W. Clay Abbott
In a DWI case one simply CANNOT survive suppression. With a DWI, almost every important piece of evidence is lost as “fruit of the poisonous tree” if the court finds the initial stop was unreasonable under the 4th Amendment. To further complicate matters, as virtually every DWI stop and arrest is warrantless, the State finds itself behind a presumption of unreasonable conduct. Police officers making warrantless stops and arrests, unlike every other individual presumed innocent of wrongdoing, are presumed to have acted unreasonably. In a nutshell, we start in a hole. This simple constitutional doctrine also provides a procedural means for competent defense counsel to delay discussion of their client’s conduct until the officer’s conduct has been fully questioned, examined, and litigated. No surprise most DWI cases are preceded by a suppression hearing of some type.
In the following article I will not attempt to discuss every possible suppression issue and search and seizure doctrine. Excellent publications already exist that do exactly that. (Please refer to TDCAA’s excellent publications Warrantless Search and Seizure and Traffic Stops, both by Diane Burch Beckham and DWI Investigation & Prosecution by Richard Alpert.) I will instead focus on some practical steps in approaching the suppression hearing in a DWI case.
Suggestion 1: Read the motion.
Defense motions run the gamut from detailed and researched to the dreaded blanket form objections that can be filed in any case without a moment’s thought or applicability to the case. Regardless, begin your preparation by reading the defense motion. Are the objections under the U.S. and/or Texas Constitution? Are specific statutory grounds included? Are specific evidentiary rules raised? Are objections made under the 4th, 5th, or 6th Amendments? Or does it simply invoke “federal and state constitutions, Texas statutes, and the Rules of Evidence?” Where local rules or judicial disposition allow, get the defense to articulate the motion sufficiently to narrow issues. Beware of seemingly meaningless boilerplate, and never gloss over a paragraph just because you have seen it before. Very often the defense appellate attorney can find a quotable reference in all that mess you skim over and resurrect an issue you thought was not raised.
Look at your case through defense lawyer goggles. Don’t wait on the defense to pick out your weaknesses; do it yourself. Have a pre-trial discussion with your officers for what is not in the reports—after all, the defendant has related the story in greater detail to the defense counsel, so you should get details from your officer. Procure a copy of the statues from the Transportation Code on which the officer based his traffic stop. Cover all the elements with him before he climbs on the stand. Watch the video with an eye toward justifying the initial stop, making the arrest, and whether the defendant’s statements were products of a custodial interrogation. Finally, pull cases supporting your legal position and copy them for the court. If the issue is a novel one or the defense motion is well-briefed, consider preparing and submitting a response brief to the motion.
Suggestion 2: Try the suppression hearing like a JP trial.
Consider it a given that the Texas Transportation Code is poorly drafted. Officers must have probable cause to believe every element of the traffic offense was committed, meaning both the officer and prosecutor must know the elements of the offense to create a record to support the court’s overruling the motion to suppress or appeal a granting of the motion. If the officer misapplies the law, there may be no saving the case, but often the failure is in a prosecutor’s direct examination of the officer during the hearing.
One simple way to ensure your record is sufficient is for both the prosecutor and officer to know the relevant code section and to treat the hearing like a traffic case in JP court. Put on testimony just like you are in a bench trial on a traffic citation, not a DWI. So many DWI cases are reversed for insufficient probable cause because their records from the suppression are embarrassingly cursory, even for a Class C traffic case. I remember my first few suppression hearings when I asked my cop, “What did you stop him for?” After the officer replied, “Failure to dim his headlights,” I’d move on, but I wouldn’t have left it that sketchy if I were trying the violation in JP court. It is important to remember that proof of the defendant’s actual guilt or innocence of the traffic violation is not required, only that probable cause of each element is established. While the State should present the officer’s direct like it would in JP court, the issues in the hearing are a full step below guilt innocence. Also do not forget that probable cause to make a traffic violation stop is not the only legal justification. As we will discuss in a moment, always look to see if other grounds such as reasonable suspicion, community caretaking, or voluntary encounters are viable grounds for the initial contact.
Suggestion 3: Create a record establishing the officer’s experience and training.
For years I gave bad advice as an adjunct professor teaching trial advocacy at the Texas Tech School of Law. I used to tell students not to spend much time developing the officer’s training and experience, but rather to dig right into the case. While it is true this rather dry testimony can squander the opportunity to fully utilize the principal of primacy, it is equally true that this testimony is essential to surviving the motion to suppress and creating an effective record on appeal.
Often judges, hoping as always for expediency, will quickly tire of this topic. Yet appellate courts quickly note its absence and mention its inclusion. Officers should be encouraged to periodically print their TCLEOSE training report and provide it to prosecutors as a kind of résumé. It is pretty impressive how many hours peace officers spend in class! Stressing the officer’s training and practical experience also properly develops his credibility. It is important to help officers explain that their observations are deliberate and based on the experience of other officers (and NHTSA studies) and their own considerable experience observing traffic and detecting impaired drivers.
One final suggestion in this regard is to develop a back-up question to the prosecution fall back, “What happened next?” When an officer gives a detail-starved statement, give a non-leading prompt for more detail by asking, “Can you tell me more about that?” Ask any appellate attorney: More detail concerning the officer’s observations never hurt her ability to write an effective brief on a suppression issue.
Suggestion 4: Put every theory establishing reasonableness in the record.
If you fail to develop and argue a theory before the trial court, you can’t rely on that theory on appeal. Every reasonable justification for the stop, arrest, or admissibility of the defendant’s statement should be developed in testimony and placed in the record and before the court. To best illustrate the merit of this position, let me resort to an analogy: If you are charged by a rabid bear and you have a gun with six bullets, how many do you use? The answer is the same as the number of theories you raise at the suppression hearing: all of them.
One simple error in this regard is to jump too quickly to the conclusion that a “seizure” has occurred. Not every interaction between an officer and a potential defendant is a seizure that required justification under the 4th Amendment. Also look at your case for justifications based on reasonable suspicion, community caretaking and other exigent circumstances.
Suppression hearings in DWI cases are with us always. As long as a mechanism exists for the defense to place officers on trial instead of their clients, defense attorneys would be ineffective and violate their oath not to use it. There simply is no substitute for knowing the law and creating a record that preserves our victories and reverses our unfair losses. Again, please refer to the excellent publications mentioned above for a far more exhaustive and complete discussion of legal issues and case law on this subject. In the meantime, my hope is that we will endure fewer painful case reviews by following these simple suggestions.
1 Katz v. U.S., 389 U.S. 347 (1967).
2 Katz, supra
3 Article 28.01, Code of Criminal Procedure, gives trial courts considerable discretion in requiring issues be raised 7 days before the hearing. If the court is inclined to require more than general boilerplate motions use that predisposition to help narrow issues and request the court require the defense to make more specific motions.
4 U.S. Lopez-Valdez, 178 F3d 282 (5th Cir. 1999).
5 For Failure to Maintain a Single Lane see: Bass v. State, 64 S.W.3d 646 (Tex.App.-Texarkana 2001, pet. Ref’d). Hernandez v. State, 983 S.W.2d 867 (Tex.App.—Austin, pet. Ref’d). For Defective Tail Lamp: Vicknair v. State, 751 S.W.2d 180 (Tex.Crim.App. 1998 [on rehearing]). Following to Close, Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005). Also read Stoker v. State, 170 S.W.3d 807 (tex.App.-Tyler 2005). Where it was done right.
6 Zervos V. State, 15 S.W.3d 146 (Tex.App—Texarkana 2000, pet ref’d).
7 Read Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005) and see if you don’t see what I mean.
8 State v. Mercado, 972 S.W.2d 75 (Tex.Crim.App. 1998).
9 State v. Bryant, 161 S.W.3d 758 (Tex.App.—Fort Worth 2005)