Texas Joint Possession Laws: Shared Drug Possession Explained

 (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.

Fort Worth Drug Crimes Attorneys | Keller Southlake Drug Possession Defense Attorneys

In 1996, the Texas Court of Criminal Appeals held in Rachal v. State, 917 S.W.2d 799, that when reviewing a trial court’s decision on a motion to suppress, an appellate court should look “only to the evidence adduced at the suppression hearing,” unless the “suppression issue is consensually re-litigated by the parties during trial on the merits.”

In a recent case in the CCA, Black v. State, the Appellant, who was convicted at trial of possession of methamphetamine with intent to deliver, argued on appeal that:

a trial court, once it has ruled on a pretrial motion to suppress, lacks the authority to “re-open” the suppression issue unless the defendant has “made an election” to do so by either subsequently re-raising the suppression issue himself or acquiescing in the State’s reintroduction of the issue at trial.

Appellant relied on the CCA’s holding in Rachal to support his position.  The State countered by arguing that the Rachal holding “speaks only to a limitation on what is available for appellate review of a trial court’s ultimate ruling on a pretrial suppression motion,” and not to the trial court’s authority to re-open a suppress motion.  The CCA agreed with the State.

In an 8-1 decision that relied largely on a 1993 Court of Appeals opinion (Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993, no pet.)), the CCA explained:

A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial.

In Black’s case, the CCA went on to hold that the trial court had the discretionary authority to reopen the suppression hearing, even mid-trial, to allow the State to present additional evidence.  To clarify that its current holding in Black did not disturb previous precedent, the CCA expressed a general rule and a corollary rule that explain what evidence appellate courts should consider when reviewing motions to suppress.

GENERAL RULE: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing – the evidence that was before the court at the time of its decision.

The exception to the General Rule, the CCA provided, was “if the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider” that evidence in gauging the propriety of the trial court’s ruling on the motion to suppress.

COROLLARY RULE: If at any point before the conclusion of final arguments at trial, the trial court should exercise its discretionary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ultimate ruling on the motion to suppress.

The CCA affirmed the holding of the 10th Circuit Court of Appeals which affirmed the trial court’s judgment.

Judge Meyers dissented, and is of the opinion that the trial court erred by reopening the suppression hearing without the defendant’s consent.

Does the 4th Amendment apply to a Cell Phone Search?

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person's cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.