Drug Crimes

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances; and
3. The purpose and flagrancy of the official misconduct (in making the arrest).

In May of 2012, in State v Mazuca, the Texas Court of Criminal Appeals considered the proper application of the "attenuation of taint doctrine," not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee's driver's license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008. 2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date. 3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA's application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that...

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee's outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee's pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

The opinion in this case seems a logically disconnected from the ultimate outcome. Apparently, some of the judges agree.  Here's what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority's analysis of the weight of the Brown factors may be correct, but the result discounts the trial court's findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee's name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should "afford almost total deference to a trial court's determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses' credibility and demeanor" and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

If you were the subject on an unlawful arrest on a drug crimes case, contact the Fort Worth, Texas drug crimes defense lawyers at Barnett Howard & Williams PLLC today.  (817) 993-9249.

In Abney v. State, the Texas Court of Criminal Appeals considered whether an officer had reasonable suspicion to initiate a traffic stop when a vehicle was driving in the left lane of a road without passing.  There was a road sign that prohibited driving in the left lane without passing, but it was located over 20 miles away from where the Appellant was pulled over.

As tends to happen, the police officer found marijuana during the traffic stop. At trial, and on appeal, the Appellant claimed that he did not commit a traffic violation because the road sign was not anywhere near where the stop occurred.  The trial court and 5th Court of Appeals (Dallas) overruled this argument.  The CCA, on the other hand found it meritorious.

The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a "left lane for passing only" sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.

The CCA reversed the Court of Appeals and held that the officer lack reasonable suspicion to justify the traffic stop.  The evidence should have been suppressed at trial.

United States v. Gonzalez-Garcia, 2013 U.S. App. LEXIS 3366 (5th Cir. Tex. Feb. 15, 2013)

A federal agent saw Appellant walk out of a house under surveillance as part of a drug investigation.  The agent approached Appellant, handcuffed him and placed him in his police vehicle.  Without advising Appellant of his Miranda rights, the agent asked him if he was guarding a drug-house and if there were drugs in the house.  Appellant replied, "Yes" to both questions and then requested an attorney.  The agent asked Appellant for consent to search the house, which Appellant granted.

The agents found over two thousand kilograms of marijuana in the house. The district court suppressed Appellant's admissions that he was guarding marijuana in the house because they were obtained in violation of Miranda, which the government conceded on appeal.  However, the district court refused to suppress the marijuana recovered from the house.

First, Appellant argued the marijuana should have been suppressed because the agent obtained consent to search from Appellant after he requested an attorney.  Second, Appellant claimed the agents' use of his admissions, which were later suppressed, automatically rendered his consent to search involuntary. The Court disagreed.

In Edwards v. Arizona the Supreme Court held when an accused invokes his right to counsel, he is not subject to further questioning until counsel has been made available to him.  However, a violation of the Edwards rule does not require suppression of physical, non-testimonial evidence.  Consequently, even if the agent violated Edwards when he asked Appellant for consent to search the house, that violation would not justify suppression of the marijuana, which is physical, non-testimonial evidence.

Next, the court held Appellant's consent was not automatically rendered involuntary because his Miranda rights were violated.  Such a rule is not consistent with the multi-factor approach courts must use when determining voluntariness.  Using that approach, and considering the Miranda violation, the district court found Appellant voluntarily consented to the search of the house.

 (14th Court of Appeals) April 3, 2012

I observed a traffic congestion in the inside westbound lane [on Interstate 10 in Waller County].  Traffic volume was moderate.  I inspected further and observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie limit of 65 miles per hour and Impeding Traffic.  I paced the vehicle, which was traveling at approximately 52 miles per hour . . . . I initiated a traffic stop of the vehicle.

This traffic stop led to the search of the vehicle and the seizure of marijuana.  The driver of the vehicle was later convicted of Class B misdemeanor possession of marijuana.  The primary question on appeal to the 14th District Court of Appeals (Houston) was whether a vehicle traveling below the speed limit necessarily creates reasonable suspicion to initiate a traffic stop.

The appellate court explained:

Under Texas law, a vehicle "may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law." Tex. Transp. Code § 545.363(a). "Slow driving, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded." Tex. Dep't of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.--San Antonio 2008, no pet.).

Noting that the only evidence at trial on this issue was the police officer's report which contains a conclusory statement that appellant was "impeding traffic," but no articulable facts (other than the speed of his vehicle), the court held that the trial court erred in denying appellant's motion to suppress.

The dissent believed that there were enough facts in the record to support the stop, and would have upheld the trial court's ruling.

Analysis: While traveling below the speed limit may indeed be enough to get you pulled over, the officer must indicate, either in his report or on the stand at trial, what specific articulable facts led to the reasonable suspicion that you were "impeding traffic" such that his stop was justified. Short of that, it is an unreasonable stop under that law.

The District and County Attorney's Association was not too pleased with this opinion. Here is its analysis:

This is the kind of decision that drives me crazy. The officer testified that the defendant was "impeding traffic" based upon his slower speed. The trial court found and ruled in his favor. Should not the trial court's ruling be upheld? Unfortunately, this holding is line with a similar decision of the Court of Criminal Appeals in which the court held that the State failed to prove that a defendant committed a traffic violation of following too closely because all that the officer testified was that the defendant was following too closely. I suppose that when an officer testifies that the defendant was "impeding traffic," you should then ask the officer, "In what observable way was the defendant impeding traffic?" Were cars having to constantly go around him? Were they honking? Still, a trial court's ruling should be upheld if it is supported by the record. Maybe the Court of Criminal Appeals will review this decision, especially since there is a dissenting opinion.

What does it mean to use a "Fraudulent Prescription Form" in Texas?

The State of Texas charged and convicted Billie Jean Avery of attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented at trial, however, revealed that the defendant actually used a legitimate prescription form, but that she forged some data on her prescription information in an attempt to obtain stronger pain pills.

In her appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that she could not be convicted of using a “fraudulent prescription form” when the prescription form she used was legitimate.  The Court of Appeals agreed and acquitted her of the offense.

On discretionary review, the Texas Court of Criminal Appeals affirmed Court of Appeals’ affirmed judgment of acquittal. In a unanimous opinion, the CCA explained:

Just as tax information should be recorded on a tax form to create a competed tax return, so too prescription information should be recorded on a prescription form to create a completed prescription.  The information that is written on the form is not the form itself…[W]e hold that “prescription form” refers to a pre-printed form designed to have prescription information written on it.

This was a case of a simple charging error by the District Attorney's office, but it goes to show that attention to detail can win the day.

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