Weekly Case Summaries: February 16, 2011

Fifth Circuit Court of Appeals

United States v. Olivares-Pacheco      

02/10/11 : Cite No. 10-50063

Issue: 

Did a roving Border Patrol have reasonable suspicion to stop a vehicle carrying illegal aliens?

Holding: 

No. “We are convinced that the district court in the instant case denied the motion to suppress on the most de minimis articulation of facts of any case we have encountered.”  The stop, on an interstate 200 miles from the border, occurred during Monday morning work hours.  The subject of the stop was an otherwise “unremarkable” truck dragging brush beneath and carrying six men and women.  The agents finally conducted the stop because, as they followed the pickup, one occupant pointed at something in an "unremarkable" field just so the other occupants had reason not to look at them. Read Opinion.

Commentary: 

This case is treated as a border stop case, and it appears that, if the vehicle had been closer to the border, the court’s decision might have been different.  But in this case, the vehicle was 200 miles from the border, which led the court to view the other factors “charily.”  (Had to look it up myself).  As a regular reasonable suspicion case, the facts are even less compelling, and it appears that the court reached the right result.

Texas Courts of Appeal

Barker v. State – 14th COA

02/15/11 : Cite No. 14-09-00750-CR

Issue: 

Are the lifetime registration and notification requirements of the Texas Sex Offender Registration Program (SORS) facially unconstitutional because they violate federal Equal Protection guarantees?

Holding: 

No. Barker is not a member of a suspect class requiring application of the strict scrutiny test. Also, quarterly, lifetime registration requirements prescribed under SORP for persons twice convicted of sexually violent offenses are rationally related to the legitimate governmental purpose of protecting the public from sex-offense recidivism. Read Opinion.

Commentary: 

You should keep this decision handy if you ever prosecute a violation of a sex offender registration requirement.  The equal protection analysis is very thorough.  The court also rejects the defendant’s challenge to the enhancement of his punishment under Section 12.42 of the Penal Code, even though there is an enhancement provision available under the sex offender registration statute.  The two are held not to be mutually exclusive.

State v. Smith -14th COA

02/10/11 : Cite No. 14-09-0097-CR

Issue:

Did the trial court properly exclude expert testimony—from Fort Bend County Sheriff’s Deputy Keith Pikett—about dog-scent lineup identification evidence?

Holding: 

Yes. The trial court could have concluded that the testimony was unreliable because there was an excessive analytical gap between the data offered and Deputy Pikett’s proffered opinion.  Read Opinion.

Commentary: 

First of all, this case shows why it can be so difficult to win a State’s appeal when a trial court has ruled that a particular piece of evidence is inadmissible.  Secondly, this opinion reveals courts’ apparently growing mistrust of dog scent lineup identification evidence.  Because of the importance of this decision, I am hoping that the Court of Criminal Appeals will review it.  But after the court’s previous decision in Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010), I am not certain that the result will be any different.

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