Texas Criminal Lawyer Blog

Well, the holidays are upon us and travelers are going to take advantage of the low gasoline prices to jump in the car and go somewhere. Some travelers will have something in their car which is illegal, like drugs, or will have been drinking alcohol or smoking marijuana and will be stopped by the Texas Department of Public Safety somewhere on Texas highways or interstates. Most of the stops are for some traffic violation, but many will end up with drug charges against the occupants of the automobile. Any driver, regardless of whether he or she has anything illegal in the automobile, is is much more like to be stopped and asked for permission to search their vehicle if the driver or passengers are young, black, hispanic, or otherwise different in appearance than the average Texas State Trooper.

However,in order to search your car, the officer is required by law to have what is known as 'reasonable suspicion" to delve further into the situation which presents itself after the officer has "made contact" with the driver of the automobile. The smell of alcohol or marijuana is the most obvious example. Short of this more obvious ground, the appearance of the driver is almost always cited; nervousness, (isn't everyone nervous when stopped by a cop?) bloodshot eyes, etc. After these initial reasons, the driver's answers to the troopers questions are often used--for instance, the question "where are you headed" answered by a city in the opposite direction in which the driver's car is going, is often used as reasonable suspicion for a consent search of the vehicle.

The driver has the obligation to furnish a Drivers license to the cop when requested, and to answer preliminary questions regarding the correct address on the license and other such questions regarding identity. After that, no further answers are required by the driver.

I have seen hundreds of police reports regarding highway stops from Sierra Blanca to Fort Stockton to Sonora, and from Eastland to El Paso, along Interstates 10 & 20, as well as Highway 84 from Abilene to Amarillo. You, driver, do not have to give consent to search your vehicle. Do not give it! If you are searched anyway, there will be a video of the stop. Do not reply to questions. Refuse to do any roadside sobriety tests. Do not blow into any breath devices. Then, since you are going to be arrested anyway, it makes my job easier when I defend you! Happy Holidays.

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

Posted In: Search & Seizure

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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

Posted In: Search & Seizure

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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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About ten years ago Texas state troopers began "consent" searches of automobiles stopped for traffic offenses. This practice spread throughout the state, but originated in my part of the state, near my law office in far west Texas, on Interstates 10, 20, and 40, as well as some of the other major highways throughout Texas. There is a trooper on IH 10 near Sonora, Texas who "profiled" drivers and who began to stop cars for speeding or other traffic offenses while looking for large amounts of drugs and money. He got a few big busts, and then other troopers started doing the same thing. Governor Perry and the Texas legislature had about the same time created some local "drug task force" units funded to "interdict" drugs and money on Texas highways. Then , post 9/11, fewer smugglers took the plane and most switched to cars, driving from Florida to California with their illegal loads. When they got caught by the Texas troopers, there was much publicity for the arresting officers and the vehicles and money obtained by the search were split between the locals and the state. This resulted in shiny new cars for the cops and more salaries and expense money for the DA's offices and their staffs.

The result of all this has been the arrest of hundreds of college students and other young people for small amounts of marijuana and small quantities of drugs from ecstasy to cocaine, and lately, methamphetamine. In Texas, these are misdemeanors or "state jail" felonies, calling for automatic probation or incarceration in short term prisons, called "state jail facilities." In my experience, very few of these stops result in seizures of major amounts of drugs or even marijuana. But it has resulted in arrest and conviction records for young people and in the erosion of constitutional rights against search and seizure. In fact, these searches have become so much a part of the highway landscape that I occasionally observe these searches while traveling. There is even a website by former Texas narcotics officer Barry Cooper devoted to those wanting to avoid these stops.

The stops usually go down like this: The Texas Department of Public Safety troopers would ask the (usually young)driver if they had any drugs in the car. The request is in the form of a statement beginning with..."it is part of my duties to intersect the movement of narcotics and money derived from narcotics...Do you have any drugs on you? Do you mind if I search your car?" Many drivers say yes, not realizing they have a right to refuse. Often the troopers would suggest that "drug dogs" would be brought in to search the car. It has become so common that people have told me their sons or daughters have been subjected to searches of their cars after being stopped for speeding on US 84 between Lubbock and I-20. Many Texas Tech students travel that highway going back to their homes in the metroplex. Such searches are often not consensual, and are coerced. Don't agree to have your car searched, even if you have nothing illegal in the car!

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

Posted In: Search & Seizure

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