Texas Criminal Lawyer Blog

Many cars are searched by Texas Department of Public Safety Troopers on Texas highways and interstates. Most are the result of stops for various traffic violations, which escalate to search of the vehicle by state troopers or local deputies. Many of these searches are by "consent" -- after the officer becomes suspicious that some illegal activity may be taking place. Some of these searches are legal, some not. How do we know ?

The answer to that question is: it depends, always, on the specific facts of each case.

An officer may conduct an investigative detention by stopping and detaining a person in order to determine the person's identity, reason for being in the area, or some other such inquiry. The officer does not usually need to have probable cause to investigate potential criminal activity, if he can give specific facts which support his reason for the detention. Legal terminology for this is referred to as "specific and articulable facts", which, together with "rational inferences" from those articulated facts, would warrant the detention.

A hunch, suspicion, or even good faith belief of the officer, without such articulated facts, is never sufficient justification or excuse for an investigatory detention. Properly articulated facts justifying a detention or stop is referred to as "reasonable suspicion". Without such "reasonable suspicion", any evidence or contraband seized should be suppressed, or thrown out, by the reviewing court.

For consent to be valid, it must be free and voluntary, and must be obtained from an individual authorized to consent to a search. For instance, if a passenger seated in the back seat of the car who has no ownership rights to the vehicle tells a trooper its o.k. to search, that's not consent. Free and voluntary means just that. A coerced, or forced, consent is not valid.

Six factors are often cited to be used in considering voluntariness: 1) whether the custodial status is voluntary; that is, was the person free to leave? 2) were there coercive police procedures present? 3) the extent and level of cooperation with the police; 4) How aware the person was of his right to refuse consent; 5) Education and intelligence of the person giving the consent; 6) the person's belief, if any, that no incriminating evidence will be found.

These factors are taken into consideration by the courts on a case by case basis. And don't ask me how they decide factor number 6!

Posted by Michael J. Brown | Permalink | Email This Post

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West Texas is a vast, sparsely populated area west of Fort Worth to the north and San Antonio to the south. The region's major cities are Amarillo, Lubbock, Midland-Odessa, San Angelo, and Abilene; only the first two have populations over 100,000 people. The further west one goes, the more the population thins out.

Many counties out west have populations of less than ten thousand, and some have fewer than that. Mentone, the county seat of Loving county, has fewer than a hundred souls, making this the least populated county in the state.

I have offices in Snyder, which is an hour and a half drive from Lubbock, Abilene, San Angelo, and Midland. Interstate 20 passes through 30 miles to the south, on its way from El Paso to Shreveport, La, a distance of over 650 miles.

Further south, Interstate 10 crosses the state from its intersection with I 20 east of Van Horn and passes through Pecos, Crockett and Sutton counties, all the way east to the Texas/Louisiana border near Beaumont, a distance of well over 800 miles. I once served as an assistant District Attorney for a sprawling Judicial District extending from Fort Stockton in Pecos County to Sonora, in Sutton County, over 150 miles to the east.

Continue reading " Wanderings of a West Texas Criminal Lawyer " »

Posted by Michael J. Brown | Permalink | Email This Post

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A Federal Judge in the Western District of Texas has recently limited the right of Texas state troopers to use the presence of religious symbols as reasonable suspicion for the search of cars stopped on the highways of Texas. "What?," you ask?"Cops were busting people for having statues of the Virgin Mary in their cars?"

Well, not quite. This particular case involved an arrest arising from the traffic stop of an automobile after troopers noticed it had a wobbling tire. While talking to the driver, the arresting officer testified that he observed a religious statue of the Virgin Mary on the dash of the car. The officer further testified that from his experience, " religious symbols were present in vehicles when drugs were seized from them." He went on to say that such religious symbols are possible indicators that increase suspicion of drug trafficking. He then claimed to have reasonable suspicion to obtain "consent" from the driver to search his car for drugs, which were later located in the vehicle.

U.S. District Judge Royal Furgeson disagreed. He found First and Fourth amendment violations in this particular search, based upon his previous rulings on searches arising in the Pecos Division of the Western District of Texas.(The First Amendment of the U.S. Constitution protects private, religious expression, both verbal and written; the Fourth Amendment protects citizens against unreasonable searches and seizures.)

In analyzing the officer's calculation of "reasonable suspicion", Judge Furgesen concluded that the use of the presence of a religious symbol was a violation of the Free Speech clause of the First Amendment, and that the consideration of a religious symbol as a factor in deciding to search a vehicle was a violation of both the First and Fourth Amendments of the U.S. Constitution.

Continue reading " Religious symbols no longer reasonable suspicion for search of vehicles in Texas " »

Posted by Michael J. Brown | Permalink | Email This Post

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As a West Texas Criminal Lawyer, I frequently travel to remote parts of the state in defense of clients who have been arrested for small quantities of marijuana or drugs found in their cars as the result of highway stops by Texas troopers on Interstates 10 or 20, or at the Border Patrol checkpoint at Sierra Blanca.

Recently while driving to a pre-trial hearing in Sierra Blanca, I stopped for gas in Van Horn, which lies 35 miles to the east of Sierra Blanca along Interstate 10 in far west Texas. As I got out of my car I counted 37 Texas Department of Public Safety vehicles in one motel parking lot. The longer I stayed, the more DPS cars I saw. As it was late in the evening, I noticed troopers standing by their patrol cars conversing with each other or with U.S. Border Patrol agents parked in their familiar green and white 4 wheel drive trucks

Van Horn, a town of about 2,500 people, is headquarters for border enforcement for over a thousand square miles of ruggedly beautiful desert adjoining the Mexican border. From Pecos on IH 20 to Sierra Blanca on IH 10, down to Fort Davis, Marfa, and Alpine in the Big Bend country, and then along IH 10 from Fort Stockton in Pecos County to Ozona in Crockett County to Sonora in Sutton County, the Texas troopers patrol the highways in search of illegal drugs and illegal aliens. As the speed limit is 80 mph for two hundred miles east of the El Paso County line, speeding tickets shouldn't generate too many traffic stops.

However, I spotted over a dozen troopers working the interstate between Pecos and Van Horn, a distance of about 85 miles. Some cars were cruising at below speed limit, and some were parked in the median or on the side of the road, usually at the bend of a winding stretch of IH 10 through the mountain passes.

On one of my trips through Van Horn, I happened to be present during a DPS shift change. I watched as troopers emerged from their motel rooms to start their patrol for the night. I have learned that DPS troopers come from all over Texas for their temporary duty in the trans Pecos desert. I was told by a local motel clerk that the Department of Public Safety even rotates the motels where the troopers are housed in order to accommodate the local businesses.

It is no wonder that the Culbertson County Courthouse is a busy place; it is also no wonder that the courthouses in Hudspeth, Brewster, Pecos, and Jeff Davis counties are busy places as well. This kind of activity also extends two hundred miles to the east as far as Ozona and Sonora, where prosecutors face dockets loaded with drug cases made by searches of cars on the interstate.

All of these remote little courthouses have crowded dockets of cases against young people from out-of -state who are charged with possession of small amounts of drugs and who have had to post bail and pay storage charges on their cars impounded after their arrest.

For these areas, business is booming.

Posted by Michael J. Brown | Permalink | Email This Post

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