A clutch of recent cases in the field of search and seizure favor law enforcement. The Court of Criminal Appeals has twice revisited the standard of reasonable suspicion and also issued opinions on the plain view doctrine and checkpoints. In addition, two out-of-state cases have discussed cell phone searches that are sure to influence our state law.
The threshold for reasonable suspicion
Of course, in determining whether an officer possessed reasonable suspicion to detain a person, the courts employ the “totality of the circumstances.” On its face, that prescription appears fairly clear: Courts must consider all facts that could bear on the inquiry. But within that penumbra of circumstances are these questions: 1) what is the threshold for finding reasonable suspicion, 2) which actors’ information is considered, and 3) must an officer articulate a specific crime?
In Foster, the Court of Criminal Appeals reminded us of the guidance provided by the Supreme Court of the United States on the subject of reasonable suspicion.1 The high court required that, in conducting a stop or temporary detention, an officer “articulate something more than an inchoate and unparticularized suspicion or hunch.”2 Fundamentally, an officer must have “some minimal level of objective justification for making a stop.” This means that an officer must be able to “point to specific and articulable facts, which taken together with the rational inferences from those facts, reasonably warrant the intrusion.”
OK, so if an officer can sufficiently explain the basis for the stop or detention and that explanation is reasonable, the officer’s action should be upheld. And that is what the Court of Criminal Appeals reaffirmed in Foster.
An Austin officer, in an unmarked car, noticed Foster at about 1:30 a.m. a few blocks from the Sixth Street bar district. While the officer waited at a red light, Foster’s truck lurched to a stop closely behind his car. The officer thought Foster might have wanted to change lanes but had left insufficient space to do so. Meanwhile, a second officer pulled his marked car into the lane alongside Foster. The first officer, with experience of detecting intoxicated drivers around Sixth Street, believing that Foster’s driving was unsafe due to the location and time of night and concerned that the driver might be impaired, approached Foster. The officers smelled alcohol on him, removed him from his truck, and a third officer performed field sobriety tests. They arrested Foster for DWI.
Although the trial court ruled that the officer had reasonable suspicion Foster was intoxicated, the Third Court of Appeals disagreed. The intermediate court held that the time of night; the location, alone or together, with the other facts; and the lurching movements were insufficient to support a reasonable suspicion of DWI.
The Court of Criminal Appeals—also questioning the Third Court’s ruling that the mere location of the officers’ cars at the red light constituted a detention—reversed and endorsed the trial court. Specifically, Judge Hervey for the unanimous court wrote: “In light of the time of night, the location, [the officer’s] training and experience, and Foster’s aggressive driving, it was rational for [the officer] to have inferred that [Foster] may have been intoxicated.” Thus, the officer related sufficient facts that reasonably supported a stop.
This opinion is an excellent example of the threshold for finding reasonable suspicion in a DWI case. It is not a demanding standard at all, but it is one that is satisfied only with an explanation of the facts giving rise to the invasion of privacy and a rational employment of those facts.
Reasonable suspicion does not require articulation of a specific crime
Foster should be read with Derichsweiler.3 Together, these two cases, although not referencing one another, provide a really good picture of just what reasonable suspicion is all about. In Derichsweiler, the defendant was also arrested for DWI.
After dark one New Year’s Eve, a man pulled his car alongside a couple’s car while they waited in a McDonald’s drive-through. He lingered for over 30 seconds while looking right at the couple and grinning. The wife did not think this conduct was normal. When the couple pulled forward, the man drove in front of them, grinning and staring for another 15 to 20 seconds. Next, he circled around the restaurant and pulled up behind their car to the left side, all but blocking them in. Again, he stared and grinned at them. The couple, feeling threatened and intimidated, feared a robbery was in progress or that the man was stalking or sizing them up. The husband called 911 as the man drove off to the adjacent Wal-Mart parking lot and pulled alongside two parked cars. The husband relayed what he and his wife had seen and told the dispatcher that the man’s behavior was suspicious. As instructed, the couple provided contact information and remained at the scene.
The dispatched officer knew only the description of the vehicle, that it was circling Wal-Mart, and that a citizen had reported it as a suspicious vehicle. When the officer approached the car and the driver opened the window, he noticed a strong smell of alcoholic beverage and, ultimately, arrested Derichsweiler for DWI.
The trial court denied Derichsweiler’s motion to suppress, but the majority of the Second Court of Appeals, limiting its review to those facts known by the arresting officer alone, held that the officer lacked reasonable suspicion to detain Derichsweiler because his conduct did not suggest criminal conduct per se. Alternatively, the majority continued, if all the information known to the police were considered, it still didn’t provide reasonable suspicion. In contrast, the dissent asserted that an officer is not required to include some specific observation of a crime.
The Court of Criminal Appeals returned two important holdings. First, in determining whether an officer has reasonable suspicion to detain a person, the totality of the circumstances includes the cumulative information known to the cooperating officers at the time of the stop and is not restricted to the information known by the detaining officer personally. Moreover, ordinarily, a police dispatcher is considered a cooperating officer.
Second, to conduct a temporary detention, an officer is not required to have facts demonstrating that the detainee has committed, is committing, or is about to commit a particular and distinctively identifiable penal offense. It is enough to satisfy reasonable suspicion if “the information is sufficiently detailed and reliable . . . to suggest that something of an apparently criminal nature is afoot.”
The court opined that, although a close call, Derichsweiler’s repetitive bizarre behavior—behavior continued with other vehicles—suggested a potential criminal motive beyond the couple alone. It was “enough that the totality of the circumstances, viewed objectively and in aggregate, suggest[ed] the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon.”
Facially, Derichsweiler would appear to define the outer limits of what can be considered reasonable suspicion, but it is rewarding to read the footnotes wherein the court observed that the case arguably presents more compelling facts to support reasonable suspicion than a case it decided two decades previously.4 This comment provides a valuable comeback if others, as surely they will, assert Derichsweiler goes too far.
A checkpoint’s validity
Checkpoints are a topic of frustration to many in law enforcement and prosecution. Their use is limited by our federal and state appellate courts to a narrow category of instances: custom duties’ violations; illegal aliens; driver’s licenses, insurance, and registration checks; weights and equipment checks; and, with proper safeguards in place, DWI.5 But while restating their principle limitation—that they cannot be used for investigation of “ordinary criminal wrongdoing”—the Court of Criminal Appeals in Lujan upheld a checkpoint for the purposes stated by officers—license and insurance compliance—that, to at least the intermediate court, indicated a checkpoint for the purposes of investigating plain ol’ general criminal activity.6
Targeting uninsured and unlicensed motorists, the officers in Lujan stopped all vehicles traveling in both directions at a stationary checkpoint. They also enforced any other observed violations. An entire interdiction unit of a supervisor, about six officers, and a K-9 attended. If drivers displayed their license and insurance, the officers waved them through, but if the drivers could not comply, they were directed to pull over to the side.
Lujan, unable to provide a license, was pulled over. Before completing his citation, however, the officer had Lujan climb out of the car and learned that the passenger had an outstanding warrant. The officers arrested the passenger and, for safety reasons, conducted a pat-down of Lujan. He carried large bundles of cash but consented to a search of his vehicle. When the K-9 investigated, it alerted, and the officers found a white, powdery substance in the passenger door. The stop had lasted about six or seven minutes.
Lujan challenged the checkpoint on grounds that it was established to discover general criminal activity and he persuaded the intermediate court of that. The Court of Criminal Appeals reminding that: “A checkpoint to verify drivers’ licenses and vehicle registration is permissible, but a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is not,” disagreed. The primary purpose for the checkpoint in this case, the court held, was not general crime control but, as the trial court implicitly found, a license and insurance check. The presence of the K-9 alone did not render the checkpoint unconstitutional, and officers are not required to ignore other violations outside the scope of the checkpoint’s purpose so long as the primary purpose is valid.
These frank officers were rewarded for their truthful testimony, but this opinion serves to illustrate the value of findings of fact. Here, an explicit finding of fact on the primary purpose for the checkpoint would have been best, but the testimony of the officers and the trial court’s conclusion ultimately prevailed.
State and federal plain view doctrines reconciled
For nearly a quarter century, Texas law enforcement and prosecutors have been laboring under a state interpretation of the plain view doctrine that has been at odds with the federal doctrine. In White, the Court of Criminal Appeals decided that officers could not search items in plain view if they lacked reason—right there and then—to believe that they were evidence, fruits of, or instrumentalities of a crime.7 Simply, if it was not “immediately apparent” to the officers that the property was evidence of a crime, they could not search further to determine its provenance. Thus, officers who responded to an altercation in an apartment and who entered to ascertain damage, saw a backpack, obtained a name and address from the backpack (without disturbing the pack), and, after departing, learned from a call to the stationhouse that a burglary complaint had been lodged by the person on the pack’s label, could not lawfully return to seize or search the backpack and other stolen items.
Sweepingly, the White court painted beyond the perimeter of the federal precedent on which it purported to rely. In Hicks, the Supreme Court had used its paintbrush more circumspectly. It drew the line at officers moving items that were outside the scope of their original justification for the search, thereby creating a new invasion of privacy.8 Accordingly, police searching an apartment for a shooter, victims, and weapons could not lawfully move stereo equipment in plain view to ascertain the serial numbers so that they could determine if the equipment was stolen.
After nearly a quarter century of reflection, the Court of Criminal Appeals has retreated from the nonsensical position adopted in White. The judges realized that their predecessors spoke in terms excessively broad. In Dobbs, they were faced with officers who had executed a narcotics warrant and discovered two sets of brand-new looking golf clubs on a bedroom floor and a mound of new golf shirts with a county club’s logo embroidered on them on a closet self.9 While still in the residence, the officers learned from communicating with their dispatch that the country-club property had been stolen. Determining that they had acquired probable cause, the officers seized the items. As the court now interprets the plain view doctrine, officers can obtain further probable cause when they are legitimately on premises and see something in plain view so long as any additional investigation does not involve a greater intrusion –whether by scope of the search or time taken—than that already underway.
Despite its faulty reasoning in White, though, the court maintains that it nevertheless reached the right result in that case because the officers had exceeded their original justification by entering the apartment for an exploratory search and left the apartment before obtaining probable cause about the stolen items.
Dobbs is an important correction to the state law on the plain view doctrine and, employed within the scope of the limitations of Hicks and White, is a step in the right direction. Now, how about the Texas adopting the doctrine of inevitable discovery?
Cell phone searches in other states
While we await any dispositive word on cell-phone searches from the Supreme Court of the United States and the Texas Court of Criminal Appeals, two states’ high courts have addressed them, and they have reached inconsistent results. In the meantime, many in Texas have advocated the cautious approach: If an officer can get consent or a search warrant before accessing the contents of a cell phone, the officer should do so. But others have sought to access cell-phone contents relying on the exceptions to the search warrant requirement. Perhaps the most commonly relied on exception is that for a search incident to arrest. These two cases consider the search-incident-to-arrest exception to the search warrant requirement.
The most recent out-of-state decision on cell-phone searches is from the California high court and, at each of the three state-court levels, the result favored law enforcement. Usefully, months previously the Ohio high court had reached the opposite result. Because the California opinion was written with full knowledge of the other decision, however, let’s look at how that court reached its decision.
A sheriff’s deputy arrested Diaz after he drove a vehicle in which a drug seller sold Ecstasy to an informant during a controlled buy.10 At the stationhouse, the deputy seized Diaz’s cell phone and, during an interview, Diaz denied knowledge of the drug transaction. Later—90 minutes after Diaz’s arrest—the deputy manipulated the cell phone through several screens to find the text message folder where he discovered a message stating “6 4 80.” In the deputy’s training and experience, the message meant six pills of Ecstasy for $80. When he showed the message to Diaz, the suspect confessed.
Finding that the search of the phone had been valid as a search incident to arrest, the trial court denied a motion to suppress. The intermediate court agreed with the ruling and so did the Supreme Court of California.
The state high court reviewed the three governing cases from the Supreme Court of the United States and gleaned from them that the critical question was whether the cell phone was “personal property immediately associated with the defendant’s person” or “possessions within an arrestee’s immediate control.” If the former, the cell phone could be searched incident to arrest despite the elapsed time, but if the latter the search was invalid as conducted too remote in time from the arrest.11
The California justices held, 5–1, that the cell phone was immediately associated with Diaz’s person, thus, the delay in searching the phone was not significant, and the search was valid as incident to arrest. In a footnote, the court explained that it disagreed with the opinion of the Supreme Court of Ohio on the same question because that court’s focus on the arrestee’s expectation of privacy is “inconsistent with the [Supreme Court]’s decisions.” The Ohio court had improperly elevated a person’s privacy expectations in a cell phone’s contents. Principally, that a cell phone may be kept near to, rather than on, a person and that a cell phone stores personal data in varying quantities does not alter its character so as to take it out of the Supreme Court’s precedent. Moreover, it observed that the Ohio court was divided 4–3.12
What the Washington D.C. or Austin courts will eventually decide remains speculation, but at least these two conflicting opinions set up the issues for other courts to study. Until then, the safest practice is to encourage officers to obtain consent to search or to obtain a search warrant.
1 Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010).
2 Terry v. Ohio, 392 U.S. 1 (1968).
3 Derichsweiler v. State, No. PD-0176-10, 2011 Tex. Crim. App. LEXIS 112 (Tex. Crim. App. Jan. 26, 2011).
4 See Bobo v. State, 843 S.W.2d 572 (Tex. Crim. App. 1992).
5 See City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (temporary city drug-smuggling checkpoints); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) (temporary sobriety checkpoint); United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (permanent airport border check); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (permanent border check); Delaware v. Prouse, 440 U.S. 648 (1979) (spot check for license, registration, drugs); United States v. Ortiz, 422 U.S. 891 (1975) (temporary border roadblock); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (roving border patrol); Almeida-Sanchez v. United States, 413 U.S, 266 (1973) (roving border patrol); Scheneckl v. State, 30 S.W.3d 412 (2000) (game warden routine water safety check); State v. Skiles, 938 S.W.2d 447 (Tex. Crim. App. 1997) (temporary sobriety checkpoint); Webb v. State, 739 S.W.2d 802 (Tex. Crim. App. 1987) (temporary sobriety checkpoint); State v. Holt, 887 S.W.2d 16 (Tex. Crim. App. 1994) (temporary sobriety checkpoint); State v. Sanchez, 856 S.W.2d 166 (Tex. Crim. App. 1993) (plurality op.) (temporary checkpoint for license, registration, and equipment).
6 Lujan v. State, No. PD-0303-10, 2011 Tex. Crim. App. LEXIS 2 (Tex. Crim. App. Jan. 12, 2011).
7 White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987), overruled by Dobbs v. State, 323 S.W.3d 184 (Tex. Crim. App. 2010).
8 Arizona v. Hicks, 480 U.S. 321 (1987).
9 Dobbs, 323 S.W.3d 184.
10 People v. Diaz, No. S16660, 20011 Cal. LEXIS 1 (Cal. Jan. 3, 2011).
11 See United States v. Chadwick, 433 U.S. 1 (1977) (invalid search incident to arrest of double-locked footlocker searched 90 minutes after arrest); United States v. Edwards, 415 U.S. 800 (1974) (valid search incident to arrest of arrestee’s clothes seized 10 hours after his arrest); United States v. Robinson, 414 U.S. 218 (1973) (valid search incident to arrest of a cigarette packet seized during pat-down at time of arrest).
12 In Ohio v. Smith, the state high court held that the search of a cell phone’s contents at the time of arrest was improper because a cell phone was not a closed container under the Fourth Amendment and an individual’s expectation of privacy in the contents of a cell phone surpassed the privacy interest in an address book or pager. 920 N.E.2d 949 (Ohio 2009).