- 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.
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.Grits expects prosecutors immediately to appeal this to the Court of Criminal Appeals.
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.