Stop and Frisk Furr v. State 2016

Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

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Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Stop and Frisk Furr v. State 2016Furr v. State (Tex. Crim. App. 2016)

On September 21st the Criminal Court of Appeals decided Furr v. State. In Furr, the Court held that an anonymous tip was sufficiently corroborated to establish reasonable suspicion to stop and frisk Appellant Furr. To support the stop and frisk, the court noted that Appellant:

  • watched the officer as he drove by,
  • repeatedly looked at the officer as he walked away,
  • was nervous, anxious and sort of out of it,
  • appeared under the influence of drugs, and
  • did not initially respond as to whether he was armed.

Further, the Court stated it is not per se objectively reasonable for a police officer to execute a pat down of a suspect for weapons simply because they are accused of drug possession.

The Facts of Furr v. State

Corpus Christi Police Department received an anonymous tip that two men were doing drugs on a particular street corner, one dressed in all black and the other in a black shirt carrying a brown backpack. In response, an officer drove past the street corner. He observed two men that fit the description from the tip and noticed in his rearview mirror that the men were watching him as he drove by. The officer then approached the two men but one of the men, Furr, walked away into the nearby shelter, repeatedly looking over his shoulder at the officer. The officer described Furr’s actions as furtive, “like he was trying to get away.”

When another officer arrived, the officers made contact with Furr. Furr was described as nervous, anxious, evasive, and was sweating excessively. Furr did not respond when the officers initially asked if he had any weapons on him. Officers said he appeared “kind of out of it” and “like he was under the influence of a drug. As a result, for safety reasons, officers frisked Furr for weapons and found a glass crack pipe in Furr’s front pocket. When removing the pipe, the officer also found two syringes, and after arrest, two small balloons of heroin.

Furr was charged with possession of a controlled substance. He pled guilty, reserving his right to appeal after his motion to suppress was denied. Furr argued on Appeal that officers did not have reasonable suspicion to stop and frisk him and that the trial court erred by not granting the Motion to Suppress the search.

The Court of Appeals Affirmed the Trial Courts Decision

The court of appeals held that Furr’s nervousness coupled with the observation that he seemed to be under the influence of a drug sufficiently corroborated the tip to support the investigative detention and that Furr’s failure to initially respond about being armed coupled with the other circumstances justified the frisk.

The Criminal Court of Appeals Concluded that there Was Reasonable Suspicion to Detain and Frisk Furr.

1. The Analysis of the Detention

In order to detain a person, the police officer must have reasonable suspicion based on “specific articulable facts, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). Anything that happens or that is observed before the detention will be considered in determining whether the officer indeed had reasonable suspicion to detain Furr.

Furr argued that the anonymous tip alone was not enough.  The Court, however, explains that if there had only been the anonymous tip, it would not have established reasonable suspicion, but here there was more. The Court identifies several independent observations:

  • Furr and the other man were at the specified location and matched the informant’s description.
  • The area was a “high drug, high crime” area.
  • Furr and the other man watched the officer as he drove past
  • When the officer approached the two, Furr walked away “furtively.”
  • When the officers came upon Furr in the shelter he was sweaty, nervous, anxious, and appeared out of it as if he was under the influence of a drug.

Thus, the reasonable suspicion here was not solely based on the informant’s tip, but instead that tip was corroborated by independent observations made by the police officers. Looking at the totality of these circumstances, the Court held that the officers had reasonable suspicion to stop Furr and investigate the information from the anonymous tip that Furr and the other man were using and possessing a drug.

2. The Terry Frisk

The Court rejected the State’s request to adopt a rule that it is, “per se, objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs,” because reasonable suspicion to frisk a suspect cannot be established by accusations of drug possession alone.

The Court further rejects the State’s argument that the officer was objectively justified in patting Furr down for weapons because this was outside of a homeless shelter for two reasons: 1) Nothing in the record shows that the shelter was a homeless shelter; and 2) Even if it was a homeless shelter, the Court does not see a correlation between being armed and dangerous and being at a homeless shelter.

Even so, the Court ultimately agrees with the court of appeals that reasonable suspicion was established here because the anonymous tip was corroborated by all of the circumstances surrounding the officers’ interactions with Furr. Specifically, the Court noted the tip, personal observations by the officers and the high drug, high crime area would warrant a belief that the safety of officers and others was in danger.

DISSENT – Stop and Frisk Should Have Been Held Unlawful

Judge Meyers dissented from the majority and opined that the stop and frisk of Furr was unlawful and that the motion to suppress should have been granted. Judge Meyers concluded that neither Furr’s action of looking over his shoulder or the anonymous tip, alone or combined, were sufficient to establish reasonable suspicion. Thus, there was no need to analyze the legality of the frisk. Judge Meyers believes that the majority made its decision “not based on law but on the feeling that Furr should not get relief.”

Failure to Maintain a Single Lane of Traffic DWI Attorney Fort Worth

Failure to Maintain a Single Lane of Traffic Leads to a DWI Conviction

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Does an Officer have “Reasonable Suspicion” to Make a Traffic Stop When Vehicle Weaves Inside a Traffic Lane?

Failure to Maintain a Single Lane of Traffic DWI Attorney Fort WorthJames Leming was convicted of DWI after erratic driving alarmed fellow motorists to call police. On January 20, 2012, a citizen filed a report of a “swerving Jeep” and Officer Manfred Gilow responded. As the dashboard camera confirmed, the Jeep traveled thirteen miles under the speed limit; Gilow followed the Jeep for several miles. Officer Gilow observed the Jeep, “drifting [within the] lane to the left [with] tires on the stripes… back to the right, almost hit[ting] the curb twice.”

Officer Gilow said he did not stop the Jeep immediately because the heavy traffic made a traffic stop unsafe at the time. He wanted to wait until the Jeep approached “the 3000 block because I knew there’s parking lots where he could pull over [safely].” Gilow justified the warrantless stop under the Community Caretaking Exception, “due to the …[low] speed…and…swerving, it was an indication that the driver [was] somehow either distracted or physically not able to operate [his] motor vehicle carefully.”

Eventually, the officer pulled Leming over, noting on the police report, the smell of liquor. Though Leming denied drinking, he said he had taken some prescription pills. Officer Gilow conducted field sobriety tests and placed Leming under arrest for DWI.

Read the full opinion in Leming v. State.

Leming’s DWI Trial and Motion to Suppress the Stop

Before the trial began, Leming filed a motion to suppress the traffic stop, which was denied. At trial, Leming pled guilty to and was convicted of DWI. Because Leming had two prior DWI convictions (a felony under Texas law), the court assessed punishment at ten years’ imprisonment. Tex. Penal Code § 49.09(b)(2).

The Sixth Circuit Court of Appeals reversed the trial court’s ruling, holding that the trial court should have granted the motion to suppress. Leming v. State, 454 S.W.3d 78 (Tex. App.—Texarkana 2014). The Sixth Circuit concluded that Gilow lacked reasonable suspicion to detain Leming for the offense of failure to maintain a single lane under Section 545.0600(a) of the Texas Transportation Code. The court reasoned “in order for it to have been unlawful, the encroachment must have been made unsafely; [here,] there was no real danger of his colliding with another vehicle in an adjacent lane.” The State’s Prosecuting Attorney petitioned the Court of Criminal Appeals for discretionary review, arguing that the citizen’s report coupled with Officer Gilow’s observations were sufficient for reasonable suspicion that Leming was driving the Jeep under the influence.

The Issue Before the Texas Court of Criminal Appeals Regarding the Traffic Stop

The Court of Criminal Appeals had to determine whether a driver must BOTH fail to maintain a single lane AND not change lanes without checking to assure the maneuver can be accomplished safely, before it may be said that a driver has committed an offense. Such an offense would rise to the level of reasonable suspicion for a constitutionally-sound traffic stop.

What Does the Texas Transportation Code Say About Driving Within a Single Lane?

Section 545.060(a) states that “an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.”

The CCA Holds that a Driver Must Maintain a Single Lane AND Must not Leave the Lane Unless it is Safe.

The CCA explains that the fact that both the requirement to stay within a single lane as for as practical and the prohibition to not leave that lane unless it is safe to do so, originally appeared in the same subsection of the statute, does not indicate that the Legislature intended that both must be violated before an offense has occurred. Rather, the CCA believes that the Legislature intended a violation of EITHER part of the statute constitutes separately actionable offenses.

The CCA says that Officer Gilow knew from personal observations, as well as from the citizen’s report, that Leming had some sort of trouble maintaining a steady driving pattern while traveling under the speed limit. “That was sufficient information to justify a temporary detention to investigate whether Leming had actually failed at some point to remain in his dedicated lane of traffic as far as it was practical to do so under the circumstances—it matters not whether that failure was unsafe.” Further, Officer Gilow had an objectively reasonable basis to suspect Leming of driving under the influence.

As a matter of principle, the CCA notes, “it [would be] counterproductive and contrary to common sense to set the reasonable suspicion bar for DWI so high that law enforcement must hesitate to investigate such hazardous driving for fear that the stop will later be invalidated.” In a Concurring Opinion, Judge Richardson adds, “I believe [the community caretaking exception] provided justification for the officer’s stop, where, a reasonable police officer—given the totality of the circumstances-would believe [someone] is in need of help.” Dissenting, Judge Keasler stated, “this is a close case…the majority reaches the wrong result by misconstruing the statute and finds reasonable suspicion on the basis of a single insufficient articulable fact.” Judge Newell also dissented in this case.

Reasonable Suspicion Brodnex Texas 2016

Turns Out That Walking Late at Night in a High-Crime Area Is Not Criminal Activity

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Reasonable Suspicion Brodnex Texas 2016Frequently the public’s perception as to what officers can and cannot do during encounters is convoluted and even wrong. Many people are unaware of what their 4th Amendment rights actually afford them when it comes to contact with police officers. First, it’s important to know that an officer is completely free to approach whomever he wants and have a consensual encounter with someone whether or not he has a specific reason. However, an officer cannot detain you on a simple hunch, the police officer must have reasonable suspicion of criminal activity. Then comes the question of what exactly is reasonable suspicion.

What is Reasonable Suspicion?

According to Fourth Amendment law, reasonable suspicion exists when there are specific articulable facts that, when combined with rational inferences from the facts, would lead a reasonable officer to believe crime was afoot. The police officer must have more than a hunch that a crime was in progress. If a police officer detains, frisks, or searches someone without reasonable suspicion that officer has violated the 4th Amendment and evidence coming from that unlawful detention must be suppressed.

The 4th Amendment in Action – Brodnex v State of Texas (2016)

In a case just decided by the Court of Criminal Appeals of Texas, the Court overturned a conviction because it found the officer did not have reasonable suspicion to detain the defendant, thus, violating the 4th Amendment.

In Brodnex v. State, the defendant was arrested and convicted of possession of a controlled substance. The arresting officer observed Brodnex and a female walking in an area known for narcotic activity around 2 a.m.. The officer approached the two individuals, asked them their names and what they were doing. When Brodnex identified himself, the officer asked him “Didn’t you just get picked up?” and Brodnex replied “Hell no.” The Officer then searched Brodnex and found a cigar tube with crack cocaine.

The Officer’s reasons for detaining Brodnex were:

  • The time of day;
  • The area’s known narcotic activity, and
  • His belief, based on what other officers had told him, that Brodnex was a “known criminal.”

Brodnex filed a motion to suppress challenging both the stop and search. The trial court denied the motion and the appellate court affirmed.

The CCA Overturns the Conviction for Lack of Reasonable Suspicion

The Court of Criminal Appeals of Texas held that Brodnex was illegally detained because at the time of detention, under the totality of the circumstances, the facts apparent to the officer “did not provide him with a reasonable suspicion for the detention.” Therefore, the crack cocaine should have been suppressed. The court’s holding relied on the fact that the officer had simply seen Brodnex walking, not doing anything that would suggest he was engaged or about to engage in criminal activity. Additionally, the court found that the officer’s limited personal knowledge of Brodnex’s criminal history was not enough to support the belief that Brodnex was lying about not being picked up.

Know Your Rights

This case explains that the officer must have sufficient information that links the suspect to a particular crime before reasonable suspicion exists. While the time of day and high-crime area are factors that Texas courts consider, those alone are insufficient to develop reasonable suspicion. Since reasonable suspicion is based on the totality of the circumstances, it is often not completely clear as to whether a particular set of facts rises to the level of reasonable suspicion.

If you are facing criminal charges that resulted from a detention or search that might not have been supported by reasonable suspicion, any evidence found from might be able to be suppressed. Contact our criminal defense team today to discuss your case and determine whether a reasonable suspicion issue is present.

*To know your rights on the go, download our FREE Mobile App.

Passing in Left Lane in Texas

Warrantless Traffic Stop Upheld for Driving in “Passing Only” Lane

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Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Passing in Left Lane in TexasJaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.