Probable Cause

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

In 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.

When 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.

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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.

You 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.

Back 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.