Reasonable Suspicion Archives | Fort Worth Criminal Defense and Personal Injury Attorneys

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

License Plate Scanner BROCA MARTINEZ

Whether “Unconfirmed” Insurance Creates Reasonable Suspicion to Stop

By | Reasonable Suspicion

Is “Unconfirmed” Insurance Enough to Justify a Traffic Stop?

License Plate Scanner BROCA MARTINEZWhile conducting surveillance on an illegal immigration investigation, Homeland Security agents saw a vehicle leave a residence suspected of harboring undocumented immigrants. The agents notified local police officers to be-on-the-lookout for the vehicle. While on patrol, an officer began to follow the defendant’s vehicle because it matched the description of the vehicle from Homeland Security. While following the vehicle, the local officer entered its license plate number into a computer database designed to return vehicle information such as insurance status. The computer indicated the insurance status was “unconfirmed.” Based on his experience using this system, the officer reasoned that the vehicle was most likely uninsured, which is, of course, a violation of Texas law. The officer then conducted a traffic stop of the vehicle and learned that the defendant was in the United States illegally. The officer issued the defendant citations for violating the insurance requirement and driving without a license while he waited for the Homeland Security agents to arrive.

Defendant Challenges the Stop, Arguing that the Officer Lacked Reasonable Suspicion.

The United States government charged the defendant with conspiracy to harbor illegal aliens. The defendant argued that the “unconfirmed” insurance status obtained from the state computer database did not provide the officer reasonable suspicion to stop the defendant. The trial court was unconvinced by this argument.

The 5th Circuit Court of Appeals recognized that it had not yet addressed whether a state computer database indication of insurance status establishes reasonable suspicion as a matter of law. However, the court commented that the Sixth, Seventh, Eighth, and Tenth Circuits have found that such information may give rise to reasonable suspicion as long as there is either some evidence suggesting the database is reliable or at least an absence of evidence that it is unreliable. In this case, the court followed the other circuits that have decided this issue and held that a state computer database indication of insurance status may establish reasonable suspicion when the officer is familiar with the database and the system itself is reliable.

5th Circuit Upholds the Stop, Finding that “Unconfirmed” Insurance Creates Reasonable Suspicion.

Here, the court found that the officer’s testimony established the reliability of the database. First, the officer explained the process for inputting license plate information. Second, the officer described how records in the database are kept and stated that he was familiar with these records. Finally, the officer testified that based on his knowledge and experience as a police officer, he knows a suspect vehicle is uninsured when an “unconfirmed” status appears because the computer system will either return an “insurance confirmed,” or “unconfirmed” response. As a result, the court held that the officer had reasonable suspicion to stop the defendant.

Read the court’s full opinion in UNITED STATES V. BROCA-MARTINEZ, 2017 U.S. App. LEXIS 7612 (5th Cir. Tex. Apr. 28, 2017)

Community Caretaking Function Texas

Community Caretaking Function: Police May Stop without Reasonable Suspicion

By | DWI

Community Caretaking Function TexasIn November of 2015, we wrote about State v. Byram, a DWI case out of Tarrant County. In Byram, the 2nd Court of Appeals held that a “hunched over” passenger in a vehicle was not enough to invoke the police “community caretaking” function to allow the police to initiate a traffic stop without reasonable suspicion of a violation.  The 2nd Court reversed the DWI conviction and remanded the case back to the trial court. The State appealed this decision to the Texas Court of Criminal Appeals, which issued its opinion today.

When May the Police Invoke the “Community Caretaking” Function to Make a Stop or Detention Without Reasonable Suspicion?

Byram v. State (Tex.Crim.App. 2017)

In this case, State argued that the police officer was engaged in his “community caretaking” function when he pulled the driver over. The State contends that this was a proper exercise of police authority and that the primary purpose of the stop need not be to investigate any alleged violation.

Reviewing the facts in the light most favorable to the trial court’s ruling (denying the suppression motion), the CCA agreed with the State and explained its view on the Community Caretaking function:

Local police officers frequently engage in “community caretaking functions,” totally divorced from the detection, investigation, and acquisition of evidence relating to the violation of a criminal statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “As part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person—given the totality of the circumstances—would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). However, because the reasonableness of a community-caretaking seizure sprouts from its dissociation from the competitive enterprise of ferreting out crime, “a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non–community caretaking purpose.” Corbin v. State, 85 S.W.3d 272, 276-277 (Tex. Crim. App. 2002).

The Court went on to lay out a two-step test for determining whether an officer may properly invoke his community-caretaking function:

  1. whether the officer was primarily motivated by a community-caretaking purpose; and
  2. whether the officer’s belief that the individual needed help was reasonable.”*

*The standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver. Wright, 7 S.W.3d at 151.

In this particular case, the CCA held, “[the officer] saw a woman in a precarious situation, and acted reasonably to help her by first asking whether she was okay, and then conducting a traffic stop when his
question went unheeded. This is the sort of ‘sound, commonsense police work that reason
commends, rather than condemns.'”

Stop and Frisk Furr v. State 2016

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

By | Reasonable Suspicion, Search & Seizure

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

By | Reasonable Suspicion

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.

Passing in Left Lane in Texas

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

By | Drug Crimes, Reasonable Suspicion

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.

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.

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.