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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.

State v. Kerwick, Terry Stop

“There They Are Right There!” – A Defective Terry Stop

By | Investigative Detention

State v. Kerwick, Terry StopThe propriety of a Terry stop (a.k.a. investigative detention) can be, and often is, a hotly contested issue during pre-trial suppression hearings and on appeal.  I’ve written about the legal standard required for a Terry stop many times, but one can never get enough Terry law, so here it is again, complete with case citations, as recited by the 2nd District Court of Appeals (Fort Worth):

A temporary or investigative detention is a seizure.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d).  An investigative detention occurs when an individual is encountered by a police officer, yields to the officer‘s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Because an investigative detention is a seizure, reasonable suspicion must be shown by the officer to justify the seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492.  “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 2011 WL 2555712, at *2.  Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

In State v. Kerwick, a recent case designated for publication by the 2nd COA, the Court was called upon to consider whether the trial court abused its discretion when it suppressed the evidence of a defendant’s warrantless arrest.  The arresting officer had been dispatched to the Stockyards after a brawl was reported outside a bar.  When he arrived, an unidentified person pointed at a group of people in a car and said “There they are right there.”  The car was pulling away when the officer approached on foot and ordered the driver to stop.  The driver was later arrested for DWI.

The Court of Appeals agreed with the trial court (or at least found that the ruling was not outside the reasonable zone of disagreement) that the officer did not have “reasonable suspicion” to justify the Terry stop when the only facts he had were that a brawl was reported and an unidentified person said “There they are.”

While I agree that the officer did not have reasonable suspicion to justify the stop in this case, I think this case really hinged on the trial court’s initial ruling.  The standard of review (abuse of discretion – outside the zone of reasonable disagreement) is very deferential and had the trial court ruled for the State, it would not be hard to imagine the appellate court upholding that ruling as well (with the exact same facts).  Perhaps an obvious observation on my part.

Texas Consensual Police Encounter Law

Perpetuating the Fiction of the Consensual Police Encounter

By | Consensual Encounter, Criminal Defense

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

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

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

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

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

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

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

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

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

The CCA concludes:

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