Saturday, April 29, 2006

Texas CCA: Consent voluntary even if you don't speak English

No habla Ingles? No problemo. You can still give consent in Texas when a cop asks in English to search your car.

Reversing the Tenth Texas Court of Appeals
this week, the Court of Criminal Appeals ruled that the appellate court erred in determining a search of Anibal Montanez's vehicle by the Deep East Texas Narcotics Task Force was not "voluntary" because Montanez could not speak English. Instead, declared the CCA majority, appellate judges are obligated to give "almost total deference" to trial judges as finders of fact - in this case, even when interpreting events they can see for themselves captured on videotape. Here's the majority opinion. Three CCA members dissented including Judge Lawrence Meyers, who wrote:
The issue in this case is identical to the issue we unanimously ruled on in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). The court of appeals did not err by failing to apply a Guzman standard of review because there is no issue of credibility and demeanor of the witnesses in this case. This is not a review of a cold record, rather it is the court of appeals watching the exact same videotape that the trial judge watched and then holding that the trial judge made an incorrect ruling. The trial judge was not in a better position to review the evidence as he would be in a situation of live testimony.

In a situation such as the one before us, when the appellate court has the exact same quality of evidence before it on review that the trial judge had before him in a suppression hearing, it is not necessary to view the evidence in the light most favorable to the trial court, and it is not necessary to give almost total deference to the decision of the trial judge. Satisfying a burden of proof necessarily involves weighing evidence. For a preponderance of the evidence, any evidence that tips the scales is sufficient. For evidence to be clear and convincing, it must be "highly probable or reasonably certain." (3) And, as we all know, the highest burden is beyond a reasonable doubt.

As we stated in Carmouche, "the nature of the evidence presented in the videotape does not pivot 'on an evaluation of credibility and demeanor.' Rather, the videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony. In these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because [the officer's] testimony may, by itself, be read to support the. . .holding." 10 S.W.3d at 332.
Well, that's a nice sentiment but apparently we can blind ourselves to the evidence - at least a majority on Texas' highest criminal court could. The Texas Constitution requires the state to demonstrate through "clear and convincing" evidence that consent was voluntary - but that doesn't mean much when judges can be convinced even when the driver doesn't speak English.

The ruling comes at a time of growing public concern over abusive search practices at Texas traffic stops. The Legislature last year passed SB 1195 which would have required police to obtain written or recorded consent to perform searches at traffic stops without probable cause, but Gov. Perry vetoed the measure.


Writer said...

We had a guest speaker in class this week, a police officer. He told us that Yes, we can refuse to have our vehicle searched. However, if he has reason to believe that something is fishy, it's within his right to ID us and have the vehicle impounded pending a search warrant. It's not an arrest, we would be free to go on foot. I did not ask if we would have to pay the tow truck.

My prof. says the we probably would and that this is inherited from English law in which the "king can do no wrong". Law enforcement has some prerogatives.

Although I'd like to stand up to a police search, I don't want to pay towing costs. Do you know if this is true?

Anonymous said...

Welcome to the world of lying cops! A cops job is to destroy whatever rights you might have from the constitution and lie to you in the process.

The cop might be able to get a drug dog to come to your location, but as far as the officer stealing your car and impounding it and leaving you standing on the side of the highway, while he finds a judge to grant him permission to search isn't how it works. There is nothing in the law books, under the definition of "fishy." Maybe the cop meant "probable cause?"

The cop that told you this must be a rookie cop or just down and out lied to you! Basically any word that comes out of a police officers mouth is a LIE! Never trust anything they say, it could cost you dearly! He scared you didn't he? He now has you believing that it's going to cost you money to get your car out of impound, just because you were "innocent" and refused him to search your car.

If the cop has "probable cause" and you refuse a search, there going to search you car right then on the spot! If the cop is just on an fishing expedition, he will try every lie and intimidate you to get approval to search your car.

1. Never talk to a police officer! There is no law that says you must carry on a conversation with a police officer or answer any questions in the state of Texas, except if the officer ask your name, address and date of birth. Any other question a police officer ask, just keep your mouth closed and answer nothing! That's your rights! Learn to use them!

2. Never consent to a search, but don't physically refuse a search or you might end up dead. Just keep repeating loud enough, so that the officer and his "recording" of the stop knows that you refused the search.

Just remember if the police didn't need your permission to search, they wouldn't be asking now would they?

Gritsforbreakfast said...

Shaine, If I don't get this exactly right maybe an attorney around here will chime in, but here's the conundrum:

If you refuse consent to search at a traffic stop, the officer must later be able to demonstrate articulable reasonable suspicion that justifies why he searched your car. That suspicion has to stem from something more than that you were nervous - e.g., if answers to his questions were contradictory, etc. If he can't show reaonable suspicion, the search was unjustified and should be thrown out under the law.

The problem comes with the 2001 US Supreme Court case Atwater v. City of Lago Vista, which held that, in the above case, the officer could arrest the motorist for the underling traffic offense, even if it's a fine-only class C misdemeanor like failure to signal a lane change, then search the car when it's impounded after you're arrested. (Gov. Perry vetoed legislation in 2001 and 2003 that would have fixed that.) So if an officer is willing to go that far - arrest you for nothing and take you into custody, wasting his time, jail space, etc., legally he can do it. In the VAST majority of cases most won't, and most supervisors would get pretty mad at an officer who wasted everyone's time like that, but the decision is legally within the discretion of the officer at the traffic stop.

That's why we should have required the written consent form. It would give motorists a formal way to say no without subjecting motorists to that kind of abuse.

It's true what the other commenter said, though: If an officer has to ask for permission, it means s/he has no legal authority to search without it. Just say no.

Writer said...

Thanks. I probably won't have a chance to be searched anytime soon as I am on a bike. If the situation arises again, I'll try my luck and refuse the search to see what happens.

Anonymous said...

Prior to an officer requesting permission to search your vehicle you must first be 'free to leave'. More often than not you will not be informed by the stopping officer that you are in fact 'free to leave'. You are deemed 'free to leave' once the stopping office returns your driver's license to you, even if the actual words are never spoken. In Texas you can be arrested for SOME class C, misdemeanor offenses. For an officer to arrest you for such an offense, typically the probable cause for the stop, AFTER being refused consent to search is unlawful and will most likely result in disciplinary action for the officer. If probable cause to search exists, no consent will be requested. There is simply no need for it. Some officers will request consent, even with existing probably cause, as a "buffer" against future complaints stemming from the search. eg. "I had probable cause to search AND was given verbal / written consent to search, you Honor." You can refuse consent to search. Again, you MUST be "free to leave" prior to a request for consent being made. If you are asked for consent and do not wish to have your vehicle search, refuse and ask the stopping "Am I free to leave?" There really shouldn't be any other answer given except "Yes." The majority of K-9 searches are conducted without ever having asked the driver / owner for consent. Once a K-9 search is initiated (from the moment a K-9 unit is requested by the stopping officer and begins a response to the location of the stop) you can only be lawfully detained for a "reasonable" amount of time. "Reasonable" is a subjective term open for interpretation by the Judge and jury presiding over your case. There are bad officers out there, no doubt. To say that "... anything that comes out of a cops mouth is a lie ..." is clearly a biased statement to make. The vast MAJORITY of officers out there are not willing to jeopardize their futures for your dime bag of weed or paraphernalia.