Probable Cause Archives | Fort Worth Criminal Defense and Personal Injury Attorneys

Final Four DWI Texas

DWI Madness | “The Final Four” Reasons Texans are Stopped for DWI

By | DWI

Final Four DWI TexasMarch Madness is here again. With the Final Four approaching, we built a bracket of our own. In this article, DWI attorney Jason Howard discusses the top four reasons people are stopped or detained for a DWI investigation in Texas. We’ve compiled and power-seeded our list based on the numerous Tarrant County DWI cases we handle every year. Before we get to the “Final Four,” here are some honorable mentions that didn’t quite make the tournament list:

  • Sleeping in a running vehicle
  • Driving the wrong way on a one-way street
  • Rolling through a stop sign
  • Expired registration as seen by police scanner
  • No license plate light

Of course, there are many more reasons that folks are stopped and investigated for DWI, but below are the top four reasons that we see the most.

The Top Four Reasons Drivers Are Stopped for a DWI Investigation in Texas

#4 – Auto Accident

By auto accident, we mean everything from a head-on collision to a run-in with a mailbox. More serious accidents will usually generate the presence of officers on scene within a matter of minutes. Officers are usually looking to rule out the possibility of someone being intoxicated as soon as they arrive on scene. Minor accidents where there are no injuries might elicit a call to 911 (when there would otherwise just be a swap of insurance) if the other party involved suspects a DWI. Easy to see that if you’ve consumed alcohol and are involved in an accident, there is a high probability of a DWI investigation.

#3 – Swerving or Weaving

Please note – there is a difference between the two. Swerving is the more blatant failure to maintain a single lane by driving the vehicle all across the road. Weaving, on the other hand, is usually more subtle and sometimes observed within the lane. Regardless, if it’s late at night and a police officer is behind you and observes either of these driving behaviors, the red and blues are probably going to come on and the driver asked to step out of the vehicle for field sobriety testing.

#2 – Lane Change Problems

The #3 and #4 seeds were probably the top guesses, right? Surprisingly, we see more of numbers 1 and 2 than any other. And they probably weren’t the ones you guessed. I’ve grouped lane change issues because they can vary from the failure to signal a lane change or turn to the failure to make a proper turn at intersection (aka the “wide right” or “wide left” turn.) If you monitor your daily driving (when you’ve consumed no alcohol,) you’ll probably see that you commit many of these types of traffic infractions constantly. You’ll certainly see other people commit them. So, how does that translate to a police officer’s suspicion of drinking and driving? If it’s late at night on a Friday or Saturday, most patrol officers are quick to pull people over for any traffic violation just to check them out and make sure they’re not DWI.

That brings us to our number one reason people are stopped prior to a DWI arrest…

#1 – Speeding

We’re not talking 100mph in a 30mph zone, although we have seen some crazy speeds. No, we’re talking general, everyday speeding; 5 or 10 miles an hour over the speed limit. Nighttime patrol officers love to use their speed detection devices to initiate stops to find DWIs. That’s right! Patrol officers aren’t just looking for obvious impaired driving clues. It’s clear from our experience in handling DWI cases in Tarrant County that most officers are suspicious of anyone out late at night (especially on the weekends.) They know they only need a legal reason to stop someone at any given time. And once they establish their legal reason (even if it’s just speeding,) they then get to proceed with the “where are you coming from, where are you going, have you had anything to drink?” line of questioning. Once they get an admission of “yeah, I had a couple” or smell even the faintest odor of alcohol from the vehicle, they then get the driver out of the vehicle and begin the field sobriety tests. And once they start with the field sobriety tests, the possibility of being arrested goes up astronomically – even if you’re not intoxicated!

If we were to play out the DWI Final Four tournament, Speeding would be your Texas State Champion.

What Should You Do If You Are Suspected of Driving While Intoxicated?

We’ve written on this topic several times, including:
DWI Information Page
May I Legally Refuse a Field Sobriety Test?

If you have been arrested for DWI in Tarrant County after being stopped for one of these four reasons (or any other reason), contact our Tarrant County DWI attorneys for a free case evaluation.

Can Police Stop You for Driving on the Improved Shoulder of the Road?

By | Drug Crimes

State v. Cortez (Tex. Crim. App. 2018)

Jose Cortez was stopped because a Texas State Trooper allegedly observed him driving on an “improved shoulder” in violation of Texas Transportation Code § 545.058. The officer testified that Cortez touched the white “fog” line of the road and crossed it twice. During the ensuing stop, the trooper searched Cortez’s vehicle and found drugs. Cortez moved to suppress the stop (and the search) arguing that the officer lacked probable cause to initiate the stop.

What is Driving on the Improved Shoulder?

The Texas Transportation Code also defines “improved shoulder” as a “paved shoulder” with the “shoulder” being the “portion of the highway that is:

  •  adjacent to the roadway;
  • designed or ordinarily used for parking;
  • distinguished from the roadway by different design, construction, or marking; and
  • not intended for normal vehicular travel.”

The Texas Transportation Code §545.058 prohibits drivers from driving on the shoulder unless it is necessary and 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.”

Court Suppressed the Traffic Stop Because Driving on the Shoulder Did Not Violate Any Laws

In this case, the trial court determined, after careful review of dashcam footage and officer testimony, that Cortez did not appear to touch the fog line, and that even if he did, that was not a violation of the law. The courts also reasoned that if Cortez did cross the line, he was doing so to let the officer pass and to exit the highway, both reasons justified by the statute. The court of appeals affirmed the trial court’s suppression of the stop. The Texas Court of Criminal Appeals agreed and affirmed the lower court’s ruling.

What Does This Mean for Texas Drivers?

First, it is not illegal to touch the white line of the shoulder under Texas Transportation Code § 545.058. If you are pulled over for this, the courts have determined this is not a violation of the law and does not provide a reasonable basis for an officer to pull you over and search your vehicle.

Second, if you do cross the white line, that is not necessarily a violation. If one of the acceptable reasons above is present, then it is permissible to cross the shoulder line and the police will not have a reasonable basis for stopping you and should not stop you or search your vehicle.

Overall, you should pay close attention when you are driving. But the courts have acknowledged that it is nearly impossible to drive in a perfectly straight line. The police do not automatically have a reasonable basis to stop you if you cross the white line, and they have NO basis for stopping you if you merely touch it. However, as we have always said, if you are stopped, be polite, be courteous, and do not consent to any searches.

NOTE: Presiding Judge Keller dissented in this case and would hold that driving on the white fog line does constitute driving on the improved shoulder in violation of the transportation code.

Shoplifting Before Leaving the Store

Can Police Arrest a Person for Shoplifting Before They Leave the Store?

By | Theft

Shoplifting Before Leaving the StoreThe Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. The court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.

The court of appeals held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker’s Dissenting Opinion

Reasonable Suspicion Brodnex Texas 2016

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

By | Reasonable Suspicion, Search & Seizure

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.

Criminal Attorneys Fort Worth

Purposeless Pacing Not Evidence of Prostitution

By | Prostitution

Prostitution Case Overturned for Lack of Reasonable Suspicion or Probable Cause | Fort Worth Prostitution Defense Attorneys

Criminal Attorneys Fort WorthState v. Johnson – San Antonio 4th Court of Appeals (2015)
At approximately 9:00 p.m., San Antonio police officer Christopher Connelly and his partner observed Shamar Johnson “pacing” on the sidewalk in a dimly lit area near two gay clubs. Officer Connelly’s testimony differs from Johnson’s in some respects, but there is general agreement on the relevant facts. The area was known for gay prostitution. Based on their belief that Johnson had no reason to be loitering in the area, Officer Connelly and his partner pulled up to Johnson in their car, exited the vehicle and began questioning Johnson.

When Johnson saw the car, he stopped. According to Officer Connelly, Johnson appeared to be nervous and put his hands in his pockets. Johnson said that the presence of the officers on either side of him was intimidating. Officer Connelly instructed Johnson to put his hands on the patrol car and asked Johnson if he had anything illegal in his possession. Again, Johnson said that he did not believe he could leave and had to do exactly what the officers said. Johnson told the officers they could search him. The officers found a plastic bag containing cocaine and arrested Johnson.

Johnson moved to suppress the evidence the officers found because the detention and search were unlawful. The trial court found Officer Connelly’s testimony “credible” and denied the motion to suppress. Johnson subsequently struck a plea bargain and pled no contest to the charge of possession of a controlled substance.

Johnson appealed the trial court’s decision. Consistent with the standard for reviewing a trial court’s action on a motion to suppress, the Court of Appeals deferred almost entirely to the trial judge, who was in the best position to assess credibility of witnesses, regarding the facts of the case, but made its own determination regarding how the law applied to the facts.

In a four-step analysis, the Court of Appeals found the officers’ encounter with Johnson constituted an unlawful seizure and the motion to suppress should have been granted.

(1) Both sides agreed that the officers’ encounter with Johnson was not consensual. The State admitted there was no support to argue the search was consensual.

(2) The state argued the officers’ detention of Johnson was based upon reasonable suspicion, which requires the existing of specific facts leading an officer to conclude that a person has committed or is about to commit a crime. The State cited the facts that Johnson was in a dimly lit area known for male prostitution and Johnson’s “loitering” looked like someone who was engaged in prostitution. The Court of Appeals disagreed, concluding that being present in a dimly lit area, even an area known for prostitution, does not provide reasonable suspicion that an individual is a prostitute. Because the officers had no reasonable suspicion to detain Johnson, Johnson’s detention was a violation of the Fourth Amendment.

(3) The Court considered whether Johnson’s consent to search was an act of free will. The court noted the consent occurred shortly after Johnson was told to place his hands on the car and there were no intervening circumstances to lessen the “taint” of the improper detention. Although nothing indicated the officers intended to commit an unlawful detention, the Court found Johnson’s consent was not an exercise of his free will and therefore did not remove the taint of the unlawful detention.

(4) After determining the trial court should have granted the motion to suppress, the Court of Appeals considered whether that error made any difference in Johnson’s punishment. Although Johnson accepted a plea bargain rather than go to trial, the Court of Appeals believed the denial of the motion to suppress gave the State leverage in the process and may have contributed to Johnson’s giving up his right to a trial in order to obtain a favorable punishment recommendation.

Many people believe they are required to cooperate in any encounter with police until the police officers terminate the encounter. However, Johnson v. Texas makes it clear police officers do not have unlimited authority to detain an individual unless they have a reasonable suspicion that a crime has been or is about to be committed. While police officers may see reasonable suspicion where others would not and trial courts may agree, higher court decisions have set a standard for reasonable suspicion which limits police ability to detain citizens who, like Shamar Johnson, just appear to be in the wrong place at the wrong time.

DWI defense attorney Fort Worth

DWI: Is Passing on the Shoulder Evidence of a Traffic Offense?

By | DWI

DWI Conviction Overturned | Passing on the Shoulder Permitted in Certain Circumstances

DWI defense attorney Fort WorthIn many ways, Texas Court of Criminal Appeals also acts the State’s highest traffic court. What follows is a synopsis of Lothrop v. State, wherein the CCA opines on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop, the police stopped Appellant after observing him use the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated (DWI). At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop. Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of 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.

The trial court denied the motion and Appellant pled guilty to DWI. The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely. Merely driving on an improved shoulder is not prima facie evidence of an offense. Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred.

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.   So there you have it – your traffic lesson for today from the CCA. You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

Reliable Enough for Probable Cause

By | Probable Cause

Fort Worth warrantless arrest attorneysWhen a probable-cause affidavit describes a “controlled purchase” that was performed by an individual whose credibility or reliability were unknown, is that (or can it be) sufficient to sustain a probable-cause determination?  The Court of Criminal Appeals said YES in Moreno v. State.

Moreno v. State: After receiving a tip from the Clovis, New Mexico Police Department that Appellant, Dimas Moreno, was distributing narcotics from his home, the Lubbock police department orchestrated a controlled purchase of drugs from Appellant. Officers enlisted the help of a confidential informant (“CI”), who was familiar with cocaine deals, to purchase crack cocaine from Appellant. The CI approached an unknowing participant in an effort to purchase the crack cocaine. The individual told the CI that he would go to Appellant’s house to pick up the crack cocaine. Police observed the individual go to Appellant’s house, enter, and exit a few minutes later. The unknowing participant then drove to the predesignated location and delivered the crack cocaine to the CI.

On the basis of these facts, a magistrate issued a warrant to search Appellant’s residence for crack cocaine and any other related contraband. After executing a warrant, police found the drugs and arrested Appellant. Appellant was subsequently charged with possession with intent to deliver a controlled substance in an amount of four or more but less than 200 grams. Appellant filed a motion to suppress, challenging the sufficiency of the affidavit. He claimed that there could be no probable cause when an affidavit describes a controlled purchase in which an unidentified individual of unknown credibility and reliability purchased the drugs.

The trial court held a hearing and denied Appellant’s motion. Appellant preserved his right to appeal, pled guilty and was sentenced to fifteen years’ confinement. The court of appeals affirmed, concluding that the affidavit was sufficient because probable cause was based upon police observations rather than upon any statements made by the unknowing participant.

To issue a search warrant, a magistrate must first find probable cause that a particular item will be found in a particular location. The magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

In this case, the court of criminal appeals held that the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause. It was reasonable for the magistrate to infer that the unknowing participant obtained the crack cocaine from Appellant’s house based on “common-sense conclusions about human behavior.” While it was possible that the third party obtained the cocaine from another source, Appellant presented no persuasive argument as to why the magistrate’s inference was unreasonable or whether the unknown participant had a motive to mislead the police. Therefore, the judgment of the court of appeals was affirmed.

Search & Seizure Defense Lawyers | Fort Worth, Texas

If you or a loved one were the subject of an unconstitutional and illegal search, seizure, or arrest, please contact us today for a free consultation of your case.

Supreme Court Decision Watch: Conflicting Consent to Search

By | Search & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

Fort Worth DWI Lawyers

Being Left of Center: Reasonable Suspicion for a DWI Stop?

By | DWI

Fort Worth DWI LawyersYou can’t believe anything he says. He tries to sound intelligent and reliable, but falls far short. Did you think I was writing about a political candidate? Nope. A police officer.

The Second District Court of Appeals (Fort Worth) just released State v. Houghton, a Driving While Intoxicated (DWI) case that centered around the testimony of the arresting officer.  In this case, the defendant moved to suppress the DWI stop for lack of reasonable suspicion.  At the suppression hearing, the police officer testified that he couldn’t remember why the car initially caught his attention. Perhaps it was for speeding, but he couldn’t say for sure.  He further testified that the car was driving left of center in a lane, but that it never actually crossed over the line.

Granting the motion to suppress, the trial court commented that the officer lacked any credibility. Affirming the trial court’s suppression ruling, the Court of Appeals, held:

To establish reasonable suspicion, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion.  Terry, 392 U.S. at 21-22, 88 S. Ct. 1868, 1880… Generally, law enforcement action can only be supported by facts the officer was “actually aware of at the time of that action.” State v. Ruelas, 327 S.W.3d 321, 326-27 (Tex. App.―El Paso 2010, pet. ref’d). As stated by the court in Ruelas, “The preference for objective standards, however, does not apply to the facts on which officers act.” Id. at 326 (holding officer lacked reasonable suspicion where it was not until suppression hearing when state was questioning motorist defendant that officer learned of facts suggesting he violated traffic code by making left turn into right-hand lane).

Here, because the officer failed to offer any justifiable reason for the traffic stop (a reason that was in his mind at the time of the stop, vice at the suppression hearing), the Court of Appeals affirmed the trial court’s suppression of the traffic stop.  A police officer can’t just follow the prosecutor’s lead to justify the stop.  He has to be able to articulate what was going through his mind at the time of the stop.  If is doesn’t amount to reasonable suspicion, the case needs to get kicked.

DWI Lane Change

Lane Ends, Merge Left | Reasonable Suspicion for DWI Stop

By | Traffic Offenses

DWI Lane ChangeBack in 2010, we posted about Mahaffey v. State, a case in which the CCA directed the 12 District Court of Appeals (Tyler) to determine whether a “lane merge” is a “turn” under the Texas Transportation Code, such that it requires a driver to signal.  If a “merge” does not require a turn signal (as the appellant failed to do in this case), then the police stop was improper (without reasonable suspicion) and the evidence of his DWI gained from the stop should have been suppressed.

The 12th Court took another look at the case and once again determined that a “merge” was a “turn” and thus required a turn signal.  Apparently, the 12th Court did not get the CCA’s hint the first time around.

In a 5-3 opinion with Judge Meyers concurring, the CCA reversed (again), holding:

We disagree with the State’s contention that the termination of a lane does not affect whether a driver changes lanes under the signal statute.  As a practical matter, “changing lanes” requires the existence of more than one lane: In order to change lanes from Lane A to Lane B, Lane A must exist.  Appellant did not change lanes.  The two lanes became one. …[N]o signal is required when two lanes become one.

Presiding Judge Keller dissented and was joined by Judges Price and Keasler.  She would hold that because Appellant’s lane ended, he had to change lanes, and that changing lanes requires a turn signal.

Well, it looks like logic prevailed in this one.  You cannot change lanes if there is only one lane in which to drive.  The majority got it right here.  No signal is required for a lane merge.  Remember that if a police officer tries to pull you over for failing to signal.