office of Assistant District Attorneys, investigators, support staff, and even a therapy dog.  Prior to assuming her new role as the Tarrant County District Attorney, Sharen Wilson presided over Criminal District Court Number 1 as a District Judge.  Her office receives cases from the various police departments across Tarrant County, investigates the cases, and files misdemeanor or felony criminal cases.  The Assistant District Attorneys under Sharen Wilson present cases to grand juries and manage dockets in the 20 Tarrant County criminal courts and the Courts of Appeals.  If you are interested in observing a criminal trial in Tarrant County, check out the Tarrant County Trial Board for a list of cases each week.

Fort Worth Prosecutors | Tarrant County DA

The Tarrant County District Attorney office has over 150 Fort Worth prosecutors and over 50 investigators. The office has a budget of $38 million dedicated to criminal prosecutions and investigations in Tarrant County.  Colloquially, every Assistant District Attorney is referred to as a “Tarrant County DA” or “prosecutor,” but the ultimate authority over criminal prosecutions is retained by Sharen Wilson.  Fort Worth prosecutors are known across the state as fair and collegial attorneys.  They have a reputation for taking a fair look at each case and providing all available information to the defense bar in a timely manner.  Although the Tarrant County District Attorney office is one of the largest in the state, in one of the largest counties in the state, the office and its staff carry themselves with small-town values.  While each criminal case is different and may have its own challenges, our criminal defense attorneys have always been satisfied with the professionalism of the Tarrant County DA office.

Free Consultation of Tarrant County Criminal Cases

Our Fort Worth criminal defense attorneys square off every day with the Tarrant County DA office. We have a proven track record of favorable results for our clients. We understand that every case and every client are different. We take a personal approach to every client and pursue every option to address our clients’ individual needs. For a FREE consultation of your Tarrant County criminal case, contact our team at (817) 993-9249.

Jan 08
Love0
Fort Worth criminal investigation

Private Investigator: An Indispensable Criminal Defense Asset

By Criminal Defense

Investigating Every Case to Uncover the Real Truth | Fort Worth Criminal Defense Lawyers

Fort Worth criminal investigationEvery criminal allegation exists in a gray area. If one were to focus solely on the police report, a criminal case might seem black and white. But it’s not. There are secrets, personalities, motivations, half-truths, unnamed witnesses, and much more lurking in the shadows of every case. One of the keys to a successful defense is to uncover those facts not articulated in the police report and give the case a context. This is why we use a private investigator as part of our defense team.

A good private investigator is indispensable to a full and complete criminal defense. You would be surprised to hear what people will tell an investigator (while being recorded). Perhaps it’s because people like to feel important, or maybe some folks just aren’t completely aware of what they are saying, but a good private investigator can blow a case wide open simply by hitting the streets to interview witnesses and others connected to the case.

Our investigator is a retired police officer that spent over 30 years on the force in the Dallas Fort Worth Metroplex, including many years as an undercover narcotics officer. He can look at a police report and spot errors in the investigation at the drop of a hat.

If you have been charged with a criminal offense in Tarrant County, Texas and you know that there is more to your case than what is contained in the police report, give us a call and we will coordinate with our investigator to get started uncovering “the rest of the story.” Contact us today for a free consultation.

Oct 16
Love0

Our Greatest Achievement

By Criminal Defense

We were asked this week to name our law firm’s greatest achievement.  Hmm… We’ve experienced quite a few successes over the past several years; acquittals, dismissals, no bills.  We’ve built strong relationships with people in the Fort Worth community.  We’ve been fortunate enough to help many clients.  But our greatest achievement…

After some thought, we knew our greatest achievement.

Our greatest achievement is the warm hug or firm handshake of a grateful client.

Just the other day we completed a criminal case in Tarrant County where the client’s parents had come to court to watch.  After the case was over we had a chance to speak with the parents in the hallway of the courthouse.  Our client’s mother was so thankful and through her tears asked if she could give us a hug.  That was the biggest compliment we could ever receive.  It was the overflow of her heart and in that moment, we knew we had made a difference in their lives.

We absolutely love what we do.  We get to help real people.  We are thankful for the opportunities to be a blessing.  We know that it is no accident when a client walks into our office.  Praise God for His plans and His purposes.

Aug 07
Love1

KNOW YOUR RIGHTS – Being Accused in Texas

By Criminal Defense

KNOW YOUR RIGHTS – Being Accused in Texas

Be informed. Be aware. Maintain your composure. Your Liberty is at stake. Every day, Texas citizens have interactions with Texas law enforcement. If you have an encounter with law enforcement it is extremely important that you realize that a police officer does not represent you and is not looking out for your legal interests. Only an attorney can do that. You must stay informed and aware of your rights in order to ensure that the Government does not abuse its power. Under the United States and Texas Constitutions and the Texas Code of Criminal Procedure, every citizen has the following rights:

  • THE RIGHT to be informed of the specific offense(s) alleged to have been committed.
  • THE RIGHT to remain silent. Any statement a person makes, oral, written, or non-verbal [nodding of the head] may be used as evidence against that person in a trial by the State of Texas in court or in other judicial proceedings.
  • THE RIGHT to an attorney for any offense other than a class c misdemeanor.
  • THE RIGHT to obtain an attorney of the person’s own choosing, at that person’s expense, for any offense.
  • THE RIGHT to consult with an attorney and to have a lawyer present during any interrogation.
  • THE RIGHT to terminate an interview or interrogation at any time.
  • THE RIGHT to refuse to give consent to search.
  • THE RIGHT against self-incrimination.

NEVER TALK TO OR FOLLOW THE ADVICE OF INVESTIGATORS  WITHOUT FIRST OBTAINING THE ADVICE OF AN ATTORNEY

GENERAL ADVICE

A suspect has a legal, moral and constitutional right to remain silent and place the burden of overcoming the presumption of innocence and proving his or her guilt beyond a reasonable doubt on the officers, investigators, and attorneys for the government. A suspect should never make an oral, written, or non-verbal statement concerning suspected criminal conduct, even to close friends or relatives without first consulting an attorney. Your best friend can turn out to be your biggest problem at trial and your family members can sometimes be compelled to testify against you. Also, BEWARE of the fact that a routine law enforcement tactic is to monitor and record phone or personal conversations between a suspect and the alleged victim or other persons which may play a role in the case. Criminal investigators work to protect the interest of the government and not the interests of the suspect. ONLY a suspect’s personal attorney can and will work to protect the interests of the suspect. During an interview or interrogation, some officers or investigators may use the “good guy-bad guy” technique in which one acts rough and tough and the other one sympathizes and tries to “help” the suspect. The officers or investigators can legally lie to or deceive a suspect in an effort to get a statement, so be careful! These people are highly trained to elicit incriminatory statements from suspects. The safest thing to do is to simply refuse to talk (or even listen to) the investigators. The request for an attorney must be a clear, unequivocal insistence to speak to an attorney; Comments like “do I need an attorney” or “I think I want an attorney” are NOT sufficient to invoke the right to counsel and to terminate the interview. A suspect may be ordered by a judge to give certain samples (handwriting, hair samples, blood, etc). When possible, consult an attorney before doing so or as soon as possible afterwards, especially if ordered to do so over your objection. NEVER CONSENT to the taking of evidence, except for your fingerprints and photograph. Make the investigator get a search warrant. An investigator does not have authority to direct that a suspect produce evidence, except photographs and fingerprints. If a suspect finds that an appointment has been made for him/her with a physician, drug/alcohol counselor, social worker, or psychiatrist, the suspect should contact an attorney first because conversations between suspects and anyone other than his/her attorney(s) are not privileged or confidential under the law. Communications between a suspect and his/her attorney or agent for the attorney (paralegal) are privileged, unless the communication clearly contemplates the future commission of an illegal act.

SEARCHES AND SEIZURES

A suspect should NEVER CONSENT to a search of his/her person or property without first consulting an attorney. A suspect should make it perfectly clear to the authorities that he/she does not consent, but if the authorities persist, a suspect should never physically resist. There are many theories upon which a search may be legally justified and an attorney will examine he facts of the search at a later time to determine if law supported it. If a suspect legitimately consents to the search, however, there are no legal issues. IMPORTANT: A person who does consent to a search may withdraw that consent at any time during a search. IF YOU CONSENT TO A SEARCH, ANY EVIDENCE FOUND COULD BE USED AGAINST YOU! Force the authorities to get a lawful search warrant.

APPREHENSION, ARREST, AND CONFINEMENT

In many cases, investigators do not physically “arrest” a suspect. After questioning or contact by the investigators, the suspect is usually released. When confronted by investigators, a suspect should never run away or physically resist apprehension, arrest, or confinement, whether that person is innocent or guilty. He/she should always go along peacefully with the authorities, while asking that an attorney be made available before any questioning. Any resistance or flight, even if innocent, can be considered as evidence of guilt. Additionally, resisting apprehension can lead to additional charges being added and/or pre-trial confinement. Pre-trial confinement can occur under very limited circumstances, where the officer or investigator determines that the suspect is a “flight risk,” a danger to the community or to himself, or is likely going to continue the misconduct if not put into pre-trial confinement.

POLYGRAPHS

Polygraphs are frequently used by law enforcement personnel. Under no circumstance should a suspect agree to take a polygraph with the law enforcement agency without advice of counsel. Remember it is permissible for investigators to lie to the suspect, so a suspect could actually “pass” a polygraph, but be told by the examiner that he “failed” the polygraph; the fact that a person is actually telling the truth in no manner means that the polygraph will indicate no deception. Polygraphs are notoriously unreliable, so much so that they are inadmissible in court.

GOOD CONDUCT BEFORE TRIAL

Waiting for your trial date to arrive will be a very difficult time for you. It is extremely important however that you avoid any additional problems prior to trial. As difficult as it will be, you must maintain an excellent attitude at all times and strive to be a productive member of society.

Jun 08
Love0
Court Reporter Record

If a Tree Falls in the Forest… | The Importance of a Court Reporter

By Criminal Defense

Much like the existential question about the tree falling in the forest, if something occurs during a session of court and there’s no court reporter around to hear it (or transcribe it), did it really occur? More importantly, if the losing party wishes to appeal a ruling that took place during the time when the court reporter was not around, can that party prevail? The simple answer, according to the Texas Court of Criminal Appeals, is NO.

In Davis v. State, the appellant challenged a certain ruling (the granting of a continuance over defense objection), but there was no record of the session of court in which the ruling was made. Accordingly, the appellate court could not determine whether the trial court erred in granting the State’s motion. The appellant asserted that the trial court had a duty to make a record of the hearing and that any deficiency in the record must work against the State as the party that made the motion. Not so, held the CCA, overruling the 5th District Court of Appeals (Dallas).

The CCA explained:

Our case law…imposes an additional, independent burden on the appealing party to make a record demonstrating that [a certain] error occurred in the trial court. This includes a burden to object when the official court reporter is not present, as he is required to be under Rule 13.1, in order to preserve and error that may occur for appeal.

Even though the State had that burden at trial, the appellant, as the appealing party, had an obligation to present a record in the court of appeals that demonstrates he in entitled to appellate relief.

And with that, the CCA overturned the 5th District Court of Appeals, and affirmed appellant’s conviction.

Moral of the story for criminal defense lawyers: Always request (under section 52.046 of the Government Code) that a court reporter be present for open sessions of court. You never know what you might want to appeal later. And if for some reason the court reporter isn’t present and you get an adverse ruling, make a later record of it. Give the appellate court something to go on, or else you will certainly lose.  As the CCA put it, “it is the appellant who must bear the consequences of such a definicency in the record.”

Note: The CCA mentioned in footnote 19 that it has yet to weigh in on the question discussed in Polasek v. State, 16 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2000, pet. Ref’d) regarding whether Tex. R. App. P. 13.1 requires a court reporter at all sessions or whether section 52.046(a)(1) trumps. Section 52.046(a)(1) requires the court reporter only when one of the parties makes a request.

Judge Johnson concurred, but it is not clear (to me) why.

Mar 04
Love0
Texas Consensual Police Encounter Law

Perpetuating the Fiction of the Consensual Police Encounter

By Consensual Encounter, Criminal Defense

Is there really such a thing as a Consensual Police Encounter that ends with an arrest?

Texas Consensual Police Encounter LawIn a case released yesterday from the Texas Court of Criminal Appeals (State v. Castleberry), the CCA went to great lengths to defend and perpetuate the fiction of the consensual police encounter.

In Castleberry, the defendant and a friend were walking behind an Uncle Julio’s restaurant in Dallas. They were not engaged in and did not appear likely to engage in criminal conduct. A Dallas police officer approached them and asked for identification. The defendant reached for his waistband. The police officer then ordered appellant to place his hands in the air. The defendant grabbed a baggy of cocaine from his waistband and tossed it on the ground. The trial court suppressed the cocaine, reasoning that the officer did not have “reasonable suspicion” to justify the stop. The 5th District Court of Appeals agreed.

The CCA, on the other hand, held that the lower courts applied the wrong legal standard and characterized the stop as a consensual police encounter. Writing for the majority, Judge Keasler, stated:

Even if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that a citizen complied with the request does not negate the consensual nature of the encounter…We conclude that a reasonable person in [the defendant’s] position would have felt free to decline [the officer’s] request for identification and information.

The obvious question then becomes, what would the CCA preferred the defendant to do? “No, thanks officer, I prefer not to provide any identification or tell you what I am doing. Thank you. Have a nice night.” Had the appellant said that, there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here.

The opinion goes on to suggest police officers (even when they are in uniform) are just like any average citizen.

Because an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the officer’s]conduct shows that the interaction was a consensual encounter.

Ultimately, the CCA reasons that because the defendant could have been reaching for a weapon when he reached into his waistband, the officer’s further pat-down search was justified under Terry.

The CCA concludes:

The Court of Appeals failed to separate [the encounter] into two distinct parts: (1) [The officer’s] initial approach of [the defendant], which was a consensual encounter; and (2) [The defendant’s] act of reaching for his waistband, which provided [the officer] with reasonable suspicion to detain and frisk [the defendant]. We therefore reverse the court of appeals’s judgment, hold the seized contraband to be admissible, and remand the cause to the trial court.