Most 'contraband' found at Texas traffic stops results in no arrest; nearly 50k arrests for Class C misdemeanors in 2023

I had cause this morning to dig around in Texas' 2023 traffic-stop data, so decided to post a few high/lowlights.

This data, published annually in a cumbersome, user-unfriendly spreadsheet by the Texas Commission on Law Enforcement (see here), only includes arrests, searches, etc. at traffic stops.

After Sandra Bland's death, Texas changed its laws in 2017 to require greatly expanded reporting about police activitiy at traffic stops. Framing this as "racial profiling" data, as the press does, really undersells this dataset: IRL, it's a vast window onto traffic-stop activity with race as only one of many variables.

For starters, it's the only way we even know how many traffic stops are made, since most do not involve citations. Total stops increased nearly 200,000 from 2022 (196,252, or a 2.66% increase), with 7,387,419 stops last year overall. The number of citations written, though, declined by about 12,000 to 2,769,610. So statewide, Texas saw more traffic stops but fewer citations per stop, with officers ending the stop without a citation nearly two thirds of the time.

In 2023, 49,796 people were arrested at Texas traffic stops solely for Class C misdemeanors -- the lowest level criminal offense for which the maximum punishment is only a fine, not jail time. These arrests occurred either for violation of local ordinances or, more commonly, for the underlying traffic violation for which they drivers were stopped. People of course can be and are arrested for other Class Cs -- e.g., "camping" ordinances aimed at homeless people -- outside of the traffic-stop setting.

The number of Class C arrests at traffic stops has been declining (>64k in 2019), but this still represents nearly 50,000 Texans taken to jail for offenses for which the maximum punishment under law does not include jail time. (Before the Sandra Bland Act, police routinely contended this almost never happened -- now we know it's quite common.)

Drivers were searched at about 4.7% of 2023 traffic stops -- 346,846 times. Of these, 23% (80,348) were instances when officers asked for consent to search because they had no probable cause. 

Cops arrested suspects at traffic stops 201,149 times, or at about 2.7% of stops. Taking away the Class C arrests mentioned above and another 54,540 arrested for outstanding warrants (mostly related to unpaid traffic tickets), the rest (96,813) were for alleged violations of Texas' penal code.

But things get squirrelier when we look at contraband discovered. Out of those searches, officers supposedly found "contraband" of some sort 151,123 times, which would give them an impressive "hit rate" of 43.6%.

However, drilling down, we discover that in the overwhelming majority of circumstances when contraband is discovered, the driver is not arrested! That means the "contraband" either wasn't illegal or was an extremely trivial item. Sufficient contraband was found to justify an arrest only 54,422 times, for a hit rate of 15.7%.

Three quarters of the time arrests were made, it was for reasons besides finding contraband -- warrants, Class C violations, or other alleged crimes discovered during the stop.

Use of force in this data set has a few problems, with a couple of departments (Nolanville and Palm Valley PDs, for example) reporting use of force at every traffic stop, which is clearly an error. And the Galveston County Sheriff reported an extraordinary use of force rate -- 574 incidents out of only 12,840 traffic stops -- or 4.4%, which seems either highly unlikely (my guess) or hair-on-fire alarming, if true.

Among larger agencies with more consistent reporting, Houston PD continued to be the big outlier on use of force, recording 3,358 incidents out of 339,715 stops, or nearly 1% of the time (0.99%). That's a lot! The Department of Public Safety used force 2nd most often -- 1,318 times, but made more than 1.375 million traffic stops. So the RATE at which they used force was 1/10th that of the Houston PD. Even so, DPS only reported use of force at 473 stops in 2022, so that's nearly a 200% year over year increase!

While not at HPD levels, use of force rates at the Tarrant County Sheriff (at 0.52% of stops), Midland (0.35%) and Austin PD (0.26%) were also notably high.

Complaints were filed by motorists 4,077 times in 2023, which seems remarkably low. But people probably don't complain because it's pointless. Out of those 4,077, only 4 resulted in sustained complaints that resulted in officer discipline. Out of 7.4 million stops.

Proposed no-knock warrant ban not quite a ban, but a good conversation starter

Your correspondent testified yesterday on behalf of a couple of bills ostensibly banning no-knock search warrants, although a committee substitute would allow them if the police chief signed off. Reps Gene Wu and Jasmine Crockett brought the legislation. Best news coverage was out of Killeen, where this issue has taken on a life of its own.

While Grits testified in favor, the bill as proposed is about the most minimalist reform imaginable and won't either a) ban no-knock warrants or b) solve the problems associated with them. In particular, it doesn't require officers to "knock"; only to "announce" themselves before they enter. According to Rep. Wu's layout to the committee, this would be satisfied by yelling "Police" then breaking down the door.

That's generally what happens now. Cops sometimes contrast "no knock" warrants and what's euphemistically called "quick knock" entry (which typically involves yelling instead of knocking). But as a practical matter, this is a distinction without a difference. Entry happens simultaneously with the announcement and homeowners aren't given time to answer the door.

In testimony, I suggested several additions to the bill that would improve it greatly.

First, the Legislature could actually set stronger standards for when no-knock warrants are allowable. I argued no-knock raids should be forbidden for drug offenses. Prosecuting drug possession cases is not worth the lives of the Dennis Tuttles, Rhogena Davises, or Breonna Taylors of the world. Rep. Wu made the point that the risks of such raids aren't justified for an amount of user-level dope that could be flushed down the toilet. 

The Killeen Police Department last year changed its policies to end no-knock raids on narcotics warrants after raiding the wrong home and getting an officer killed. The Legislature should extend that policy statewide.

Worst case: If officers knock and a dealer flushes drugs down the toilet, the dealer's business has been disrupted, the drugs are destroyed, and everyone lives to see another day. The small chance of a felony conviction doesn't justify the risk, and using the tactic for drug crimes infuses racial bias into the process.

Such a change might just end the practice. I can't think of the last time I heard of a no-knock raid in Texas that wasn't executing a drug warrant. They aren't used for much of anything else. (Police unions countered they think such busts are worth risking life and limb; I wonder how many legislators agree?)

Similarly, Grits argued that possession of a legal firearm should not justify no-knock entry. Too many Texans own firearms for that to be an excuse. In the Harding Street raid in Houston that killed Tuttle and Davis and left a police officer paralyzed (still waiting on ballistic reports to determine whether this was caused by friendly fire), alleged gun possession was part of the basis for the no-knock approval. But a) the officer named a different type of gun in the warrant than they actually had, and b) their weapons were by all accounts legal.

Another reform that would help these situations a lot was actually suggested in another form in a different bill at the same hearing. 

HB 2631 by Matt Krause and Jeff Leach requires a pretrial hearing to determine the reliability of jailhouse informants for most serious, violent offenses. This mechanism would provide an added layer of accountability in the search warrant context as well. In the Harding Street raid, Officer Gerald Goines allegedly fabricated an informant and likely did so many more times before that, according to post hoc investigations. It was a lie: His "snitch" whose testimony he portrayed to the judge in an affidavit didn't in fact exist.

Grits would like to see the law require similar reliability hearings before signing off on no-knock warrants, even with chiefs' approval. Is it too much to ask to verify that an informant exists and gave verifiable intelligence?

Finally, any reform legislation on this topic should include a data-collection component. You can't manage what you don't measure and we know very little about how often no-knock or forcible entries occur, under what circumstances, how many people (including officers) are injured or killed, how many result in finding contraband or come up empty. We just have no information on the topic.

If Texas is going to pass the most minimalist restriction on no-knock warrants and otherwise allow them to continue, we should at least include data collection to illuminate these discussions in the future.

I'm grateful to Wu and Crockett for raising the issue, even if their bills don't go as far as Grits might prefer. The conversation has to start before reform can occur, and this hearing was at least a conversation starter.

For journalists: How to read a Texas racial profiling report, or, a case study demonstrating discrimination through police search patterns in Amarillo

Grits has started to see local reports on law enforcement racial profiling data from Texas traffic stops, but it's evident most local reporters don't understand what they're looking at. So they ask the department what it means, the chief soft pedals it, reporter files the story, bada bing, bada boom. That's how a local Amarillo TV station covered the report. Reporters seem to have gotten into a habit of doing the same simplistic story every year, even as the data has improved and much more can be gleaned. 

So Grits decided to perform a brief case study on what reporters can learn from a single department's racial profiling report. Grits has already examined the data at the macro level; now let's look at the micro, using Amarillo PD's report as an example. 

Black folks are slightly overrepresented among drivers stopped by police compared to the Amarillo population. A bit over 6% of Amarilloans are black while 11.1% of drivers stopped in 2020 were black. But because Amarillo PD patrols highways that cut through town and people who don't live in the jurisdiction drive on their streets, it's impossible to say with statistical certainty if the number of stops is disproportionate. To be clear, I believe it is, but I've been round this block for 20 years and there's no denominator to be had which doesn't pose some significant statistical problem.

This is what the Amarillo chief meant when he said it's impossible to tell if racial profiling occurred without a "better way of establishing the demographics of the driving public." He's right. Sort of.

But he's not revealing the full picture, and the reporter didn't know enough to demand he do so. If you're trying to identify racial disparities, look at search data, not overall stop rates. That's because for searches and arrests we have an incontestable baseline or denominator: the overall pool of people stopped.

In Amarillo, we do see disparity on this metric. Black folks represented 11.1% of people stopped but 18.3% of people searched. Black folks were also subjected to "consent" searches more frequently than their share of stops, making up 18.6% of all such searches. So Amarillo cops are both seeking and performing searches on black drivers more often than white ones.

The chief's concern about demographics of drivers vanishes once you drill down to this level of detail.

The number of people searched at traffic stops in Amarillo dropped by nearly half in 2020 compared to 2019. Interestingly, searches dropped more than stops, which declined but not nearly that much. Is this because of officers social distancing at stops, a change in policy, or some other reason? I can see dredging up a story on that topic on a slow news day. ;)

The majority of times Amarillo cops searched vehicles at traffic stops, they found nothing (56% of the time). That's pretty typical statewide.

Some data is easier to read on the TCOLE spreadsheet than in tables in a pdf file, particularly regarding contraband results from searches, where there are columns on the spreadsheet breaking out when contraband was found but no arrest was made that aren't in Amarillo PD's prose report.

Notably, though black people were more likely to be searched, Amarillo cops were more likely to find contraband when searching white drivers. Contraband was discovered 43% of the time white drivers were searched but just 38% of the time they went through black people's cars.

This is a key racial profiling indicator. If cops are searching black folks half again as often as their proportion among drivers but disproportionately finding contraband more often on white folks, that signals a discriminatory pattern.

This is one of the key, new calculations made possible by the 2017 Sandra Bland Act, but Texas journalists haven't figured out how to use the new resources available to them.

Searches of black people in Amarillo found contraband 35 times, which would not be too far out of line compared to the proportion of times they were searched (even though it's FAR greater than their proportion of Amarillo's population). Even so, 31 of the 35 times contraband supposedly was found in a black person's car, it was so minor they weren't arrested and were sent on their way. Couple that with the majority of arrests that found nothing, and that's a LOT of drivers subjected to pointless fishing expeditions.

By comparison, contraband was found on white folks in 105 searches, and the driver was arrested in 10 of those episodes.

From a journalistic perspective, I'd consider this a big story. Sure, the racial disparities in arrest rates aren't big. But if 90%-ish times when contraband is found, the driver is let go, what's the point of searching to begin with? Either the definition of "contraband" being employed is so broad as to include things that aren't illegal, or Amarillo cops are being awfully lenient when they find evidence of crimes. IRL, Grits suspects it's the former; this data pattern is a bit of an outlier but most agencies release the majority of drivers on whom contraband is found.

Statewide, black folks were slightly more likely to be arrested than white folks when contraband was found (38% compared to 33%), but the percentage for Hispanic folks was even higher (40%). Big gaps in those categories could mean one group is receiving lenient treatment and might be an avenue for local journalists to pursue.

Another important story from these reports: Amarillo PD arrested 115 drivers for a Class C misdemeanor traffic violations in 2020. With 215 total arrests at traffic stops, more than half of arrests at traffic stops were completely avoidable and likely represent pretext stops where the officer is fishing for some other crime. Those would cease if the Texas George Floyd Act became law. Statewide, Class C arrests were only 21% of the total, so this is happening more in Amarillo than elsewhere. What reporter wouldn't want a local news story linked to pending state legislation heard in the next few weeks? Well, it's available to you, if you know what you're looking at.

Notably, black folks made up just 11 of 115 people arrested for traffic violations at Amarillo traffic stops in 2020, so the Class C arrest ban in the Texas George Floyd Act isn't particularly a racial issue in Amarillo. Or black folks in Amarillo simply "consent" to searches before facing arrest, as noted above. Regardless, I'm pretty sure white Amarilloans don't appreciate being arrested for petty BS any more than black folks do. 

The maximum penalty for Class C misdemeanors is only a fine, not jail time. By arresting someone for a Class C and taking them to jail, police are inflicting a punishment more severe than a judge or jury could do.

Amarillo PD reported using force resulting in serious bodily injury at only two 2020 traffic stops. If local reporters don't know those cases are, maybe someone should look them up? Could be a story there.

There are many reasons for justice-beat reporters to examine Texas racial profiling data now that it's been enhanced via Rep. Garnet Coleman's 2017 Sandra Bland Act. In some instances, yes, reporters may find notable racial disparities: In Amarillo, for example, it appears black drivers are disproportionately searched compared to how often they're pulled over, are asked for consent to search more often than other drivers, and have contraband discovered less frequently than do their white counterparts.

But there are also news stories buried in these data beyond racial discrimination: Most immediately in relation to the Texas George Floyd Act, Class C misdemeanor arrests (both traffic and municipal ordinances), and use of force. It also might be informative to compare data from nearby jurisdictions. Often, as demonstrated in this example, differences in search practices from department to department are more significant or telling than the statistical differences among the races.

Not everything important or interesting in this data is about race. Indeed, the report answers basic questions few reporters ever consider: how many stops are made overall? How many of those people are searched? How many are arrested? How often is contraband found? Turns out, even overall traffic-stop numbers change significantly year by year. 

The decline between 2019 and 2020 stop levels is understandable, but what explains the near doubling from 2017-2018? Traffic stops were declining during this period statewide. If I were a local reporter in Amarillo, I'd be looking into that story, which is interesting irrespective of racial breakdowns. 

In a town of fewer than 200,000 people, both the doubling of traffic stops to the 2018 apex and the less-than-might-be-expected decline in 2020 could be significant. Digging around in the whys of it, combined with poking around TCOLE's statewide spreadsheet and a little traditional legwork, could generate many different types of local stories. This information isn't available from any other source.

Deep in the Weeds: Sandra-Bland data provides first-ever detail on scope of arrests, searches at Texas traffic stops

For reasons Grits fails to understand, neither reporters, academics, nor independent researchers have mined Texas' extensive "racial profiling" dataset extensively, though it's one of the most robust quantitative treasure troves of data on police-traffic stops of which I'm aware, anywhere. To a large extent, new data reported after 2017's Sandra Bland Act (we were given data collection in lieu of a policy ban on Class C arrests) gave us a big-picture overview of what goes on at Texas traffic stops for the first time at a level of detail even experts hadn't seen before.

Your correspondent needed to pull some data this morning for other purposes, so let's dump some interesting, previously un-reported tidbits here.

The Scope of Texas Traffic Enforcement

In 2019, Texas law enforcement officers reported making 9.7 million traffic stops in racial profiling reports submitted to the Texas Commission on Law Enforcement.

About 3.9 million of those stops, roughly 40%, resulted in citations. (For reasons no one fully understands, citation totals have been falling for more than a decade.)

Agencies reported someone was arrested at 306,962 stops, or at 3.2% of all traffic stops in 2019.*

A majority of those arrests (168,951) related to penal-code violations. In many cases, officers discovered contraband that triggered these arrests. Seventy percent of all contraband found was drugs or drug paraphernalia.

Avoidable Arrests

Roughly a quarter of arrests at traffic stops (73,911) were for outstanding warrants. These are folks truly suffering from the Debtors Prison Blues:

In addition, 21% of arrests at traffic stops were for Class C misdemeanors (64,100), mostly moving violations and a few arrests for breaking municipal ordinances. These are the arrests that would be eliminated under the George Floyd Act (and should have already been eliminated: similar language was pulled out of the Sandra Bland Act before it passed in 2017). Here's a breakdown of arrests by type:

Police reported using force at .6% of stops, or 60,034 total times in 2019, but use-of-force rates by department varied widely.

Why Do We Search?

In aggregate, Texas cops conducted searches at about one in 20 traffic stops statewide (5.1%), discovering contraband a bit more than a third of the time (34.5% of searches resulted in contraband "hits."). Roughly a quarter of all traffic-stop searches in 2019 (26%) were conducted based on "consent searches" in which the driver gave the officer consent to search. Another 35.8% happened because the officer observed probable cause; and about a third were "inventory searches" or "searches incident to arrest."

This data from the Sandra Bland Act casts new light on what previously was a largely opaque process illuminated only occasionally and momentarily by the release of bodycam video or civil litigation. But the plural of anecdote isn't "data" and until recently, we didn't have department-level numbers to provide insight into local, much less statewide traffic-enforcement practices.

Opportunities

As I look at this heretofore-unreported data, it reinforces the key opportunities for decarceral legislation aimed at traffic stops: The Sandra Bland/George Floyd Act language would eliminate 21% of traffic-stop arrests. Reducing the number of warrants under the Omnibase program would shrink another sizable chunk.

Finally, if drugs make up 70% of contraband found, Grits would expect most of that to be marijuana. So drug-related penal-code arrests could also go down when we see 2020 data because of the Great Texas Hemp Hiatus. (Grits would prefer to see marijuana straight-up legalized, but even tamping down arrests via the new hemp law is an improvement over prior practices.)

Traffic stops are a major, front-end driver of county jail admissions. So anything that reduces how often they result in incarceration also reduces pressure on local taxpayers and avoids adding people to the jailhouse petri dish who might be exposed to COVID.

The newest round of "Sandra Bland" data comes out March 1st, and this time, problems with racial categorizations are supposed to have been fixed. So reporters and researchers should mark that date on their calendar (some agencies have already begun to submit) and set aside time for a deeper dive when that information becomes available. There's a lot of good stuff there.

*A handful of small agencies reported that they arrested someone at every traffic stop. This was clearly an error and those agencies' arrest totals were excluded from this calculation.

What the jury didn't hear, against SWAT raids for routine search warrants, bail explainers, courthouse architecture, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Margaret Moore, Rosa Jimenez, and what the jury didn't hear
Weird comments from Travis County DA Margaret Moore on the Rosa Jimenez case in The Appeal: “There is an ultimate fact question that was resolved by the 12 men and women who actually saw all the evidence and heard opinion testimony,” Moore told The Appeal. “Everything after that is opinion by people who were not in that courtroom.” But here's the thing: The reason four judges have now said Jimenez is likely innocent and should be released is that the jury heard false, un-rebutted expert testimony that biased their view. When judges looked at all the same evidence, and also evidence to which the jury wasn't privy rebutting junk science in the case, they said Rosa didn't do it. So jurors didn't consider all the evidence. That seems disingenuous. (See prior Grits coverage, and listen to a segment on the case on the latest Reasonably Suspicious podcast, plus coverage from a Travis DA Democratic candidates forum over the weekend.)

Use of SWAT raids for routine search warrants creates needless risk
The practice of using SWAT tactics to execute routine search warrants continues to result in unnecessary deaths. A Waller County man was killed in a SWAT raid by police who wanted to seize a computer (someone else's) over alleged possession of child pornography. Can it really require a no-knock raid to seize a computer? This was unnecessary; the man's death was much more a predictable policy failure than it was an accident.

Fewer inmates beaten up more often at TDCJ
Recent inmate deaths at the hands of guards in Texas prisons highlights that use of force by staff has increased dramatically in recent years, reported the Texas Tribune, even as the number of inmates supervised declined and eight prison units closed.

Whistleblower gaining momentum in Sheriff's race
Liz Donegan, the Austin PD whistleblower who was removed as head of that agency's Sex Crimes unit because she wouldn't improperly classify cases as "cleared," is now running for Travis County Sheriff and, remarkably, earned the Austin Statesman's endorsement. Although Donegan was removed from her Sex Crimes post during Chief Art Acevedo's tenure, current Chief Bryan Manley earned ownership of the topic by blaming data errors on victims when the story came out. Him having her as a Sheriff-to-Chief peer would be deliciously awkward.

Bail explainers
Egged on by police, the Dallas Morning News has been blaming Dallas County DA John Creuzot for failures in the legacy bail system. But when they tried to do that in front of the City Council, staff gave everyone a primer on who is in charge of setting bail in Texas: Judges, not prosecutors. In Harris County, a judge demanded an explanation from prosecutors on why they blamed her in the press for a violent criminal's release when they'd never informed her of the details. Meanwhile, at the Paris News (TX, not France), a local reporter offered better explanatory coverage of the bail system than the Dallas News has yet.

Travis County judges dip toes in bail-reform waters
Travis County judges are saying they want to implement bail reform, including requiring defense attorneys at magistration, despite opposition from Travis County DA Margaret Moore. But the Texas Fair Defense Project and their allies say there would still be too much delay before release under the new proposal, and called for changes to the draft. Still, judges taking leadership on this is heartening news. They'd mostly dug in their heels before now.

No extra prosecutors for you, Kim Ogg
For the Harris County Commissioners Court, turning down District Attorney Kim Ogg when she asks for more prosecutors has become habit forming.

Houston crime lab to use disputed DNA mixture software
The Houston Forensic Science Center has begun using STR-Mix software for analyzing DNA mixture evidence. But last fall, a federal district judge in Michigan excluded such software from evidence after a "Daubert" hearing. DNA mixture analyses have been fraught with error for many years. Under the Michigan judge's ruling, based on recommendations from President Obama's forensics commission, STR-Mix software may be used when a) there are no more than three contributors and b) when DNA from the target makes up at least 20 percent of the sample. No word if HFSC intends to abide by those limitations.

Cherry picking data for scary headlines
The Austin Statesman issued a story with the headline: "Violent crimes with homeless suspects, victims went up in 2019, data show." The big news was that reported violent-crime incidents in the city increased by one percent last year, with a small increase attributable to the city's homeless population. What they didn't say was that Austin's population has been growing by 2-3% annually, so the rate likely decreased! Austinites were less likely to be victimized by violent crime last year than the year before. Why wasn't that the headline?

Defending Austin's federal courthouse architecture
The Department of Justice wants all federal courthouses to look like Roman temples and specifically criticized Austin's federal courthouse as an example of what they don't want. But I really like the federal courthouse in Austin. I was there recently for a hearing in the Rosa Jimenez case, then later to retrieve audio from the clerk. It's incredibly well-designed, with much more natural light and customer-friendly arrangement than most of them. Here's more on the Austin courthouse's architectural approach.

Fines and fees
Two essays on fines and fees for you:

• Marshall Project: The True Cost of Court Debt
• The Hill: Fees, fines, and the ability to pay

'Doing justice isn't left, it's right'
The Texas Public Policy Foundation's Marc Levin thinks progressive prosecutors are mis-labeled.

Why Police Should Be Required to Get a Warrant to Use Cell-Site-Simulators (aka, "stingrays")

Legislation heard this week in the Texas House Criminal Jurisprudence Committee, HB 352 (Blanco) would require warrants for Texas law enforcement to use so-called “stingrays” or “cell-site simulators” to track people's cell phones, and provide more transparency surrounding use of these devices.

So-called “Stingrays” or cell-site simulators are examples of relatively new surveillance techniques hovering at the bleeding edge of both cell-phone technology and Fourth Amendment jurisprudence. Because their use has been largely shrouded in secrecy and few clear precedents exist to model limits on this tech, the handful of law-enforcement agencies using it have until now operated in virtually a regulation-free zone.

Rep. Cesar Blanco, a third-term Democrat and former Navy intelligence office, understands signals intelligence better than probably any other legislator and is an excellent bill sponsor for this topic.

How Cell-Site Simulators Work
Cell-site simulators work by tricking your cell phone into believing it’s attaching to a legitimate cell-phone tower, which it “pings” periodically to make sure the phone is ready to make a call. This means that, when targeted users (or others in their vicinity) make a phone call, it’s routed through the cell-site simulator instead of the nearest tower. Representations by Houston PD at Monday’s hearing about the limited nature of the technology understated its capacity.

Cell-site simulators hijack and divert cell-phone signals from their commercial carrier’s network, making it more similar to a wiretap than a “pen register.” Some models of cell-site simulators allow full-blown wiretapping; others provide access to metadata from calls and callers; others may only provide information on signal strength and direction, allowing investigators to triangulate location with just a few measurements. It all depends on how much functionality an agency chose to pay for; the device is capturing the entire signal and can let investigators access any or all of it.

Movement toward ‘stingray’ warrant requirement
The US Supreme Court has not yet ruled on so-called “stingrays,” but several states already require warrants for cell-site simulator use with no ill effects. (Virginia, Washington, Utah, Minnesota, and California.)

On December 19, 2016, the U.S. House Committee on Oversight and Government Reform issued a comprehensive, bipartisan report on law-enforcement use of cell-site simulators and recommended legislation that would require “probable cause based warrants” to “ensure that the use of cell-site simulators and other similar tools does not infringe on the rights guaranteed in the Constitution.”

The US Department of Homeland Security established a policy of seeking a warrant for use of cell-site simulator technology with limited exceptions for exigent circumstances.

Finally, civil libertarians have persuasively argued that, when a cell phone inside someone’s home is targeted with signal interception via a cell-site-simulator device, it per se violates the Fourth Amendment right to security from unreasonable searches of one’s “houses, papers and effects.” (Traditionally, Fourth-Amendment protections inside the home have been much stronger than elsewhere.)

Secrecy breeds mistrust
At Monday’s hearing, police expressed fears that innocent people might be hurt if information from search warrant affidavits about how and when police used the technology ever surfaced. But search-warrant affidavits have been public records since the dawn of the Republic. The more significant concern is that law enforcement will use the technology unaccountably and secrecy will protect them.

Not only does the public deserve to know when the government is using invasive surveillance technology, undue secrecy creates systemic problems. In Houston, police have even kept prosecutors in the dark when stingray tech was used.

Texas legislators should extend the same warrant requirement mandated by the Supreme Court in US v. Carpenter to cell-site simulator devices. This shadowy practice has flourished for too long on the edges of modern technology and privacy law. HB 352 is Texas’ opportunity to begin to restrain and regulate it.

See prior, related Grits coverage.

Carpenter codification non-controversial so far

Rep. Cesar Blanco also filed a related piece of legislation, HB 353, which essentially codifies the US Supreme Court case US v. Carpenter requiring a search warrant for the government to access cell-phone location data held by wireless cell-phone carriers. (Readers may recall Grits' poetic ode to the case after the oral arguments.)

Unlike the stingray legislation, no one opposed this bill. There was a half-hearted effort by a cop speaking "on" the legislation to preserve the real-time vs. historic location information distinction that the Texas Court of Criminal Appeals tried to stake out in Sims v. Texas. But it's awfully hard to defend the idea that the government has a right to know where you are at any given time, in real time, without demonstrating probable cause. From the solitude of Judge Barbara Hervey's chambers at the Court of Criminal Appeals, one perhaps can make that strained argument without fear of recrimination. At a legislative hearing, nobody even tried. 

The reality is, even if they tried to do a Less-Than Carpenter Codification, this area of constitutional law is fluid and trending toward requiring more warrants for surveillance, not less. As such, Grits imagines that trying to short-change the warrant requirement could result in future federal court decisions rendering the language anachronistic. Rep. Blanco's approach is the wiser one.

Houston PD will end most no-knock warrants after botched drug raid

"The no-knock warrants are going to go away like leaded gasoline in this city," declared Houston Police Chief Art Acevedo at a town hall meeting after police killed two people (along with two dogs) and four officers were shot while serving a search warrant, reported the Houston Chronicle.

The chief said he no longer "sees the value" in such raids, which were criticized earlier this month in a Texas Monthly story. In the future, said Acevedo, HPD won't use the tactic in most instances, and in the rare cases it is needed, it will require his personal approval.

That would be a big deal if he follows through with it. Here's hoping the announcement isn't just a short-term media stunt. Indeed, one hopes the Texas Legislature might look at requiring chief-level sign off for all "dynamic entry" episodes. God knows, this is an issue statewide, not just in Houston.

SWAT-style raids aren't the only policy area where reforms are implied by this clusterf&#k. Grits earlier identified an open-records exemption that keeps police misconduct secret at HPD. And Acevedo declared the department would roll out a new body-camera policy in the coming weeks. Officers in the raid weren't wearing bodycams and the incident wasn't recorded.

Finally, reforms are needed in the murky world of undercover drug enforcement. There probably needs to be more internal monitoring of informants used to secure search-or-arrest warrants, including keeping records of whether their information holds up. Another needed change: informants should be afforded a right to counsel whenever police use them to make cases against others. That would both protect them from having their rights abused, and provide a barrier to police faking informant testimony to secure probable cause, as allegedly occurred in this case.

Why we should care about new TX racial profiling data

The other day, Grits reported on the new elements Texas law enforcement agencies must begin including as part of their racial profiling data, starting with reports that will be released March 1, 2019. Now, let's discuss some of the implications for publishing this new data.

Contraband, consent searches, and proving discrimination

There's a fundamental problem with trying to use racial profiling data to allege discrimination at traffic stops from a statistical perspective, because it's impossible to tell with certainty what denominator to use. Not everyone ticketed by a given agency is from that jurisdiction. So, for example, data from Austin PD's traffic tickets on the day of a UT Longhorn football game might capture drivers from all over the state. Or, a rural jurisdiction with an interstate running through it may ticket out-of-towners more often than locals.

As it turns out, this is an insurmountable data problem - there will always be something to nitpick, no matter which denominator one chooses, because of limitations in the data.

Searches, however, are a different story. We know the denominator there - people who are searched are a subset of the people stopped. Moreover, since we can isolate "consent" searches, where an officer must ask permission to search because they don't have probable cause, it's possible to drill down to measure outcomes (i.e., whether police found contraband) within the narrow category of searches where officers are exercising discretion.

Still, a key piece of data was heretofore missing: The results of the search! As of next year, all agencies will be required to report how often those searches find contraband, and what was found (in broad categories). 

Starting next year, we'll find out how often these consent searches are productive and whether the results are racially disproportional. Where that data has been available, frequently the result is that black folks were more likely to be searched but officers found contraband more often searching white drivers.

Austin PD, for example, implemented a requirement to obtain written or recorded consent to search after gathering data on contraband and discovering, in 2003, that police were seeking consent searches from black drivers more than five times as often as whites but were finding contraband on white drivers twice as often as black drivers who were searched.

A similar pattern was found in 2015 when DPS' racial profiling data was analyzed by a national expert, as reported in this excellent Austin Statesman feature.

Texas agencies performing traffic stops are already required to record when they search vehicles based on "consent" rather than probable cause. Some agencies use consent searches infrequently; others use them all the time. Knowing the outcomes will complete the loop, letting agencies truly measure discriminatory practices.

But these data are useful for more than just proving racial discrimination: They provide one of the only data-based windows we have into Texas traffic stops, and combined with the statewide dashcam rollout that was part of the original 2001 bill, give us a window in the 21st century into the day-to-day workings of police practices that was simply unavailable to prior generations. It's rather amazing to Grits that we know as much as we do about traffic stops compared to what was available when I began this work a quarter century ago.

These additional data basically complete the dataset we were trying to achieve when the bill first passed in 2001. Dallas state Sen. Royce West carried the bill; at the time your correspondent was Police Accountability Project Director for the ACLU of Texas, and worked hand-in-glove with then-E.D. Will Harrell on the legislation.

Politics being the art of compromise, we couldn't convince the Legislature back then to include data which would allow such precise measurements of discriminatory practices. The police unions couldn't stop the entire bill, but they could and did stop that. Sixteen years later, though, the Sandra Bland Act picked up that spare, in bowling parlance, and henceforth we'll be able to measure over-aggressive and discriminatory search practices at traffic stops much more easily.

Documenting arrests for Class C misdemeanors

After Sandra Bland's untimely death, a bipartisan push emerged to stop law enforcement from arresting people for Class C misdemeanors where the maximum punishment is a fine, not jail time. Last month, a call to eliminate such arrests was included in both the Republican and Democratic Texas state party platforms.

So it's notable that, on March 1st of next year, in the middle of session, for the first time agencies will publish data on how often they arrest people solely for Class C violations. The new form includes four categories of arrests:

11.1 Violation of Penal Code
11.2 Violation of Traffic Law
11.3 Violation of City Ordinance
11.4 Outstanding Warrant

Two of those - traffic laws and city ordinances - are Class C misdemeanors, so that means, during session, we'll get first-of-its-kind new information for agencies statewide that's directly relevant to what by then will surely be pending legislation.

When the Texas Criminal Justice Coalition last year analyzed four months of data from Harris County, it turned out 11 percent of all arrests were for Class C misdemeanor violations. There is reason to believe that that's a higher number than we may find elsewhere, because of Harris County DA policies where prosecutors must pre-approve Class B arrests but not Class Cs. But until we see the data, there's no way to know whether 11 percent is really an outlier, and by how much. 

Grits is genuinely curious; I can't wait to find out!

Some jurisdictions conduct fewer consent searches but use arrest on a Class C as a way to complete searches without consent. In Austin, for example, APD policy specifically allows search incident to arrest as an allowable reason for a Class C arrest. So this new data will also allow researchers to analyze whether Class C arrests are also disproportionately aimed at black drivers in order to conduct searches that were not consent based.

Use of force data

Finally, the new requirement to record how often traffic stops include police use of force that results in bodily injury provides data on an obscure, darkened corner of policing that no one thought about much before the advent of police dash-and-body cams and, more recently, the public's own cell-phone videos.

Now we'll get department level data on how often that happens, and agencies themselves will be able to drill down to analyze trends at the level of the individual officer.

You cannot manage what you can't measure, so Grits welcomes these first steps at understanding the scope of police violence at traffic stops in Texas. Unlike the data on searches, discussed above, new force data in the report arrives in an essentially embryonic stage. I think we're going to learn a lot, and predict the new force data will raise more questions when it comes out.

What is a catch? What is driving on the shoulder? Video leaves CCA judges and NFL refs parsing fine details #DezCaughtIt

With this being Super Bowl weekend, Grits can't help but observe that the debate at the Texas Court of Criminal Appeals over whether someone is driving on the shoulder greatly resembles the debate in the National Football League over what constitutes a "catch." (#DezCaughtIt)

The amount of hair splitting that's possible in interpreting both rules - abetted by instant replay in the NFL and dashcams on police cars - nearly beggars belief. The Austin Statesman offered rare coverage of the latest CCA case deciding matter.

In this instance, the Government-Always-Wins faction split (with Judge Barbara Hervey joining Bert Richardson's main opinion) and common sense prevailed, but not without a hot debate over whether driving on the "fog line" separating the road from the shoulder is the same as driving on the "improved shoulder," which is a criminal offense.

The Seventh Court of Appeals had ruled that a traffic stop based on a vehicle's tire touching the fog line was invalid, upholding the trial court's suppression of evidence garnered from the stop. Judge Bert Richardson's opinion endorsing that parsimonious view ruled the day, but Presiding Judge Sharon Keller, joined by Judge Keasler, offered a spirited, hair-splitting defense of the officer's decision to arrest. According to Judge Keller:

the trial court found that the traffic-stop video showed Appellee’s vehicle’s 'right rear tire (or its shadow) . . . to come in the proximity to and possibly touch the inside portion or more of the white line delineating the roadway from the improved shoulder . . . but not to extend past the . . . outermost edge of the fog line.'

And since she considered the line part of the "improved shoulder," she would uphold the stop and subsequent search. Judge Yeary offered another, suggesting the majority reached the issue improperly.

This was a debate about pretext stops. How pretexty can they really be? Does the pretext matter at all?  Can the excuse for the stop be complete bullshit, or will mostly bullshit suffice? In this rare pro-defense ruling, the CCA sided with judicial restraint and common sense. But among members of the court, it appears to have been a hard-fought victory.

'A Very Carpenter Christmas'

From the intro to the latest Reasonably Suspicious podcast, apropos of Christmas Eve, please enjoy 'A Very Carpenter Christmas,' a bit of seasonal verse in honor of US v. Carpenter - the case pending before the US Supreme Court which will decide whether the government must secure a search warrant under the Fourth Amendment in order to access personal location tracking data on individuals from their cell-phone service providers:

'Twas the night before Christmas and all through the home, 

The smartphones pinged cell towers, ne'er did they roam. 

Their location was fixed there all through the night, 

Could be proven in court with no warrant in sight. 

Then what to my wondering eyes did appear, 

But Chief Justice Roberts like a red-nosed reindeer,

Leading the way for SCOTUS to hone 

A warrant requirement for tracking your phone. 

On Roberts, on Gorsuch, on Sotomayor. 

Tracking us isn't what phones are for. 

On Thomas, on Ginsburg, on Breyer, on Kagan. 

Please give Fourth Amendment fans something to cheer again. 

And clearly explain, before it goes out of sight, 

Why not being tracked by our phones is a right.

Or, here's an audio excerpt from the podcast with your correspondent reading this sure-to-be-a-classic selection:


Merry Christmas, y'all.

Christmas and the Surveillance State: December Reasonably Suspicious podcast

Check out the December edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. Two great interviews this month - one with reporter Brandi Grissom Swicegood about the alleged abuse and turmoil at the Gainesville State School, and another with Peter Neufeld, co-founder of the national Innocence Project, regarding forensic-science reform. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:

Top Stories
US v. Carpenter: SCOTUS appears likely to require a warrant for cell-phone location data.

Interview

Brandi Grissom, discussing the staff-on-youth sex scandal at the Gainesville State School.

Home Court Advantage

Evaluating a sharply split decision from the Texas Court of Criminal Appeals upholding a first-degree felony drug conviction in which a police officer stole the product and laced sheetrock with less than a gram of cocaine to frame the defendant. (See prior Grits coverage.)

Interview

Peter Neufeld of the national Innocence Project, discussing forensic science reform.

Errors and Updates

• Forensic hypnosis
• Austin City Council rejected police union contract
• DNA mixture evidence

The Last Hurrah

• TDCJ prison understaffing and staff safety
• Death penalty use declining: A first for Harris County in 40 years
• Dallas pilot program de-escalates mental-health calls by sending medical staff instead of cops

Find a full transcript of the podcast below the jump.

Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:

Forensic commission can't address 'forensic hypnosis'
First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.

Maybe they'll listen if they Rangers tell 'em
Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.

Did TDCJ understaffing allow rape of prison teacher?
A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.

Coverup at TDCJ?
The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.

Executing non-killers
Something about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.

Paying for public defenders would reduce incarceration costs

Long-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public defenders reduce[s] the probability of any prison sentence by 22%, as well as the length of prison by 10%."

When your 'tiny house' means a tiny privacy footprint
Here's an unintended consequence to the "tiny house" movement: If your tiny house is on a trailer, your Fourth Amendment rights are likely diminished and the automobile exception will apply to searches of your residence, according to academic from Texas State.

Life without plea bargaining?
For the reading pile: India's court system doesn't do plea bargains. They've tried to implement them in the last decade and it's been a flop. I want to read this new academic article to learn more about the situation.

Texas AG: Carrying a gun doesn't justify 'Terry' frisks

Texas Attorney General Ken Paxton has signed onto an amicus brief aimed at the US Supreme Court to argue that carrying a firearm in a state where that's legal does not justify a "Terry frisk" based on officer safety. Here's the full text of his press release:

Attorney General Ken Paxton yesterday joined West Virginia’s amicus brief in Robinson v. United States along with Indiana, Michigan and Utah in the United States Supreme Court to protect against unjustified frisk searches occurring on the suspicion that a citizen is armed. The basis for this search places a burden on the Second Amendment right to carry a firearm. 

In 1968, Terry v. Ohio determined that a law enforcement officer may both stop and frisk an individual when “specific and articulable facts” lead an officer to reasonably believe criminal activity is occurring. This search is justifiable when the officer believes the detained individual “is armed and presently dangerous to the officer or others.” However, an en banc Fourth Circuit recently interpreted Terry to require only a reasonable suspicion that the individual is armed. This interpretation allows officers to justify a frisk search solely on the suspicion of possessing a weapon during a lawful stop, regardless whether there is a reasonable belief that the individual is dangerous. 

“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”

The issue to be decided in this case:

Whether, in a State that permits residents to legally carry firearms while in public, a law
enforcement officer’s belief that an individual stopped during a lawful Terry stop has a firearm on his or her person provides a sufficient basis — standing alone — for the officer to conclude that the armed individual is “presently dangerous” and thus allow the officer to lawfully engage in a warrantless “frisk” of that individual.

The implications are significant: Possibly carrying a gun is the main justification for Terry frisks, so if that's no longer sufficient, it could virtually end the practice.

Ken Paxton may be the most unlikely Fourth Amendment advocate imaginable, which may explain why he only reached these questions when a Second Amendment right was at stake.

Pretext stops subvert public trust, undermine rule of law

A prosecutor from Limestone County, seeking to justify what appears to be a classic pretext stop of a driver, in April posed this question for their colleagues on the Texas District and County Attorneys Association User Forum:

I have a suppression issue with a defendant coming to a stop at a red traffic light, then turns on her left turn signal. After a few seconds she then switches to the right turn signal, then proceeds to turn right. I was wondering if anyone knows if I can say she violated 545.104 for not "signaling continuously for not less than the last 100 feet of movement before the turn" or if the fact that she came to a complete stop at the red light negates the 100 ft rule. Thanks!

Another prosecutor from Brazos County chimed in to assure our protagonist that "you're 100% good" on such an interpretation. So, suggesting you'll turn left with your turn signal, changing your mind, then signaling and turning right is a criminal act, according to this myopic and uncharitable view.

The first prosecutor mentioned a couple of supposed case cites to support this position, but when Grits looked them up, neither seemed on point.

This law requiring drivers to signal 100 feet in front of a turn is a near-constant source of shenanigans by cops on the roadside. It's one of the more common "pretext stop" offenses - when officers are using a traffic stop as a phony excuse to stop and search drivers.

There's no driver out there who has never violated this law, in part because it's frequently an impractical and wrongheaded suggestion to follow.  E.g., if there's a business entrance or alley within 100 feet of the turn you're taking, it can be confusing to others to use the turn signal prematurely. And anyway, how good are you at estimating exactly 100 feet?

Moreover, who hasn't changed their mind about their destination, signalling one way then realizing some prior obligation meant you needed to go the other? (Considering the question, there's a stop sign a few blocks from my home - where one direction goes downtown and the other to my daughter's place - where Grits probably does that several times per month!) The driver wasn't accused of turning from the wrong lane, so the turn, if signaled, would have been legal from that spot.

A law that everyone routinely violates because of its arbitrariness and impracticality becomes a path for the government to bypass 4th Amendment protections. Police can simply follow anyone they choose for a few minutes and wait for a signal less than 100 feet before a turn. Then they get a supposedly legal if objectively dubious basis to conduct a roadside search.

This is the sort of behavior by cops and prosecutors which erodes public trust of law enforcement by treating the law as a tool to violate people's rights rather than an agreed set of rules clearly designed to protect them and keep everyone safe on the road.

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

The CCA, Judicial Activism, and Texas' Statutory Exclusionary Rule

One of my pet peeves with the Government-Always-Wins faction on the Texas Court of Criminal Appeals - which in this instance carried with it most of the rest of the court - arose in a recent ruling on the Fourth Amendment and Texas' statutory-based exclusionary rule: Bradley Ray McClintock vs. the State of Texas. To be clear, I am not a lawyer. But one needn't have earned a law degree to see that the GAW faction on the court clings to Texas statutes in the face of federal precedents whenever they're more likely to help the government, but then inexplicably grasps at federal justifications whenever they want to ignore the printed word of Texas statutes because they'd like this or that case to turn out differently (read: in favor of the government).

The ruling on Ex Parte Robbins - Texas' first-in-the-nation junk science writ - perhaps best exemplifies this trend toward using any means necessary to avoid relying on plain statutory language when the GAW faction thinks it will result in outcomes they don't like. But if you pay close attention, it happens all the time.

This outcome-oriented judging - the very definition of judicial activism - has plagued the court for years and was on full display this week. In the McClintock case, the CCA reviewed a lower appellate court ruling which held, relying on longstanding precedent, that evidence obtained without probable cause, even if a judge improperly issued a warrant, must be excluded. The CCA reversed the lower court, allowing evidence from the improper search to be used against the defendant.

Here's what you must know to fully grok this debate: Texas, in this area of the law as in much else, is different. At the federal level and in most states, the "exclusionary rule" - which allows evidence to be excluded if the state doesn't follow constitutional guidelines as articulated by the US Supreme Court - is a remedy created of, by and for judges in court rulings. It's modified by SCOTUS whenever they find it convenient, and mostly provides an excuse for federal judges to do whatever they want. Conservative critics of judicial activism have justifiably identified the federal exclusionary rule as an example of judges writing laws to empower themselves and the government instead of interpreting them to limit government power.

But in Texas, the Legislature enacted a statutory exclusionary rule in the 1920s which since then has withstood all manner of efforts to overturn it. Here, the exclusionary rule is not "judge-made law." It was written into statute by elected representatives and senators in plain language and baked into the DNA of the state's 20th century legal system.

This week, though, in McClintock, the Court of Criminal Appeals yielded state sovereignty on this question and diminished legislative authority in deference to federal judges' conception of the exclusionary rule, adding for Texas a new federal exception that has no basis in state law.

Alone in her dissent was Judge Elsa Alcala, apparently the last remaining judicial conservative on the court, if by that one means judges interpreting the words of the Legislature instead of casting about for justifications that support one's personal preferences for an outcome.

Alcala recognized that the lower court was correct in ruling that "the Texas good faith exception in Article 38.23(b) does not apply to this case." The majority opinion relied on a federal case (Davis) to apply a new, different, and more expansive definition of a good-faith exception than any Texas high court in nearly a hundred years has believed that our state statute allows.

The majority opinion (written by Judge Kevin Yeary, but joined by every other judge except David Newell, who did not participate) wondered instead whether the Legislature in 1925 might have meant by "probable cause" something "more than the common-place definition of the term," deciding that, in fact, the Lege had left sufficient leeway for the court to pretend it means whatever in Heaven's name they want it to mean in 2017. And he wanted to incorporate the broadened good-faith exception in Davis.

Alcala's complaint with Yeary and Co. was simple: "It is inappropriate to consider extra-textual sources to evaluate the meaning of the plain language in a statute that is not ambiguous." Bingo! That's certainly what the Government Always Wins faction would say if the textual argument swung their way. It's also what's been touted for five decades as the essence of conservative judicial philosophy, which the CCA majority has here abandoned.

The Court is supposed to go beyond the text of the statute for interpretation only when the language is ambiguous or would lead to absurd results, Judge Alcala observed. Citing to the Texas Constitution, she contended in contrast to the majority that, "Disallowing the results of searches of people's homes when there is no probable cause to support the search is not an absurd result, and, rather, it is the best way to ensure that people feel secure in their homes."

In the political realm, you hear conservatives complain bitterly about the federal, judge-made exclusionary rule. In some quarters, the issue has reached nearly Culture-War status. But at the Court of Criminal Appeals, the Government Always Wins faction loves the federal Exclusionary Rule, adopting every exception from it that they could remotely justify under Texas' more strict statutory language. The problem is, this most recent exception can't be squared with the text of the statute. You have to pretend that a case where the court already ruled probable cause did not exist can satisfy the requirements of a standard which mandates that it does. The black and white words on the page don't afford Texas state judges the wiggle room that federal judges have luxuriously allowed themselves.

Judge Alcala is fighting the good fight and at least demonstrating - if alone, and embattled - what it means for a state judge in Texas in the 21st century to retain a commitment to federalism, textualism, and to reject judicial activism. To her mind, "this Court has already held that there was no probable cause in this case under a correct application of the law in existence at the time of the search. In the absence of a warrant based on probable cause, the plain language of the statute precludes any consideration of whether the officer acted in good faith reliance on the warrant." It's that simple. But then you look at the outcome of the case, and obviously it is not.

Using similar methods under leadership of the Government Always Wins faction, the CCA over the years has muddied the waters surrounding Texas' statutory exclusionary rule to an enormous degree, allowing the ever-changing judge-created federal version to usurp our legislatively crafted one. Sadly, we just saw a 7-1 affirmation on the Court that this ignominious trend of judicial activism will continue forward into the future. And the only judge who seems committed to countering it has said she'll leave when her term ends in 2018.

Pretext-based policing and arrests for non-jailable offenses

Grits was on a panel yesterday at an event at the UT Law School with Austin's interim police chief Brian Manley on the subject of pretext stops and and arrests for non-jailable misdemeanors. Since I was on the panel, I didn't take notes, but wanted to recount one (to me) telling exchange.

Chief Manley opposed pending legislation by state Sen. Konni Burton to eliminate most arrests for non-jailable offenses, saying there may be situations where it is still necessary. Asked what those might be, however, he could only name one: The officer might suspect the driver of other crimes.

And yet, Grits replied, isn't that the definition of a pretextual detention? If the officer had probable cause to believe a more serious crime had been committed, they could arrest the person. If they had reasonable suspicion, they could conduct a search. But having only suspicion that is less than "reasonable," Chief Manley wants authority to arrest motorists anyway for a Class C misdemeanor, just in case, basically on an officer's hunch. Those on your correspondent's side of the issue don't believe officers should have that power: That's the crux of the debate.

When the session was over, Grits walked out of the room with fellow panelist House County Affairs Committee Chairman Garnet Coleman, who is a joint author to the House companion to Burton's bill. A gentleman approached to tell Coleman he had been a police officer in Florida for 20 years and arrests for non-jailable offenses were verboten there under the state constitution. That limitation had never prevented him from doing his job, he assured the chairman. He predicted Texas cops would experience growing pains during the transition if such arrests were banned because they're so accustomed to using that extra leverage against people, but assured the chairman that it's perfectly possible to perform policing functions without it. Here's hoping Texas gets to find out.

On the failures of Texas' eyewitness ID reform, when innocent people plead guilty, pondering immigration policy, and other stories

Here are a few odds and ends to clear Grits' browser tabs of brief items which merit readers' attention:

Report confronts sexual assault in Texas prisons
Grits will have more on this soon, but for now here's the link to a new report from the Texas Association Against Sexual Assault and the Prison Justice League on sexual assaults in Texas prisons - one of the first in-depth looks at the issue since Texas agreed to comply with the federal Prison Rape Elimination Act. MORE: See coverage from the Houston Press and the San Antonio Current.

TX eyewitness reform didn't stop suggestive IDs, photo arrays
In a recent dissent, Judge Elsa Alcala effectively showed why and how Texas' eyewitness identification reforms have failed to stop convictions based on biased lineups, in this case where the suspect was the "sole one in the photo array matching the physical description of the shooter." See the majority opinion, which mostly relied on outdated criteria from older cases that predated modern best practices in this area.

Concerns over cell-phone location data legitimate, non-partisan

In Texas, lots of folks were concerned about privacy of cell-phone location data long before the recent presidential election, including loads of conservatives. So I hate to see the push for federal cell-phone privacy legislation cast in terms of fear of Donald Trump. Grits wasn't any more happy when it was the Obama Administration pushing to maximize government surveillance powers.

When innocent people plead guilty
Reported AP, "Last year, 68 out of 157 exonerations [nationwide] were cases in which the defendant pleaded guilty, more than any previous year. That's 43.3 percent, for those keeping score at home.

'Detached from reality' Crime and public perception
Following up on their own poll, discussed here on Grits, the Pew Research Center explored why "Voters perceptions of crime continue to conflict with reality." Gallup over the years has continuously found that voters perception of high crime is "detached from reality." At Vox, German Lopez has explored this odd and persistent phenomenon. The Brennan Center has found that headline mentions of murders in newspapers did not decline along with the volume of murders themselves. In this election we saw that misperception brazenly exploited by the President-elect, who went around claiming violent crime was at a 45 year high when the opposite was true. By the time he trotted that one out, he had told so many flat-out fabrications that the media''s fact checking seemed tired and pro forma, as do hubristic pretensions that media will now solve misconceptions they've actively created.

Okie Governor leading by example on criminal-justice reform
Read Oklahoma Governor Mary Fallin on the recent election and criminal justice reform. She's saying the sort of things while in office that Texas Gov. Rick Perry waited to embrace until after his departure. Voters in her state just overwhelmingly voted to reduce penalties for low-level drug possession from a felony to a misdemeanor. The Lone Star State should follow suit, or Oklahoma may soon supersede the Texas GOP when it comes to Right on Crime bona fides.

Pondering immigration, walls, symbols, and public opinion
Here's the problem with the Trumpian plan to deport "criminal" immigrants: After years of the Obama Administration aggressively enforcing their "Secure Communities" program - a ham-handed operation which never worked well and of which Grits was never a great fan - there aren't nearly 2-3 million of those left to deport. (Immigrants commit crimes at much lower rates than citizens. Foreign nationals account for 16 percent of Texas' population, for example, but only eight percent of arrests.)

Will "I'll do what Obama did," plus spending $10-20 billion (or whatever figure) on an American Great Wall, be enough to satisfy voters spurred to the polls by anger over Latin American immigration? Perhaps rebranding the policy as Republican will allow pols to declare victory and stop fighting, the way Texas Rs seem ready to declare victory on border security and spend the money on something else. The campaign is over now and governing requires confronting reality. Grab some popcorn and stay tuned.

In Texas, that reality includes the fact that undocumented immigrants make up more than eight percent of our active labor force. When push came to shove, while some Texas Rs have indulged in nativist rhetoric during campaigns, most have always understood and respected core interests of the business community when governing. At first blush, that seems to be the approach the president-elect will take: Talk big, wait for public discord to die down, then declare victory without really having changed anything and move on. While essentially frivolous as a border security suggestion, perhaps a "Great Wall" will serve a more important purpose as a tangible, lasting symbol. Who knows? Maybe that's what's necessary to sell Obama's immigration policy as a Republican solution that the president-elect's still angry base will accept.