Tuesday, October 18, 2016

Pop Quiz on Fourth Amendment and the criminalization of the normal

Pop Quiz from the Texas Seventh Court of Appeals: Which of the following are NOT an indicia of drug trafficking under Texas law?
  • Breathing.
  • Having two hands.
  • Driving a clean vehicle.
  • Looking at a peace officer.
  • Looking away from a peace officer.
  • A young person driving a newer vehicle.
  • Driving in a car with meal wrappers.
  • Driving carefully.
  • Driving on an interstate.
The answer, according to a majority opinion from the Seventh Court of Appeals written by Chief Justice Brian Quinn, is that only the first two cannot be considered suspicious behavior that justifies an investigative detention, according to Texas courts. A dissent by Justice Campbell scolded his colleagues for failing to defer to the trial judge and "assume the court made implicit findings of fact supporting its ruling that are supported by the record." But the majority opinion is quite a read, lamenting that "most anything can be considered indicia of drug trafficking to law enforcement personnel." It continued:
Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W. 3d at 896 (observing that "[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. And, sometimes, some even engage in innocent activity.") The problem comes with distinguishing between innocent conduct indictative of nothing but everyday activity and innocent conduct indicative of a crime. That is the hurdle we once again face here, and it is made difficult to clear due to the unasked questions by the State about the 'knowledge, experience, and training" of its sole witness.
The marijuana smuggling case (Ramirez-Tamayo v. State) involved a Spanish speaking driver whose detention was prolonged after he was given a warning ticket so the deputy who made the stop could have a drug dog run around the car, which resulted in discovery of marijuana. The court of appeals reversed the trial court and ordered the marijuana suppressed.

The prosecutor association's case summary writers hated the opinion but lamented that, "Based upon the shortness of the hearing at trial, and the facts of this case, the result may not change if this case is reviewed by the Court of Criminal Appeals." If I were them, I'd be more optimistic. These days, prosecutors seem to own 4 votes on the CCA in non-death cases walking in the door. Typically, the state only has to pick off one vote from the others to win.

Regardless, Justice's Quinn's open criticism of too-broad reasonable suspicion categories justifying excessive roadside detention is well deserved. The opinion insists that officers not just list otherwise legal activities and call them suspicion but explain why those legal activities suggest illegality.
In effect, the process utilized by the deputy to justify the continued detention of appellant likens to that used in profiling. Again, the articulable facts he recited as constituting reasonable suspicion are not inherently criminal. To give them significance, the deputy searched his "knowledge, training, and experience." The breadth of that "knowledge, training, and experience" was explained by no one. Nevertheless, from it he formed various opinions about what does and does not look like suspicious activity. ... That is problematic since the opinions appear over generalized in some instances, e.g., nervousness,  the use of masking agents, and the presence of a rental vehicle. In others, they may have been based upon facts different from those at bar, e.g., windows that could not open indicating the presence of contraband. While in others, they may have simply been derived from his personal viewpoint, e.g., driving 75 mph on an Interstate with windows down.

Each indicia at bar could have significance or not. It was dependent upon the State and deputy to explain why they did. Merely offering conclusory opinions derived from an unknown data base does not instill  us with confidence about their reliability and accuracy. As stated in Ford v. State (citation omitted), "[m]ere opinions are ineffective substitutes for specific, articulable facts in a reasonable suspicion analysis." Without proof of their substantive reliability they are not enough to raise the totality of the circumstances before us to the level of reasonable suspicion.
 Grits expects prosecutors immediately to appeal this to the Court of Criminal Appeals.


Stan Brown said...
This comment has been removed by the author.
Stan Brown said...

I loved Chief Justice Quinn's opinion in Ramirez-Tamayo, and downloaded into a couple of pending appeals I have going. I also liked your comment about "conclusory" statements. The main case on conclusory statements by an officer regarding stopping a vehicle is Ford v. State, 158 S.W.3d 488 in which the stated reason for the stop, following too close, was merely conclusory and therefore not enough. That opinion, surprisingly, was authored by Judge Keasler, who generally has voted with P.J. Keller and Judge Hervey. On the other hand, one of the worst CrApp opinions, retired Judge Price, was, in my opinion, Woods v. State, 956 S.W.2d 33, in which it was held that the “as consistent with innocent activity as with criminal activity” construct is no longer a viable test for determining reasonable suspicion for temporary detention. That holding should be re-examined. Keep up the great reporting!!

Jimbo S said...

Stan, I agree with much of what you say, but I've never understood the dislike of Woods. After all, that case actually brought Texas in line with Supreme Court precedent (Sokolow, I think, but I could be wrong), and the reasoning does have logical force. I mean, the mere fact that an activity is innocent by itself should not prevent an officer from being able to investigate. Heck, that was the whole point of Terry v. Ohio, right? That according to one interpretation those guys were window shopping at jewelry stores on Euclid Ave. But to a trained cop, it looked like they were casing the place.

DLW said...

Jimbo, it looks like you are arguing that the Cops in Terry had a hunch and that hunch turned out to be correct. That's the problem with the "in my training and experience" cases and Ramirez-Tamayo recognizes the issue. 4th Amendment suppression issues have always been hampered and clouded by the fact that some evidence of crime was found and we have a statistical record in the form of hearings and appeals. We don't have accurate records of the number of times that Law Enforcement simply guessed wrong, put a Citizen through a seizure and a search and came up with nothing.

Jimbo S said...

DLW: No, I'm sorry, I didn't mean to give that impression. I was just trying to make the point that the officer stopped and frisked Terry and his friends in response to activity that (by itself) looked innocent. In fact, the holding in Terry is that a cop does need more than a hunch and that's exactly what the cop had. One may disagree with it, but it's been the law for nearly 50 years and it might just be the least bad solution to the problem of how does a cop investigate something that looks suspicious but isn't clearly a criminal act.

Anonymous said...

Reading your article makes me wonder if you actually read the opinion in this case before writing this...

Justice Quinn actually wrote a very defense friendly opinion and pointed out that none of those things in your bullet point list indicate criminal activity. He took the Deputy's articulable facts and went one by one dismissing the proposition that they indicate any need for a prolonged detention, which is almost the opposite of what you claim this opinion says. While the Court of Criminal Appeals has routinely stated that this sort of divide and conquer approach to a totality of the circumstances argument is wrong, I would have thought that Defense attorneys everywhere would start framing this case on their walls due to his obvious disdain for these type of prolonged detentions, so it's quite humorous to me that you've misinterpreted this case in the way that you did. But I suppose reporting the facts that were actually in the opinion wouldn't have made as interesting of an article here...

Gritsforbreakfast said...

9;07, i think you're misinterpreting my blog post. I fully understand this was a defense-friendly opinion and agree with it. Nothing in this post implies otherwise, that I can tell. Please point to what I wrote that made you think I was criticizing the majority opinion. Either I was unclear or you are confused.

Anonymous said...

"The answer, according to a majority opinion from the Seventh Court of Appeals written by Chief Justice Brian Quinn, is that only the first two CANNOT be considered suspicious behavior that justifies an investigative detention, according to Texas courts." - this is backwards.
Justice Quinn pointed out all of these things listed in your bullet points and wrote that he feels they DO NOT equate to suspicious behavior, yet your post, the way its written, says that he only feels that the first two are not suspicious factors...

Jimbo S said...

Hey, 3:41, I don't wanna state the obvious, but I don't think you're reading the opinion right. Quinn is pointing out that all of those factors (except the first 2) have been employed by courts to find reasonable suspicion. He's not celebrating it. He's stating it as a fact.

walt said...

It has long been a frustration that Officers are treated like "experts" but are free to make nonrebuttable,unsubstantiated claims or conclusions. If you ask for a training manual or proof of school attendance (e.g., Desert Snow or Black Asphalt), they can't produce it. If you ask if the training was just a rehashing of war stories, they answer that their conclusions are "scientific". So you ask, them questions concerning reliability, percent accuracy, false positives or false negatives and they don't know what you are talking about.

There's an adage that everything stated after the phrase, "in my training and experience" is made up.

I think J. Quinn was tired of reading (and affirming) decisions that are without any foundational authority in the record other than the Officer's opinion.

In short, if this get's past a PDR, every defense attorney in Texas should have this opinion in their trial notebook.

Gritsforbreakfast said...

@3:41, Jimbo S is right. You've misread Quinn's opinion.

Mark M. said...

I feel very bad about the almost-certain PDR grant. The resulting opinion can only dogpile upon the obscenity of anti-accused vagueness manifested in the derichsweiler opinion.