May 8, 2015

United States Supreme Court

Rodriguez v. United States

No. 13–9972    4/21/15


Does the Fourth Amendment allow a dog sniff conducted after completion of a traffic stop?

Holding (Ginsberg, J.):

No. Without reasonable suspicion, extending a traffic stop to conduct a dog sniff violates the Fourth Amendment. “An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop” [but] “he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” The Court remanded the case for the Eighth Circuit to consider whether the officer had reasonable suspicion to detain the defendant beyond completion of the traffic stop. Read opinion

Dissent (Thomas, J., joined by Justices Alito and Kennedy):

“The only question here is whether an officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes. Because the stop was reasonably executed, no Fourth Amendment violation occurred.”

Dissent (Kennedy, J.):

Justice Kennedy wrote separately to note that while he joined Justice Thomas’s dissent, he did not join in Part III of the dissent addressing the officer’s reasonable suspicion to detain the driver while the dog performed the sniff.

Dissent (Alito, J.)

“This is an unnecessary, impractical, and arbitrary decision. It addresses a purely hypothetical question: whether the traffic stop in this case would be unreasonable if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs. In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.”


Expect more litigation of the duration of traffic stops and claims that officers “slow walked” the traffic investigation while they waited on a dog or backup. Remember, too, that an officer can extend the stop as long as he has reasonable suspicion of an offense other than the traffic offense, as discussed by Justice Alito.

Texas Courts of Appeals

Drake v. State

No. 14-13-00855-CR    5/5/15


Has a judge violated a defendant’s constitutional right to an impartial jury by arresting a juror in front of the entire jury panel for contempt after the juror expressed potential bias against a defendant charged with sexual performance by a child based on the juror’s religious beliefs about pornography?


Yes. A trial judge who holds a juror in contempt for expressing his religious beliefs defeats the purpose of voir dire and prevents the honest exchange of information between the court and the jury. Read opinion

Concurrence (McCally, J.)

The concurring justice disagreed that the defendant had shown harm but would nonetheless find that in this context, a defendant need not show harm. Read opinion


Fundamental error just won’t die. For some cases, a 65-person venire may not be enough to seat a jury. A better bet might be to summon a larger panel (or additional panels) rather than hold in contempt a venire member who refuses to set aside a deeply held religious belief. There may be more to it than readers can glean from the opinion—after all, a transcript does not convey body language, tone of voice, or other information that was before the judge at the time. Nevertheless, an appellate court would have difficulty excusing this action even if the judge had articulated detailed findings of fact.

State v. Martinez

No. 13-14-00117-CR    4/30/15


Is Texas’ mandatory blood-draw statute (Transportation Code §724.012) unconstitutional in all circumstances?


The defendant failed to prove that it is. The mandatory blood-draw statute does not purport to dispense with the Fourth Amendment’s requirement of warrants for blood draws, and an officer can comply with §724.012 and the Fourth Amendment by obtaining a warrant or proceeding without a warrant if the specific circumstances present an exigency sufficient to dispense with the warrant requirement.  Read opinion


Someone must be telling defense lawyers at a CLE there is a financial windfall somewhere if they can prove the blood draw statute unconstitutional.

Wagner v. State

No. 05-13-01329-CR    5/5/15


Is the violation of a protective order statute unconstitutionally vague and overbroad by failing to define “in a harassing manner”?


No. Penal Code §25.07(a)(2)(A) does not prohibit a defendant from communicating with the victim on any subject. Instead, it prohibits intentional or knowing communication that persistently disturbs, bothers continually, or pesters the victim. Read opinion


The Court holds the harassment statute is not vague or overbroad for failing to define “in a harassing manner,” and the Court did not reach claims that the statute was an impermissible prior restraint. This opinion is also useful because it conducts a sufficiency analysis of typical facts encountered in these cases—mutual communication at first, but the defendant does not (or cannot) stop after the victim stops communicating.


Bradshaw v. State

No. 06-14-00165-CR    5/5/15


May a trial court admit evidence of a no-billed sexual assault committed against a child other than the victim of a charged sex offense under CCP Art. 38.37, §§2 and 2-a (amended in 2013)? Must a trial court apply a Rule 403 balancing test when considering the admission of such evidence?


Yes. The statute requires sufficient evidence such that the jury could find he committed the evidence beyond a reasonable doubt. In this case, the victim of the extraneous offense immediately reported the offense to her mother and underwent a SANE exam. The victim and her mother did not testify to the grand jury that no billed the case. And, in any event, the evidence at trial was sufficient to support a finding of the extraneous offense beyond a reasonable doubt. Because the Legislature mentioned Rules 404 and 405 but did not include Rule 403 in Art. 38.37, “nothing in Article 38.37 removes evidence, otherwise admissible under Sections 2 and 2-a, from Rule 403 scrutiny.” Read opinion


A good discussion of how the amended Article 38.37 works. And a case that shows why we needed this important tool for child abuse prosecutions.

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