June 2012 SDR - Voice for the Defense Vol. 41, No. 5

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Friday, June 29th, 2012

Voice for the Defense Volume 41, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

D’s fair trial did not preclude prejudice from counsel’s ineffective assistance. Lafler v. Cooper, 132 S. Ct. 1376 (2012)

      It was conceded that counsel was deficient in providing erroneous legal advice concerning the plea bargain, but petitioner prison warden contended that inmate suffered no prejudice because he was properly convicted after a fair trial. The Court held that D’s fair trial did not preclude prejudice from counsel’s ineffective assistance. The right to effective assistance was not solely to ensure a fair trial, and there was no indication that the fair trial cured counsel’s error. Further, D suffered prejudice rather than a windfall based on the likelihood that the outcome would have been different, since D sought relief based on a failure to meet a valid legal standard rather than application of an incorrect legal principle. Also, a lack of prejudice could not be based on the reliability of the trial since the reliability of the pretrial bargaining, which caused the inmate to lose the benefits of the bargain, was the concern at issue. However, the appropriate remedy for counsel’s error was to re-offer the plea bargain and conduct further proceedings in state court, rather than directing that the plea bargain be enforced. The judgment upholding the grant of the writ of habeas corpus and directing that the plea bargain be enforced was vacated, and the case was remanded for remedial action.

The district court had discretion to order that D’s federal sentence run consecutively to his anticipated state sentence for the probation violation. Setser v. United States, 132 S. Ct. 1463 (2012)

      D was convicted of a drug offense in federal court and a probation violation and drug offense in state court. D contended that his federal sentence was improperly imposed to run consecutively to the anticipated state sentence for the probation violation. D appealed the judgment of the Fifth Circuit that upheld the sentence.

      The U.S. Supreme Court held that the district court’s authority under 18 U.S.C.S. § 3584(a) to impose concurrent or consecutive sentences when multiple sentences were imposed at the same time, or when a defendant was already subject to a state sentence, did not preclude the discretion of the district court to impose the single sentence to run consecutively or concurrently with a state sentence not yet imposed. Further, the authority of the Bureau of Prisons to determine whether a sentence would be served in state or federal prison did not commit the concurrent/consecutive determination exclusively to the Bureau. Also, the practical difficulty in determining the length of D’s sentence, based on the state sentence for the probation violation being shorter than the state sentence for the drug offense, did not render the sentence unreasonable. The judgment upholding D’s sentence was affirmed.

New federal immigration provision, 8 U.S.C.S. § 1101(a)(13)(C)(v), did not apply to alien’s pre-Act conviction. Vartelas v. Holder, 132 S. Ct. 1479 (2012)

      After petitioner alien became a lawful permanent resident, he pled guilty to a felony in 1994. He traveled abroad in 2003. On his return to the United States a week later, he was treated as an inadmissible alien and placed in removal proceedings. An immigration judge denied the alien’s request for relief and ordered him removed. The Board of Immigration Appeals (BIA) affirmed the judge’s decision, and the Second Circuit affirmed. The Supreme Court reversed and remanded.

      The Illegal Immigration Reform and Immigrant Re­spon­si­bil­ity Act (IIRIRA) of 1996 effectively precluded foreign travel by lawful permanent residents who had a conviction like the alien’s. Guided by the deeply rooted presumption against retroactive legislation, the Supreme Court held that the IIRIRA’s admission provision, 8 U.S.C.S. § 1101(a)(13)(C)(v), did not apply to the alien’s conviction because the provision attached a new disability (denial of reentry) in respect to past events (his pre-IIRIRA conviction). The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore de­ter­mined not by IIRIRA, but by the law in force at the time of his conviction. Under that law, an alien in his situation could travel abroad for brief periods without jeopardizing his resident alien status.

Jails may perform suspicionless strip searches on new inmates regardless of the gravity of their alleged of­fenses. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012)

      The search procedures at the county jails struck a rea­son­able balance between inmate privacy and the needs of the in­sti­tu­tions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules D proposes. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process; se­curity imperatives involved in jail supervision override the as­sertion that some detainees must be exempt from invasive search procedures absent reasonable suspicion of a concealed weapon or other contraband.

Fifth Circuit

The weight computation in a meth case determines the base offense level and is a question of fact. United States v. Conn, 657 F.3d 280 (5th Cir. 2011)

      In case involving manufacture of meth, Application Note (C) to USSG § 2D1.11 requires the court to compute the base offense level using only the weight of the pure pseudoephedrine, not the entire gross weight of the tablets containing the pseu­do­ephedrine. This computation is a question of fact and, as a question of fact, could not constitute plain error (at least in the absence of clear evidence that the weight was improperly that of the entire tablets).

District court erred in holding an evidentiary hearing on D’s federal habeas petition claiming juror bias and ineffective assistance and then in granting relief on the enhanced record that included the evidentiary hearing. McCamey v. Epps, 658 F.3d 491 (5th Cir. 2011)

      Under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), when federal constitutional claims are adjudicated on the merits in state court, a federal habeas court may not hold an evidentiary hearing except under very limited circumstances not present here—see 28 U.S.C. § 2254(e)(2). Rather, the federal court’s con­sid­er­ation of the petitioner’s claims is limited to the record that was before the state courts that adjudicated those claims on the merits. Based solely on the state-court record, the Mississippi courts did not unreasonably apply federal law by rejecting D’s federal constitutional claims as waived. The Fifth Circuit reversed the district court’s grant of federal habeas relief.

Where district court re-characterized a federal pris­on­er’s habeas petition under 28 U.S.C. § 2241 as a suc­cessive motion under 28 U.S.C. § 2255, and trans­ferred that motion to the Fifth Circuit for au­tho­ri­za­tion to proceed, the Fifth Circuit had juris­dic­tion to review the district court’s re-char­ac­ter­i­za­tion/transfer. In re Bradford, 660 F.3d 226 (5th Cir. 2011)

      The district court did not err in re-characterizing and trans­ferring the petition because D’s claim—that he was erroneously sentenced as a career offender in light of recent Supreme Court decisions—was not a claim of actual innocence of the crime of conviction and thus was not the type of claim that warrants re­lief under § 2241. Nor was D entitled to authorization to pro­ceed on a successive § 2255 motion because the recent Supreme Court decisions have not been made retroactive to cases on collateral review as required under § 2255(h).

Valid traffic stop was unconstitutionally prolonged be­yond the time necessary to investigate the circum­stances that justified the stop and was not supported by reasonable suspicion of additional criminal activity. United States v. Macias, 658 F.3d 509 (5th Cir. 2011)

      Furthermore, D’s consent, even if voluntary, was not suf­fi­ciently attenuated from the antecedent constitutional violation so as to remove the taint of that violation. Accordingly, all of the evidence in the case should have been suppressed; without the suppressed evidence, there was no evidence to support D’s conviction for felon in possession of a firearm. The Fifth Circuit reversed and vacated the conviction, and remanded for entry of an acquittal.

Within-Guidelines sentence of 27 months’ imprisonment, imposed on D convicted of illegal reentry under 8 U.S.C. § 1326, was not substantively unreasonable due to the staleness of the 1990 drug conviction driving the Guideline calculation or his cultural assimilation in the United States. United States v. Rodriguez, 660 F.3d 231 (5th Cir. 2011)

      The age of a prior conviction does not destroy the presumption of reasonableness attaching to sentences within the range arrived at by use of the “stale” prior conviction, or suffice to overcome that presumption; nor did D’s evidence of cultural assimilation require he be given a sentence lower than 27 months’ imprisonment.

Because prisoner attempted to mail his petition in a man­ner consistent with the actual mail regulations and because he was prevented from doing so because prison mailroom officials wrongfully returned it for failure to comply with nonexistent prison-mail regulation, prisoner should have been afforded the benefit of the prison mailbox rule. Medley v. Thaler, 660 F.3d 833 (5th Cir. 2011)

      On original submission, the panel found that Texas state prisoner’s federal habeas petition was untimely because he bore the blame for an unsuccessful timely attempt to mail that petition from the prison in which he was incarcerated, and because his next, successful attempt was untimely. However, after the original decision, it was learned that the purported mail regulation, based upon which prisoner’s original mailing was rejected by the prison mailroom, did not exist. The Fifth Circuit granted prisoner’s petition for panel rehearing, reversed the district court’s decision dismissing prisoner’s petition as untimely, and remanded.

The County did not demonstrate that the district court plainly erred in instructing the jury that reasonable sus­picion was required for jail strip search. Jimenez v. Wood County, 660 F.3d 841 (5th Cir. 2011)

      A panel decision, following longstanding Fifth Circuit pre­ce­dent, upheld jury verdict finding Fourth Amendment vio­la­tion and awarding damages on the basis of a suspicionless strip search, at a Texas jail, of D arrested for a misdemeanor. On rehearing en banc, the Fifth Circuit held that the County had not preserved its objection to Fifth Circuit law holding that before minor-offense arrestees may be strip-searched, officials must have reasonable suspicion that the arrestees have weapons or contraband; because the County did not preserve its objection, its complaint about that law was reviewable only for plain error. The court then held that “any error in following decades of well-settled circuit precedent does not rise to the level of obviousness” necessary for relief on plain-error review. On the error the County did preserve, the district court did not err in characterizing the offense as “minor” as a matter of law for purposes of this rule. NOTE: The issue of whether minor-offense arrestees may be strip-searched without a showing of reasonable suspicion was decided by Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012), granting cert. to Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d Cir. 2010). See above.

Taken with all the facts, D’s comments to the effect that he wished he had a lawyer did not evince intent on D’s part to invoke his right not to be questioned by police without an attorney present. United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011)

      D’s waiver of his Miranda rights was not involuntary; detective’s statement that D would not get an attorney until he was arraigned in federal court was accurate information, not de­ception vitiating D’s waiver.

      District court did not abuse its discretion in giving a “flight” instruction (i.e., that D’s flight from officers was evidence the jury could consider in determining guilt). A flight instruction is proper when the evidence supports four inferences: (a) the defendant’s conduct constituted flight, (b) the defendant’s flight was the result of consciousness of guilt, (c) the defendant’s guilt related to the crime with which he was charged, and (d) the de­fen­dant felt guilty about the crime charged because he, in fact, committed the crime. On the facts, the jury could rationally have drawn each of these inferences.

      In prosecution for possession of meth with intent to dis­trib­ute, district court abused its discretion in admitting evidence that D’s nephew smoked meth with D. The evidence was clearly “extrinsic” evidence subject to Fed. R. Evid. 404(b), but the government did not give the required notice of its intent to introduce the evidence. This and admission of evidence that D was previously convicted, in Texas state court, of delivery of a controlled substance, even if erroneous, did not warrant re­ver­sal. In light of the strong evidence of guilt and the court’s limiting instruction, these errors were harmless beyond a reasonable doubt.

Court of Criminal Appeals

D showed that his trial was closed to the public, and that closure was not justified. Lilly v. State, No. PD-0658-11 (Tex.Crim.App. Apr 18, 2012)

      D was convicted of assault on a public servant. COA held that his trial proceedings, which were convened at the prison-chapel courtroom, were not closed to the public. CCA reversed and remanded for a new trial.

      D met his burden to show that his trial was closed to the public and that the trial court failed to take every reasonable measure to accommodate public attendance at criminal trials. The record shows that the State did not argue that D waived his public-trial claim until he appealed, that the State signed the plea agreement certifying D’s right to appeal his public-trial claim, and that the parties and the court were aware of D’s intention to appeal the open-trial issue. Although there was suf­ficient evidence to determine that D’s trial was closed to the public, the pretrial hearing and the ruling of the trial court did not constitute the findings of facts necessary to justify closing D’s trial. Because the trial court failed to make findings of fact that justified closing D’s trial, the closure was improper, and D’s constitutional right to a public trial was violated.

The cumulative evidence was sufficient to support a conviction for arson because it established D’s identity as the person who set his vehicle on fire. Merritt v. State, No. PD-0916-11 (Tex.Crim.App. Apr 18, 2012)

      A jury found D guilty of arson for the burning of an insured and mortgaged vehicle. COA reversed, determining that the evidence was insufficient because it did not establish D’s identity as the person who set his vehicle on fire. CCA held that COA incorrectly applied the Jackson standard, in that it failed to properly consider the combined and cumulative force of the evidence and to view the evidence in the light most favorable to the jury’s guilty verdict, and improperly used a divide-and-conquer approach, separating each piece of evidence offered to support the conviction. The evidence supporting a finding as to identity included evidence of motive, in that D had financial problems. There was also evidence of D’s opportunity to commit the crime, in that D was in possession of both sets of keys at the time of the alleged theft. There was testimony that because the ignition and steering column were intact, the vehicle could be moved only by someone using a key to drive it or by a wrecker towing it, and there were no marks indicating a wrecker at the scene. There was also testimony that interior items had been removed, that expensive tires and rims had been replaced, and that items found in D’s trash were documents typically kept in a vehicle. CCA reversed COA, affirmed the trial court, and remanded for COA to consider D’s other claims.

D’s counsel was not shown deficient in failing to object to the lab report on Confrontation Clause grounds when the record does not contain counsel’s reasons for failing to object and does not establish whether the lab analyst could or would have testified upon an objection. Menefield v. State, No. PD-1161-11 (Tex.Crim.App. Apr 18, 2012)

      A laboratory report was admitted into evidence, but the analyst who conducted the test and prepared the report did not testify. COA erred in determining that the record on direct appeal was sufficient to find trial counsel ineffective under Strickland v. Washington, 466 U.S. 668 (1984), where counsel’s actions could have been based on reasonable strategy.

The State was not required to file its own notice of appeal when D appealed his conviction and the State wished to appeal a ruling of law under Tex. Code Crim. Proc. art. 44.01(c). Pfeiffer v. State, No. PD-1234-11 (Tex.Crim.App. Apr 18, 2012)

      Once a convicted defendant files a timely notice of appeal, appellate courts have jurisdiction to address any pertinent cross-appeal or rebuttal issues raised by the State. In the instant case, COA did not address the State’s response to D’s claim that the trooper lacked reasonable suspicion to detain D until the ca­nine unit arrived. The State claimed that the trial court erred by excluding a trooper’s testimony regarding what a county in­vestigator told him, and that the excluded testimony provided the trooper with reasonable suspicion for detaining D. The State petitioned for review of COA’s judgment, which held that it did not have jurisdiction to consider the State’s cross-issue because the State failed to file a notice of appeal.

      The purported “cross-appeal” was merely part of the State’s argument on direct appeal as to why COA should have considered the trooper’s testimony regarding his call from the in­ves­ti­ga­tor. COA thus erroneously held that it did not have ju­ris­dic­tion to consider the State’s argument. CCA reversed and remanded to COA.

Expert testimony deficiencies in D’s murder trial did not warrant habeas relief. Ex parte Jimenez, No. AP-76,669 (Tex.Crim.App. Apr 25, 2012)

      The district court recommended applicant be granted habeas corpus relief from her felony murder and injury to a child convictions based on (1) a violation of Ake v. Oklahoma, 470 U.S. 68 (1985), because she was denied adequate funding to hire experts, and (2) counsel’s handling of experts. CCA denied relief.

      D forfeited her Ake claim for habeas review because she failed to preserve the claim in the trial court by filing a proper writ­ten Ake motion and ensuring that the trial court formally ruled on it. CCA further held that defense counsel was not ineffective in his pretrial preparation because the record showed that he has practiced for more than 28 years, many of the witnesses declined to speak with him despite his requests, and he focused on showing that the child choked on accident. Counsel was not ineffective for retaining its expert, even though he was not an expert in pediatric forensic pathology, because he had some pediatric experience and, as a forensic pathologist, was ideally situated to determine the cause and manner of death in sus­picious circumstances. Counsel was not ineffective for failing to request a mistrial or a continuance after the expert used profanity in speaking to the prosecutor during a break because D failed to show that there was any error in the prosecutor’s impeaching the expert with his inappropriate remark to show his bias.

The complexity of the offense and D’s role in the offense need to be squared with a finding of mental retardation. Ex parte Sosa, No. AP-76,674 (Tex.Crim.App. Apr 25, 2012)

      Applicant sought habeas corpus relief from his capital murder conviction and death sentence. The district court found that he proved his mental retardation. CCA remanded to that court for the judge to consider the factors established in Ex parte Briseno, 135 S.W.3d 1 (2004).

      On the current record, there was no basis on which to determine whether a man who committed the offense that a jury found beyond a reasonable doubt in 1984 could have had the disabilities that D proved by a preponderance of the evidence to a habeas judge in 2008. The record of D’s trial showed that he took the initiative to lead his nephew through a bank robbery, and that he took the initiative to kill the only witness who could identify him, a sheriff’s deputy. CCA remanded so that the judge of the convicting court could gather information and provide findings as to whether D’s alleged symptoms of mental retardation were inconsistent with his being able to commit the crime, and whether, considering the facts of the offense and D’s role, the judge still found that D was mentally retarded.

D’s evading arrest conviction was properly enhanced to a state-jail felony based on his prior evading arrest conviction, even though his prior conviction predated the enhancement statute. Ex parte Carner, No. AP-76,775 (Tex.Crim.App. Apr 25, 2012)

      D’s evading arrest conviction was enhanced to a state-jail felony under Tex. Penal Code § 38.04(b)(1)(A) because it was his second evading arrest conviction. D petitioned for writ of habeas corpus, arguing that his first conviction was committed before the effective date of § 38.04(b)(1)(A). CCA held that because the date of D’s prior conviction is not an element of the offense, he is not entitled to relief.

      The State chose to allege and prove that at the time D was charged with evading arrest a second time, he had been previously convicted of evading arrest. This attendant circumstance to the crime elevated the severity of D’s offense from a Class B misdemeanor to a state-jail felony. The date of D’s prior conviction was irrelevant to the State’s burden of proof. The State met its second burden when it introduced proof that D’s 2008 conviction was final at the moment he evaded arrest a second time.

Pre-arrest, pre-Miranda silence is not protected by the U.S. Const. amend. V right against compelled self-incrimination, and prosecutors may comment on such silence regardless of whether defendant testified. Salinas v. State, No. PD-0570-11 (Tex.Crim.App. Apr 25, 2012)

There was no reasonable suspicion for the traffic stop; the lane-change signal statute required the existence of more than one lane. Mahaffey v. State, No. PD-0795-11 (Tex.Crim.App. Apr 25, 2012)

      Officer stopped D for failing to signal an alleged lane change. Officer ultimately arrested D for DWI. D filed a motion to suppress. The trial court denied the motion, and COA affirmed on direct appeal and on remand. CCA reversed COA and remanded.

      The highway was comprised of clearly marked lanes for vehicular travel and, therefore, was a laned roadway under Tex. Transp. Code § 541.302(7). Once the clear markings on that highway terminated, so too did the corresponding lane. CCA disagreed with the State’s contention that the termination of a lane did not affect whether a driver changed lanes under the signal statute, Tex. Transp. Code § 545.104(a). D did not change lanes; the two lanes became one. Because a signal was required only to indicate an intention to turn, change lanes, or start from a parked position under § 545.104(a), no signal was required when the two lanes merged. Thus, officer failed to articulate specific facts that supported a reasonable suspicion that D violated § 545.104(a). Therefore, there was no reasonable suspicion for the initial stop, and the trial court erred by failing to suppress the evidence obtained as a result of the stop.

COA misapplied the standard of review for sufficiency of the evidence by focusing on the alternative explanations for the child pornography on D’s computer, rather than determining whether the jury’s inference was rea­sonable based on the cumulative force of all the evidence in the light most favorable to the verdict. Wise v. State, No. PD-0473-11 (Tex.Crim.App. Apr 25, 2012)

      A jury could have reasonably rejected D’s claims that the images were due to a virus or former computer owner and instead determined that D had a history of and present sexual at­trac­tion to children, and that he intended to possess the pornographic images of children that were in the free space of his computer. The jury could have inferred from D’s possession of temporary internet files referring to “young porn” and “teen sex” that he knowingly and intentionally had possession of the other child pornography. The evidence also showed that D had an improper sexual relationship with a 16-year-old girl, and his stepdaughter testified that he performed sex acts on her when she was younger than 10. CCA rendered a judgment affirming the trial court, which convicted D of 10 counts of possession of child pornography.

COA should abate D’s appeal because the trial court’s oral denial of the motion to quash D’s information and its written order granting the motion were in conflict. Henery v. State, No. PD-0958-11 (Tex.Crim.App. Apr 25, 2012)

      D contended that the trial court lacked jurisdiction to accept his guilty plea, to sentence him, or to sign the judgment because the case was dismissed when the trial court signed the order quashing the information. COA agreed. CCA vacated COA’s judgment and remanded to that court with instructions to abate the appeal and order appropriate findings by the trial court.

      Tex. R. App. P. 44 controlled because both preconditions were met. First, the trial court’s oral denial of D’s motion to quash and its written order granting the motion are in conflict. Hence, the case could not be properly presented to COA—the trial court’s jurisdiction over the case, and thus the jurisdiction of COA, is determined by which ruling of the trial court controls. Second, only the trial court is in the position to know whether the grant or denial was intended.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Deemed a voluntary, consensual encounter—despite officer parking his car at an angle that partially blocked D’s car’s egress and despite officer shining his spotlight in D’s car—because police car did not prevent D from maneuvering around him and driving away, among other facts. Johnson v. State, No. 14-10-01089-CR (Tex.App.—Houston [14th Dist] Dec 13, 2011)

      D’s vehicle “was backed into a parking spot outside the gate of an apartment complex at night with its lights on and engine running. . . . [Officer] did not activate his siren or emergency lights, or use a bullhorn or loudspeaker to communicate with Johnson. . . . [Officer] approached [D’s] car and asked, ‘What’s going on, what are you doing out here?’ and requested [D’s] identification. . . . [Officer] did not carry a flashlight, draw a weapon, order [D] to put his hands up, or otherwise inform him that he was being detained.”

      In reference to the practice of an officer asking, during a consensual encounter, for identification, “[e]ven if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that the citizen complied with the request does not negate the consensual nature of the encounter.”

“Video evidence of a traffic stop is obviously not required in every case, but in a case where there is video evidence which contradicts the officer’s live testimony about the basis for the stop, it may certainly be considered by the trial court.” No. 04-11-00133-CR (Tex.App.—San Antonio Dec 21, 2011)

      COA wrote the above in response to the State’s argument that “‘clear, video evidence’ is not required to support an investigatory stop” and the State’s argument that by deferring to the video, “[the State] is being implicitly held to a higher standard than the minimal threshold of ‘reasonable suspicion.’”

Officer had RS to stop D for failing to signal, despite D’s argument that the State did not provide evidence that “the signal lights on [D’s] vehicle, or any vehicle, stay on during a turn, or after a turn has been completed” to substantiate officer’s statement that he would have seen D’s rear signal lights as they came into his view after the turn if they had been activated prior to the turn. Stewart v. State, No. 14-10-01221-CR (Tex.App.—Houston [14th Dist] Dec 22, 2011, pet. refused)

      “[Officer] and [D] both testified that [D’s] signal would have continued blinking during the turn and for at least ‘a second, two seconds’ as [D] came out of the turn, if [D] had activated the signal prior to making the turn. . . . The trial court properly could have concluded that [officer] had specific, articulable facts that, combined with rational inferences from those facts, would lead [officer] reasonably to conclude that [D] had been engaged in criminal activity.”

When questioned by off-duty sheriff’s deputy about theft at D’s workplace, a reasonable person in D’s circumstance would have felt free to terminate the interrogation and leave despite D’s subjective belief that he was under arrest and despite officer accompanying D to the restroom following his statement. Aguilera v. State, No. 01-10-00304-CR (Tex.App.—Houston [1st Dist] Dec 29, 2011)

Officer had PC to arrest D for DWI, despite officer’s admission that the smell of alcohol on D’s breath did not necessarily indicate intoxication, and that D’s bloodshot eyes could have been caused by chemicals released from the vehicle’s air bag deployment. Jackson v. State, No. 05-10-00816-CR (Tex.App.—Dallas Jan 25, 2012)

                “The possibility of an innocent explanation for [D’s] bloodshot eyes and the smell of alcohol on his breath did not deprive [officer] of the capacity to entertain a reasonable suspicion of criminal conduct justifying further investigation.”