February 2016

The Michael Morton Act continues to transform the landscape of criminal justice in Texas. Lawyers who graduated from law school since its inception will never experience the difficulties defense lawyers once faced in investigating and preparing their cases.¹ Once, we had to cobble together investigations and guess at the State’s case, employ “examining trials”² in hope of discovery, and invoke the Gaskin rule.³ Remember those relics of a cat-and-mouse system of revelation? Today’s young lawyers and prosecutors and future judges will never have known it.

Today, we can now build robust cases in defense of our clients, thanks to the Michael Morton Act. We can offer juries a more thorough telling of the other side of the story, ensuring reliability of their determinations. We can challenge junk science and bad investigations. Like never before, we can help to ensure justice.

Lawyers Can Read the Offense Report—Why Can’t Trial Courts?

The Act’s influence may ultimately impact law in new, unanticipated ways. This article explores how it may change the nature of three pretrial litigation practices: motions to quash, as-applied challenges, and sufficiency adjudications. First, let us look at motions to quash the indictment/information which are based on some defect in pleading.

It has long been the law in Texas that challenges to charging instruments are purely a matter of pleading—i.e., charging instruments could be challenged “based solely upon the language within its four corners, as a pleading.”⁴ No court could ever “quash” or dismiss or set aside any charging instrument based upon the production of evidence.⁵ Anything outside pleading defects has always been irrelevant.

This long-standing jurisprudence made sense in light of the fact that no one except the prosecution actually knew the details of the State’s case. No court would be in a position to make a decision regarding a charging instrument based on any evidence presented by the defense because it could not know the State’s best case for guilt. Maybe the judge suspected that the official charge really was bogus, but a court could hardly make that determination based upon a one-sided, self-interested version of the facts offered by the defense. Today, thanks to the Morton Act, courts can make those calls decisively and reliably.

Courts Can Terminate Bad Cases

The Michael Morton Act does not alter challenges to charging instruments per se. The defense attorney should continue the good practice of examining the indictment or information for pleading defects and moving courts to correct them. But the Morton Act offers more. It makes it possible for the first time in Texas legal history to make pretrial determinations beyond mere pleading defects. It offers the promise of trial judges ending baseless prosecutions by straightforwardly dismissing cases where no offense has been stated. Is this some new-found form of judicial power? Hardly.

Courts have long exercised the power to decide the validity of initial accusations—i.e., affidavits asserting criminality for warrants of arrest or search.⁶ The Fourth Amendment mandates that only a judge may issue warrants. The Fourth Amendment also “requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following [a warrantless] arrest.”⁷ Judges thus can and do routinely read documents generated by law enforcement officials and decide whether official action—arrest or search—is justified under law. If it is lacking, the judge terminates further proceedings by refusing the warrant or rejecting the affidavit.

It is true that this judicial determination can ordinarily be made only within the “four corners of the affidavit,” which is to say that the examination for sufficiency is confined to the information contained within the document itself.⁸ Yet even within this framework, a court can still make its determination based on matters outside the affidavit. Specifically, the court can suppress the government’s evidence if the defense attorney establishes by a preponderance of the evidence produced at a suppression hearing that the affidavit was based on material falsities.⁹ Thus, judicial authority has long extended beyond the rejection of an affidavit for lack of probable cause—they possess the power to suppress evidence obtained through a false affidavit through an examination of evidence outside the four corners of the police “pleading.”

There is no reason why this familiar framework of judicial review of an initial accusation cannot be applied to charging instruments after the Michael Morton Act. It is time for defense lawyers to move judges to act precisely as they would as if they were presented with a search warrant affidavit that fails to establish probable cause—or an accusation proven to be false, or an arrest warrant for described acts that do not constitute a crime. It is time for offense reports to be used offensively by the defense through pretrial litigation. It is time for courts to make these determinations from the offense reports both sides now possess. Texas law has run out of excuses.

Give them the offense report, as Tom Delay fervently hoped he could, and let a trial judge make the same determination appellate justices, justices of the peace, municipal judges, and magistrates of all stripes routinely make. Trial judges can read the Penal Code. Trial judges can also now read offense reports and surely determine whether a criminal offense is stated. If defense counsel finds herself searching an offense report for acts that might violate criminal law, perhaps she should file a motion, attach under seal the offense report, and ask the trial court to see if it can find a crime. If no crime can be found, then the court should dismiss the case and let that person go on with a personal life without further governmental interruptions.

A dismissal under these circumstances would save everyone time and energy best spent elsewhere on other cases where criminality is not so strained that it must be searched for. These cases involve people who should be spared any further experience with the criminal justice system. For those cases in search of a Penal Code offense to be violated, trial courts should dispatch them from the docket routinely and without hesitation.

You’ve Read the Report—No Crime

What if the offense report accurately references a penal statute, but the stated facts do not trigger it? What if a trial judge could read an offense report, assume all of it to be true, including hearsay, reasonable inferences, and everything in between, yet conclude the facts of the offense report do not violate law? The Michael Morton Act lets trial judges follow their constitutional role and do the right thing.

Before the Michael Morton Act, the Court of Criminal Appeals reaffirmed its preclusion of defendants challenging penal statutes in a pretrial setting on the grounds that the application of the statute would be unconstitutional. The rationale has been that only “during or after a trial on the merits” may a trial court “have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”¹⁰

The Michael Morton Act removes this rationale. Courts can have all the “particular facts and circumstances of the case” necessary by reading the offense reports with the assumption that all assertions therein are true. Then it can consider the de­fendant’s argument that the statute under which he has been charged will be applied unconstitutionally against him. If it is unconstitutional to apply the statute, the court can dispose of the case without the necessity of trial, thereby conserving judicial resources and preventing an unconstitutional prosecution—precisely the purpose of pretrial determinations.¹¹

Similarly, an accusation that does not constitute an offense could be dismissed pretrial. The long-standing objection—that the court cannot make that call because it cannot know the facts of the case—no longer exists since the Michael Morton Act. A judge can read, and there is now something for the judge to read which goes to the merits of the case itself. A judge can peer into the government documents and see if she can find a crime just as easily as she can re-read an affidavit in search of probable cause. Harassment prosecutions alone could be prevented merely by judges reading the offending email.

The co-defendants prosecuted for Election Code violations in the corrupt Tom Delay (former Texas congressman) scheme certainly would have benefited from the ability of the trial courts to reach the merits of their claim that they committed no crime. They certainly tried to get the matter settled pretrial, but the Court of Criminal Appeals precluded it.¹² Ultimately, the Court would find that the alleged conduct failed to constitute a violation of the law.¹³ Had this procedure been available to the co-defendants to Delay’s scheme to circumvent Texas election laws, they would have escaped conviction, as he ultimately did.¹⁴

While Delay was denied this procedure, former Governor Rick Perry may yet win it. His pretrial writ appeal is pending at the Court of Criminal Appeals, and he is making this argument. Or I should say the Third Court of Appeals is begging the discretionary court to permit appellate courts to entertain “as applied” challenges to statutes. In a interminably long opinion, Ex parte Perry, No. 03-15-00063-CR (Tex. App.—Austin, July 24, 2015), the Third Court complains “its hands are tied” with such fervor and repetition that its opinion looks more like a brief to the CCA than an opinion. Keep your eye on Ex parte James Richard “Rick” Perry, PD-1067-15. On October 7, 2015, the Court of Criminal Appeals granted his petition for discretionary review, and the cause was argued on November 4, 2015. If Perry’s appeal maintains this speed, look for a decision by early Spring.

Ex parte Carrillo and the Vacuum of True Remedies for Discovery Abuse

In Ex parte Carrillo,¹⁵ the relator¹⁶ sought to compel the Lubbock County District Attorney to provide discovery “as soon as practicable,” and end its practice of denying discovery until after indictment. The Court of Criminal Appeals summarily denied motion for leave to file, but Judge Alcala issued a concurring opinion. She found that it was “unclear” whether the relator had a clear right to relief in light of the “leeway” that 39.14’s phrase “as soon as practicable” appears to provide. She did agree that the DA’s policy of withholding discovery until after indictment was wrong:

[T]he Legislature’s broad use of the phrase “any matter involved in the action” cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation. I, therefore, agree with relator’s assertion that, by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the “as soon as practicable” language into “as soon as practicable after return of indictment by the grand jury.”

Judge Alcala also found that there exists two remedies for the State’s failure to abide by the Morton Act: “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Really? Let’s see how that works out.

Discovery Abuse: Late Disclosures

Tardy Brady disclosures put the burden on the defense to demonstrate how it was prejudiced by the late revelation.¹⁷ That rule precludes a reversal if the defense attorney put the late disclosure to “effective use at trial.” This “effective use” rule puts the defense lawyer in a damned bind: Do nothing with the new exculpatory evidence and you have just increased the odds for conviction; be “effective” and waive goodbye to a new trial in which defense counsel would be far more effective. This state of affairs provides no remedy and no deterrence against late Brady disclosures. On the contrary, it effectively rewards gamesmanship whereby a prosecutor can avoid any consequence simply by disclosing Brady material just before or even during trial.

Tardy disclosures of prejudicial evidence, on the other hand, appear to put the burden on the State to justify why it with­held evidence of, say, its best prosecution witness or most prejudicial evidence until late in the process. Under current law, such evidence is excluded only if the violation of a discovery order is “willful.”¹⁸ Oprean v. State is the latest affirmation of the remedy of exclusion.¹⁹ What, then, is “willful” in the context of discovery abuse?

The Oprean prosecutor—previously ordered to give “[a]ll videos” to defense counsel—only did so after the jury found the defendant guilty. The video was the defendant’s unflattering previous DWI. The prosecutor knew about the videotape and had signed the original trial judge’s discovery order to disclose it before trial.

When the prosecutor sought to introduce the tape, defense counsel objected he had never seen it and moved to exclude it. At that point in the trial, a new judge had replaced the judge who had crafted the original discovery order. Facing the new judge, the Oprean prosecutor argued that the original order did not specify punishment evidence under Article 37.07—an apparent parsing of the discovery order. The prosecution also argued that defense counsel never asked for such 404(b) notice (if true, it is utterly inexcusable).²⁰

“Because the prosecutor knew about the discovery order and chose to invoke Article 37.07,” a majority of the Court concluded, “she made a conscious decision to violate the plain directive of the discovery order.” It was, the Court found, a “calculated effort to frustrate the defense.”²¹ The Court implicitly recognized how the prosecution sought to manipulate the new judge by exploiting the original order.

If the prosecutor has deliberately delayed the disclosure of prejudicial evidence, do not move for exclusion until after jeopardy has attached.²² Otherwise, the State can appeal the exclusion of its evidence. This is precisely what happened in State v. LaRue,²³ another case involving the late disclosure of prejudicial evidence.

Defense counsel in LaRue sought the results of DNA tests to defend his client accused of capital murder. The prosecutor got the lab report on April 17, 2002, and after repeated requests by defense counsel, finally disclosed it to the defense attorney—after the commencement of jury selection on February 13, 2003. The trial court excluded the evidence as the remedy for the prosecution’s discovery abuse, just as Judge Alcala contemplated in her Carrillo concurrence.

The Court of Appeals reversed, and the Court of Criminal Appeals affirmed. “The State should have produced the evidence in more timely fashion,” the LaRue Court frowned, “especially considering the repeated requests made by defense counsel.”²⁴ But the Court found the prosecutor did not intend to violate the discovery order (which was vague as to time, place, and man­ner), nor did the prosecutor intend to harm the defense. The prosecutor may well have been grossly negligent, even reckless, but because he did not act in bad faith, he did not act “willfully,” the Court concluded, and hence the evidence should not have been excluded.

If the rest of the Court shares Judge Alcala’s confidence that the exclusion of evidence and appeal are adequate remedies, then the discovery process is likely to settle into something less than the promise of the Michael Morton Act’s “as soon as practicable” requirement. Unless bad faith can be proven, there will be nothing to discourage prosecutorial procrastination, and defense counsel should expect surprising prejudicial evidence to appear sometime around trial with the same leniency as last-minute Brady revelations—precisely the custom before the discovery statute was changed, as if the Morton Act was never enacted.

Enforcing the “As Soon As Practicable” Requirement

Competent defense counsel will seek discovery as soon as possible. Not only can defense counsel find witnesses and evidence while still relatively “fresh,” but a speedy investigation can inform the prosecutor that the case he was handed is actually half-baked, or that the police got the wrong person, or the case is tainted by corruption, or other insights. Grand juries can be better informed. In short, the system as a whole benefits greatly from the defense getting discovery quickly.

Earlier this year, the state defense bar discovered that in some jurisdictions peppered around the State, the prosecution had decided that it had no duty to disclose until after indictment. A district attorney’s policy of providing discovery based on some self-invented condition plainly violates Rule 8.04(a)(12) of the Texas Disciplinary Rules of Professional Conduct, as the Professional Ethics Committee of the State Bar of Texas has held. The Committee reasoned:

Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the pro­vi­sions of article 39.14 unless de­fense lawyers first agreed to waive cer­tain rights of their clients. Under ar­ti­cle 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose con­di­tions not found in article 39.14 before making the re­quired disclosures.

Tex. Comm. on Prof’l Ethics, Op. 646 (2014). See also Tex. Disciplinary R. Prof’l Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West 2014). These jurisdictions are a clear minority, one that continues to shrink.

Judge Alcala’s concurrence in Ex parte Carrillo affirmed that the setting of preconditions was a misguided reading of the plain language of the statute. But she also did not think the matter was remedied by way of an application for writ of mandamus. How, then, can the defense obtain timely discovery from DAs who have decided to comply with the statute only after indictment (or some other condition, like “upon signing this document”)?

The filing of a motion in the district court is useless because the court only obtains jurisdiction after indictment. Tex. Const. art. V, § 12(b). Instead, the defendant should file a writ application in the district court so that it has jurisdiction to enforce Article 39.14 of the Code of Criminal Procedure.²⁵ The district court can then order the district attorney to comply with the statute by promptly and diligently providing discovery, as explicitly required by law.

As far as late disclosures, the current remedies are uncertain and inadequate. If the courts will do little else than give occasional stern lectures, the legislature may need to step in. I would suggest a statute that gives the defense an option: a mandatory continuance for a period of time that would ensure the full and fair presentation of the newly disclosed evidence or a mandatory mistrial in cases of late Brady disclosures. My bet would be that this form of prosecutorial misconduct would evaporate pretty quickly, and the “as soon as practicable” would be honored as if it were mandatory Texas law (it is).

As for late disclosure of prejudicial evidence, I would give the defense the option of a mandatory continuance to investigate and challenge the newly disclosed bad evidence or exclusion of the evidence. I would also tie the exclusion to its effect on the trial and not the good or bad faith of a particular prosecutor.

In the same way Brady violations are regarded,²⁶ the trial judge should not care so much why the disclosure was so late, but should consider its degree of prejudice to the defendant’s legal defense. Put another way, I would have the unethical prosecutor have his bar card yanked for bad faith later, but I more immediately care about the fairness of the proceedings against my client. I want a remedy that speaks directly and effectively to this basic interest.

Trial judges can readily exclude such evidence via the notice provisions in the evidentiary rules and can also sanction the prosecution for deliberate sandbagging. Cases where the prosecutor acted in bad faith are easily remedied by a diligent court. Absent those scenarios, however, trial courts should fully exploit their authority to discourage prosecutorial gameplay.

I have not asked Michael Morton about his views on the procedural and ethical considerations of how to deal with this new frontier of prosecutorial misconduct. But I believe that if he had to choose between well-informed lawyers before trial and the disbarment of a prosecutor 25 years later, he would opt for the former. He, like anyone else accused of crime, should not have to choose, but be guaranteed both a fair trial and an honest prosecutor. We need truly adequate remedies against this form of misconduct—remedies we do not currently have, but the Michael Morton Act surely demands. Foremost, we must ensure fair trials so that the innocent may be acquitted. We can get to disbarments and 10-day sentences later.

Notes

1. For a taste, the reader is referred to “Texas Discovery: Where We Were, Where We Are Headed” (Voice for the Defense, November 20, 2013).

2. Tex. Code Crim. Pro. 16.01.

3. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1962).

4. State v. Seibert, 156 S.W.3d 32, 36 (Tex. App.—Dallas 2004, no pet.)(emphasis added).

5. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994)(Clinton J., dissenting).

6. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

7. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

8. See, e.g., Hegdal v. State, 488 S.W.2d 782 (Tex. Crim. App. 1973); McLennan v. State, 3 S.W.2d 447, 448 (Tex. Crim. App. 1928).

9. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

10. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

11. Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)(pretrial as-applied challenges are appropriate “for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served”).

12. Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010).

13. Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014).

14. Full disclosure: I wrote the amicus brief on behalf of Texans for Public Justice and argued that Tom Delay was guilty and his conviction should be affirmed.

15. Ex parte Carillo, Nos. WR-83,345-01 & WR-83,345-02 (Tex. Crim. App., June 26, 2015).

16. Relator was represented by Chuck Lanehart, Allison Clayton, Laurie Key, Dick Baker, and Philip Wischkaemper.

17. Little v. State, 991 S.W.2d 864 (Tex. Crim. App. 1999).

18. Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). The majority opinion also left open the possibility of exclusion of evidence for negligent or reckless failure to comply with a discovery order “if the appellant suffers some disability by virtue of the lack of discovery and the trial court takes no timely corrective action.” Id. at 855 n.8.

19. Oprean v. State, 201 S.W.3d 724 (Tex. Crim. App. 2006).

20. If you hear the word “besides” in an answer for the quest for truth, keep asking.

21. Oprean at 728.

22. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996). In non-jury trials, jeopardy attaches under the federal constitution when the first witness is sworn or the judge begins to hear evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Under the Texas Constitution, however, jeopardy attaches in a bench trial when both sides have announced ready and the defendant has pled to the charging instrument. State v. Torres, 805 S.W.2d 418 (Tex. Crim. App. 1991). For purposes of precluding a State appeal, you should follow the federal rule.

23. State v. LaRue, 152 S.W.3d 95 (Tex. Crim. App. 2004).

24. Id. at 97.

25. The application for writ of habeas corpus should cite the district court’s broad authority under Article 5, § 8, of the Texas Constitution to issue writs. It should also remind the court of its inherent authority to manage its own docket. State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002).

26. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct 1555, 131 L.Ed.2d 490 (1995)(“the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).

I. Introduction

If you are a manufacturer of a product, it is important to get that product to your customers as quickly as possible, with the least amount of hassle and cost. If your product just happens to be illegal drugs, such as cocaine or marijuana, your needs are no different—you still want an effective and efficient flow of goods from the point of origin to the point of consumption. To achieve this goal, you may be required to use the services of couriers to transport your product to the distributors or to carry the proceeds back to you. In many instances, your couriers will use a motor vehicle, ranging from cars to vans to tractor trailers.¹

The primary job of these couriers is to deliver the goods to the intended destination. This is not an easy task, as couriers must run the gauntlet of multiple law enforcement agencies, including U.S. Immigration and Customs Enforcement (ICE), Border Patrol agents, highway patrol officers, sheriff departments, and local police departments. The job has been made even more difficult by the traffic-stop tactics employed by these law enforcement agencies.

How do you, as a supplier, increase the odds of your couriers safely arriving with your product? This guide could help. Gleaned from case law (primarily from the Fifth Circuit and Texas courts), this guide provides many examples of what not to do. Or, put another way, this guide sets out examples of alleged conduct that initially resulted in the courier’s vehicle being stopped. It also includes alleged behavior by the courier(s) after the stop that ultimately resulted in a search of the vehicle and the seizure of the product. It is important to remember that even where the evidence is seized but ultimately suppressed, the merchandise is lost nonetheless, which is what you are trying to prevent. In the long run, if these situations can be avoided, then your distribution system should run smoothly.

II. Law Regarding Traffic Stops

A. The Initial Stop

In Terry v. Ohio, the United States Supreme Court held that police officers may detain individuals briefly on the street, even though there is no probable cause to arrest them, as long as they have a reasonable suspicion that criminal activity is afoot.² Courts have applied the reasoning in Terry to traffic stops, holding that the “stopping of a vehicle and detention of its occupants constitutes a ‘seizure’ under the Fourth Amendment.”³ A traffic stop, whether supported by probable cause or reasonable suspicion, is treated as a Terry stop.⁴ To determine the legality of police investigatory stops, the Fifth Circuit utilizes a two-part test: 1) “examine whether the officer’s action was justified at its inception”; and 2) “inquire whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.”⁵

As for the first prong, if a traffic violation actually occurred, no matter how minor, the stop will be justified.⁶ The second prong requires much more analysis, as a bright-line approach to reviewing the reasonableness of traffic-related detentions has been rejected.⁷ “Whether an officer’s actions are ‘reasonably related in scope to the circumstances that justified the stop’ is a fact-specific question often informed by ‘timing and sequence.’”⁸ A search of a vehicle “is not reasonably related to the circumstances justifying a traffic violation stop when the search in ques­tion occurs after the time required for an officer to issue a citation (or to decide against doing so) and to complete a ‘computer check’ for outstanding warrants and vehicle theft.”⁹

In United States v. Santiago,¹⁰ the court set out the basic rule regarding an officer’s actions during a traffic stop:

During a traffic stop, an officer can request a driver’s license, insurance papers, and vehicle registration; he or she may also run a computer check and issue a citation. The officer may detain and question the subjects of a traffic stop during the time a computer check is being conducted. Furthermore, this court usually does not scrutinize the particular questions asked during a stop so long as they tend to relate to the purpose of the stop.

* * *

However, a Fourth Amendment violation occurs when the detention extends beyond the valid reason for the stop. Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed.

Id.

B. Prolonging the Stop Requires Reasonable Suspicion

“[T]o prolong a detention after issuing a citation or determining that no citation should be issued, an officer must have a ‘reasonable suspicion’ that a crime ‘has been or is being committed.’”¹¹ “Reasonable suspicion ‘exists when the detaining officer can point to specific and articulable facts that, when taken together with rational inferences from those facts, reasonably warrant the search and seizure.’”¹² An officer’s “hunch” or “feeling” that a crime has been or is being committed is not sufficient to support reasonable suspicion.¹³

C. Recent K-9 Decision

Recently, the United States Supreme Court made it a little more difficult for law enforcement to use drug-detecting dogs to locate merchandise. In Rodriguez v. United States, the Court held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”¹⁴ In that case, an officer stopped a vehicle for temporarily driving on the shoulder of the road.¹⁵ After running a license and warrant check, the officer returned the driver’s information and issued a warning. At that point, the purpose of the stop had ended, but the officer requested permission to run his drug dog around the vehicle. Despite the driver’s refusal to give consent, the officer told him to turn off the ignition, exit the vehicle, and stand in front of the patrol car. The dog alerted to the presence of drugs, and a search of the vehicle revealed a large bag of methamphetamine.¹⁶ The question of whether the officer had reasonable suspicion to justify detaining the driver beyond completion of the traffic infraction investigation was not considered by the lower appeals court and thus remained open for consideration on remand.¹⁷

With this background in mind, the following information should be used to prepare your vehicles and to train your couriers so that your merchandise will safely reach its intended destination. Bear in mind that the use of this guide will in no way guarantee that your courier will not get stopped or that your merchandise will not be confiscated. However, with a little effort on your part, you might just lower the chances of that happening.

III. Make Certain Vehicle Is in Good Condition

THE WOLF: About the car, is there anything I need to know? Does it stall, does it make a lot of noise, does it smoke, is there gas in it, anything?
JULES: Aside from how it looks, the car’s cool.
THE WOLF: Positive? Don’t get me out on the road and I find out the brake lights don’t work.
JULES: Hey man, as far as I know, the m——r’s tip-top.¹⁸

The Wolf was justified in being concerned about the condition of the car. Driving a vehicle that has a malfunctioning taillight, headlight, or other similar non-functioning equipment could easily lead to a traffic stop and the loss of product and/or funds. Before a courier leaves on his delivery run, it is imperative that the vehicle’s equipment be checked out from bumper to bumper.

For instance, a broken or non-functioning taillight can get your courier pulled over. In United States v. Andres,¹⁹ an officer observed a red pickup truck pulling a car trailer. The officer noticed that the trailer’s taillights were “flicker[ing] as if there was a mechanical issue.” After having the driver sign the traffic ticket, the officer asked permission to search for drugs with his dog, and the driver consented. Officers ultimately found over 20 kilograms of cocaine in a hidden compartment in the truck.²⁰ A bad headlight can also result in a traffic stop. In State v. Williams, officers patrolling a “high crime area” at night spotted a vehicle with defective driver’s side headlight and blue accessory light.²¹ A subsequent search of the car found a large bottle of cough syrup containing codeine.²²

Something as simple as window tint can result in a traffic stop. In Caraway v. State, a DPS trooper made a traffic stop because he believed that driver’s vehicle had illegal tint on its win­dows.²³ After testing the window on the passenger’s side with a window tint meter, the officer determined that the tint was darker than the legal limit. Before writing the driver a warning, the officer asked for and received permission to search the car. He ultimately found 1,800 grams of cocaine.²⁴ The lesson learned: Get your own window tint meter and test the vehicle before it leaves.

If your drivers are operating in Texas, make sure that the ve­hicle has a front license plate. One supplier did not and it cost him dearly. In August 2004, officers initiated a traffic stop on a Dodge Durango because it was missing its front license plate, a violation of Texas traffic laws.²⁵ A search revealed fresh glue on the carpet, which was a different color, and tool marks on the bolts on the back seat. The car was taken to a shop, and 15 pounds of cocaine were found in a hidden compartment behind the back seat.²⁶ And speaking of license plates, make sure the lights illuminating the plate work²⁷ and make certain the plate is not “obstructed.”²⁸ Both of these will give law enforcement jus­ti­fication to stop the vehicle.

Even where the officer is mistaken about the traffic violation, and even if the seized evidence is ultimately suppressed, your product is still lost. In State v. Mazuca,²⁹ an officer saw a yellow Mustang that, in his opinion, was emitting white light from the taillights, where the statute required that they be red.³⁰ The vehicle was stopped and the passenger was arrested on outstanding warrants, but not before the officer found approximately 400 grams of ecstasy in the passenger’s pocket. The Mustang’s owner testified at the suppression hearing that he had modified his taillights to include “some clear rear lights,” but they retained “red lights in the middle[.]”³¹ The trial court suppressed the seized evidence based on the fact that no traffic violation had occurred, and the El Paso Court of Appeals affirmed.³² The Court of Criminal Appeals held that the evidence should not have been suppressed because of the outstanding warrants and because of the proximity of when the officer became aware of the warrants and when the drugs were found.³³ However, despite the particular outcome in the courts, the suppression of the evidence is of little comfort for a supplier because your inventory has been confiscated.

IV. Obey the Traffic Laws

TROOPER (on motorcycle): Pull over!
HARRY: No, it’s a Cardigan! But thanks for noticing!
LLOYD: Yeah. You wear boots man!
TROOPER: Pull your car to the side of the road! License and registration, please. You fellas were going kinda of fast back there wouldn’t you say?³⁴

Assuming you have checked out the vehicle and made sure it is “tip-top,” the next step is to stress upon your driver the im­portance of obeying the traffic laws. Speeding (like Harry and Lloyd, especially in a vehicle that resembled a large, shaggy dog), failing to use a turn signal, drifting over the fog line, failing to maintain single traffic lane, or not wearing a seatbelt can all lead to a traffic stop and the potential loss of product. Even an omission as innocuous as failing to dim your headlights can end badly. In State v. McCray, the driver failed to dim the bright lights on his automobile as he passed a Longview police officer.³⁵ The police officer flashed his bright lights, and the driver still failed to dim his lights, which resulted in a traffic stop. Tell your drivers to pay attention to what is going on around them, and your product will make it to its destination.

Then there is the difficult-to-refute allegation of following too closely. The Texas Transportation Code dictates that “[a]n operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that . . . the operator can safely stop without colliding with the preceding ve­hi­cle. . . .”³⁶ If law enforcement is looking for any reason to make a traffic stop, a violation of this statute could provide that reason. In United States v. Gillyard, a highway patrolman stopped two vehicles traveling eastbound on Interstate 20 between Dallas and Shreveport, Louisiana, for following too closely behind an 18-wheeler.³⁷ The stopped vehicles were a red Chrysler Concorde, which was behind the 18-wheeler by two car lengths, and a Pontiac Grand Am that was one car length behind the Concorde. After the driver of the Concorde got out, the passenger slid into the driver’s seat and drove off. He was captured after a high-speed chase, and six bricks of powder cocaine were found in the trunk of his car.³⁸ The moral: Tell your drivers to keep a proper distance between their vehicle and others on the road. It might also be a good idea to tell them that trying to outrun law enforcement is not a good solution either.

Turn signals, which have been available on vehicles for over 100 years, are another source of traffic stops. In 1907, Percy Douglas-Hamilton applied for a patent for a device “indicating the intended movements of vehicles.”³⁹ Buick was the first U.S. automaker to offer factory-installed flashing turn signals in 1939.⁴⁰ Although turn signals are now required for all vehicles (except antique vehicles that never had them), many drivers seem totally oblivious to their existence. This inattention to detail can be detrimental to the transportation of your merchandise. In Rodriguez v. State, officers in an unmarked car followed the defendant’s vehicle until they saw the defendant fail to use a turn signal.⁴¹ The officers contacted a nearby uniformed patrol officer and asked him to stop the vehicle for the traffic violation. After the driver gave consent to search, the patrol officer found three “brick-like objects” containing over 400 grams of cocaine.⁴²

Just like turn signals, motorized vehicles have been equipped with speedometers for over 100 years. The Oldsmobile Runabout, released in 1901, was the first automobile line equipped with a mechanical speedometer.⁴³ However, when it comes to monitoring speed, some drivers are just not able to pay attention, and inattentiveness leads to traffic stops and lost prod­uct. In Madden v. State,⁴⁴ an officer stopped two vehicles that were traveling together for speeding. The first was traveling 61 mph and the other was traveling 63 mph in a 55 mph construction zone on Interstate 10 in Harris County.⁴⁵ A subsequent search, after a K-9 unit alerted on both vehicles, revealed a Rubbermaid container filled with both dog food and a book bag with three bricks of cocaine inside.⁴⁶ In hindsight, perhaps packing the drugs in dog food was not the best choice, given the use of drug-detecting dogs. Regardless, whether “Fido” alerts to the drugs or his potential supper, the merchandise will most likely be found and confiscated, a fate you are trying to avoid.

Along with failing to use turn signals, some drivers are adverse to using seat belts. On January 1, 1968, Congress required all vehicles (except buses) to be fitted with seat belts in all designated seating positions.⁴⁷ Mandatory seatbelt use by front-seat passengers was instigated in Texas in 1985, and in September 2010, all passengers inside a motor vehicle had to be secured by a safety belt, regardless of age or the location of the seat.⁴⁸ A driver not wearing a seatbelt can easily lead to a traffic stop and confiscated product. In United States v. Baker, two Beaumont police officers were patrolling Interstate 10 when they saw a white Dodge and noticed that the passenger was not wearing a seat belt.⁴⁹ After stopping and searching the Dodge, officers found a 5.5 pound brick of marijuana.⁵⁰ Therefore, an act (buckling a seat belt) that would have taken just a few seconds to complete ultimately cost a supplier his merchandise.

Finally, make certain that your drivers understand that the lines on the road are for driving between, not over. Many a load of cargo has been lost due to drivers crossing the fog line or the center line. In United States v. Escalante, 20 kilos of cocaine was seized because the driver crossed “the lane divider lines two or three times.”⁵¹ Similarly, in Johnson v. State, crack cocaine was seized where the driver of a Dodge truck failed to maintain a single lane “when its tires crossed over the center dividing line of the highway.”⁵² As Ricky Van Shelton said, “Keep It Between the Lines.”⁵³

V. Behavior After Traffic Stop

CHEECH (passenger): Where’d you learn how to drive, man?
CHONG (driving): We got stopped by the cops. I don’t have a license.
CHEECH: Why didn’t you tell me that? What are we going to do?
CHONG: Change places with me. I don’t think he’s seen us.
CHEECH: No, no. Sit down.
CHONG: I’ve got my leg caught.
CHEECH: Man, like, get over, man.

Police officer arrives at vehicle window to find Cheech in the driver’s seat with Chong sitting on his lap, smiling sheepishly.⁵⁴

Assuming your driver cannot transport the product without committing one of the hundreds of potential traffic violations, and he is unlucky enough to be stopped, law enforcement will most likely begin looking for behavior, such as the above furtive movements, that will perhaps give them reasonable suspicion to prolong the stop and ultimately search the vehicle. The most prevalent behavior cited by officers is nervousness by the driver and/or occupants.⁵⁵ While nervousness, by itself, will not support reasonable suspicion,⁵⁶ nervous behavior when coupled with other factors can lend support for continuing the detention. Below is a small sample of Fifth Circuit and Texas cases where ner­vousness, when combined with other factors, provided a reasonable suspicion for the officers to prolong the traffic stop and ultimately confiscate product.

• Madden v. State, 242 S.W.3d 504, 516–17 (Tex. Crim. App. 2007) (nervousness was not “critical” where presence of two Florida “drug convoy” cars, diversionary tactics of one driver, overdue rental car, and inconsistent stories about where the driver had been, for how long, and why, provided sufficient reasonable suspicion to detain the driver);
• United States v. Fishel, 467 F.3d 855, 856 (5th Cir. 2006) (when asked for consent to search vehicle, driver’s “legs seemed to fail and he had to brace himself against his vehicle; he then changed his story of ownership and said that he could not give consent to search the vehicle because it did not belong to him”);
• But see Parker v. State, 182 S.W.3d 923, 924 (Tex. Crim. App. 2006) (“slightly nervous” driver, rental car not in driver’s name, fast food wrappers in the car but no visible luggage, and round-trip between Dallas and Houston, K-9 search—motion to suppress granted and affirmed by Court of Criminal Appeals even though driver not listed on car rental agreement as driver);
• United States v. Brigham, 382 F.3d 500, 515 (5th Cir. 2004) (drivers not listed on rental agreement, nervous behavior (hands were shaking), lack of eye contact by individuals, and conflicting stories about their arrival time in Houston and who they had visited there supported reasonable suspicion);
• United States v. Henry, 372 F.3d 714, 715–16 (5th Cir. 2004) (driver’s “extreme” nervous behavior, repeating officer’s questions before answering, inability to detail his travel plans, driver’s inability to explain how he knew the passengers, driver’s baggy clothes, driver’s fake iden­ti­fi­ca­tion, and passenger’s nervousness and lack of “even rudimentary knowledge about the purpose of the trip” gave officer “articulable reasonable suspicion of illegal activity”);
• United States v. Grant, 349 F.3d 192, 198 (5th Cir. 2003) (driver “appeared nervous” and passenger “had been fumbling around in the passenger seat,” inconsistent stories about their stay in Houston, and driver’s “admission that the two men had smoked marijuana in the car created reasonable articulable suspicion”);
• United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (Driver “appeared very nervous, was hesitant in answering the most basic questions about his travel plans, lied about why he didn’t have a driver’s license, was 500 miles away from the road leading to his claimed destination, was on a road associated with drug trafficking, and had been arrested for drug trafficking in the past. These facts together gave rise to a reasonable articulable suspicion that Gonzalez was involved in drug trafficking.”).

On the other hand, if the driver remains calm, that fact can be used as evidence that the driver’s consent to search was freely and voluntarily given. In United States v. Brown, the defendant contended that the search of his vehicle was unconstitutional because his consent to the search was not voluntary.⁵⁷ The court disagreed, citing the following items supporting a finding of voluntariness: 1) the driver was “calm and cooperative” when speaking with the officer; 2) driver gave consent approximately one minute after he exited the vehicle, thus he was not subject to “a lengthy interrogation or any coercive police tactics”; 3) officers testified that no threats, force, or intimidation were used to obtain the consent; and 4) the driver knew he could decline consent because he had done so twice before granting consent.⁵⁸

In any case, if the driver is the nervous type, make certain that he or she wears a loose-fitting shirt, preferably with a high collar that will hide the neck area. As an indication of nervousness, officers are becoming more adept at seeing throbbing neck arteries or veins⁵⁹ and/or hearts beating through tight shirts.⁶⁰ Just recently, in United States v. Pena-Gonzalez, the Fifth Circuit found reasonable suspicion based, in part, on the officer observation of the driver’s “carotid artery visibly puls[ing].”⁶¹

If you use multiple individuals in one vehicle to transport the product, it must be stressed that they GET THEIR STORIES STRAIGHT! Where are they going? Where have they been? How long were they there? What did they do? Who did they see? Where did they stay? Who did they stay with? While inconsistent stories between a driver and a passenger may not, by itself, support a reasonable suspicion of drug trafficking,⁶² if the inconsistent stories are coupled with other factors, then the officer can prolong the stop, which could be detrimental to your supply chain. For instance, in United States v. Shabazz, the officers questioned the driver and passenger (Parker) individually after a traffic stop for speeding.⁶³ The driver stated that he and Parker had been visiting Parker’s sister in Houston and they had stayed there for a week, since the Fourth of July. Parker, on the other hand, said that they had only been in Houston since the eighth, which was just two days prior to the stop.⁶⁴ After the driver gave oral and written consent, the officers found 300 grams of crack cocaine and over 100 grams of powder cocaine.⁶⁵

VI. Contents of the Vehicle in Plain Sight (or Plain Smell)

Law enforcement officers have cited a litany of seemingly innocuous items seen in plain sight inside a vehicle in an attempt to bolster reasonable suspicion. These items include: 1) fast food wrappers and no visible luggage;⁶⁶ 2) maps;⁶⁷ 3) two shirts hanging in the rear passenger compartment, a hygiene bag on the back seat, and the car’s clean interior;⁶⁸ 4) body odor emanating from the vehicle, the unkempt condition of the vehicle, and the presence of food wrappers, soda cans and cooler;⁶⁹ 5) multiple air fresheners, Pancho Villa and St. Jude symbols on the driver’s key chain, a large number of bumper stickers supporting law enforcement, and three rosaries hanging from the rearview mirror;⁷⁰ 6) multiple cell phones;⁷¹ and 7) odor of dryer sheets and mothballs.⁷² Therefore, keep the vehicle interior clean, take a shower, profess no religious affiliation, and go easy on the air freshener.

VII. Request to Search/Consent

As a last line of defense in protecting the merchandise, drivers should be instructed that under no circumstances are they to give consent to search the vehicle. No matter how well the merchandise might be concealed, it will be found. Hidden in the air conditioner vents? Found!⁷³ Stashed in a secret compartment on the firewall, under the windshield? Found!⁷⁴ Concealing $502,020 in a cavity behind the speakers of Freightliner tractor-trailer? Found!⁷⁵ The bottom line: Consent equals lost merchandise, which is bad for business.

The typical encounter happens something like this:

OFFICER: I’m going to write you a warning for [fill-in-the-blank traffic violation].
DRIVER: Thank you.
OFFICER: By the way, we are performing a drug interdiction exercise. Do you mind if I ask you a few questions?
DRIVER: No.
OFFICER: Are you carrying any illegal drugs or large amounts of money in your vehicle?
DRIVER: No.
OFFICER: Do you mind if I search your vehicle, or do you mind if I run my dog around your vehicle.
DRIVER: No.

With a well-trained driver, which you should have done before he leaves with your product, the above scenario should happen something like this:

OFFICER: I’m going to write you a warning for [fill in the blank traffic violation].
DRIVER: Thank you.
OFFICER: By the way, we are performing a drug interdiction exercise. Do you mind if I ask you a few questions?
DRIVER: Yes, I mind. Am I free to go?
OFFICER: Are you carrying any illegal drugs or large amounts of money in your vehicle?
DRIVER: No. Am I free to go?
OFFICER: Do you mind if I search your vehicle, or do you mind if I run my dog around your vehicle.
DRIVER: Yes I mind, or no you many not run your dog around my vehicle. Am I free to go?

If your driver responds in this way, it might cause the officer to think twice about prolonging the stop and searching the vehicle, and that is the result you want.

VIII. Conclusion

To sum up, to increase the odds of getting your merchandise to its final destination, follow these simple rules:

• Make sure the vehicle is in “tip-top” condition;
• Stress that the driver must obey ALL traffic laws;
• Do not plaster the vehicle with bumper stickers supporting law enforcement;
• Do not have Pancho Villa and St. Jude symbols on the driver’s key chain;
• Do not have rosaries hanging from the rearview mirror;
• Do not have open maps and/or fast food wrappers visible in the vehicle;
• Do not overdo the air fresheners or dryer sheets or moth balls;
• If stopped, the driver must not be nervous, but he should not be too calm either; he should make eye contact at all times; he should wear a loose-fitting shirt that hides his neck; he should not make any furtive movements;
• If more than one driver is used, make sure they have their stories straight;
• If the driver’s story includes a claim that he is on vacation, put a suitcase in the back seat; and
• Do not give consent to search.

Following these guidelines is no guarantee that your merchandise will safely reach its destination. However, if you adhere to the suggestions contained herein, your chances of successfully getting your product to its destination should be greatly enhanced. Or, perhaps you might just want to find another way to make a living. Long prison sentences and forfeiture of property may not be worth the risk. Maybe there is a hedge fund that needs someone to sell derivatives to unsuspecting buyers. Those guys never go to prison!

Notes

1. “Drug traffickers use various types of vehicles to conceal their contraband, ranging from nondescript cars, commercial trucks, vans, and tractor-trailers to the popular minivans driven by ‘soccer moms.’” See Dept. of Justice Microbulletin, Vol. XXXVI, No. 12, December 2003, available at: http://www.dea.gov/pr/micrograms/2003/mg1203.pdf (last visited Aug. 28, 2015).

2. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3. See United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).

4. Id.

5. See United States v. Cavitt, 550 F.3d 430, 435–436 (5th Cir. 2008).

6. See, e.g., United States v. Zamora, 661 F.3d 200, 207 (5th Cir. 2011) (missing front license plate and canceled rear license plate justified traffic stop).

7. United States v. Cavitt, supra, 550 F.3d at 436 (citing United States v. Brigham, supra, 382 F.3d at 510).

8. Id. (quoting United States v. Brigham, supra, 382 F.3d at 510).

9. Id.

10. United States v. Santiago, 310 F.3d 336, 341–342 (5th Cir. 2004) (internal citations omitted).

11. United States v. Cavitt, supra, 550 F.3d at 436 (citing United States v. Santiago, supra, 310 F.3d at 342.

12. United States v. Cavitt, supra, citing United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006).

13. United States v. Cavitt, supra, 550 F.3d at 437–438; see also United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.”’”).

14. Rodriguez v. United States, ___U.S.___, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015), quoting Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

15. Id. at 1612.

16. Id. at 1613.

17. Id. at 1616.

18. “Pulp Fiction” (Miramax 1994).

19. 703 F.3d 828 (5th Cir. 2013).

20. Id. at 831.

21. 275 S.W.3d 533, 535 (Tex. App.—Texarkana 2008, no pet.).

22. Id.

23. 255 S.W.3d 302, 305 (Tex. App.—Eastland 2008, no pet.); see also United States v. Castillo, 76 F.3d 1114, 1117 (10th Cir. 1996) (officer stopped driver for window tint violation; subsequent consent search revealed 105 pounds of marijuana and loaded .45-caliber handgun).

24. Id. at 307.

25. See United States v. Khanalizadeh, 493 F.3d 479, 481 (5th Cir. 2007).

26. Id. at 482.

27. See Guajardo v. State, 109 S.W.3d 456, 458 (Tex. Crim. App. 2003) (license-plate light on car not working justified traffic stop).

28. See United States v. Gallo, 927 F.2d 815, 817 (5th Cir. 1991) (rear license plate obstructed with mud and driver speeding justified traffic stop). An expired inspection sticker can also lead to trouble for drivers. See Myers v. State, 203 S.W.3d 873, 878 (Tex. App.—Eastland 2006, pet. ref’d); Cabrales v. State, 932 S.W.2d 653 (Tex. App.—Houston [14th Dist.] 1996, no pet.).

29. 375 S.W.3d 294 (Tex. Crim. App. 2012).

30. Id. at n. 3, citing Tex. Transp. Code § 547.322(d) (“A taillamp shall emit a red light plainly visible at a distance of 1,000 feet from the rear of the vehicle”).

31. Id. at 297.

32. Id. at 296. See also United States v. Lopez-Valdez, 178 F.3d 282, 284 (5th Cir. 1999), where a trooper stopped a car with a taillight that had an inch-long, rectangular-shaped piece of the taillight lens missing. Because the broken taillight under these facts did not constitute a traffic violation, the officer did not have authority to stop the vehicle. Id. at 284, citing Vicknair v. State, 751 S.W.2d 180 (Tex. Crim. App. 1986.).

33. Id. at 306–07.

34. “Dumb and Dumber” (New Line Cinema 1994).

35. 986 S.W.2d 259, 260 (Tex. App.—Texarkana 1998, pet. ref’d) abrogated on other grounds by State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). While the issue in McCray involved a DWI and not drugs, a traffic stop occured nonetheless.

36. Tex. Transp. Code Ann. § 545.062.

37. 261 F.3d 506, 508 (5th Cir. 2001).

38. Id. at 508.

39. Llewellyn Hedgbeth: “Turn, Turn, Turn: A History of the Turn Signal,” available at http://www.secondchancegarage.com/public/history-of-turn-signal.cfm (last visited Aug. 28, 2015).

40. Id.

41. 232 S.W.3d 55 (Tex. Crim. App. 2007).

42. Id at 57; see also State v. Elias, 339 S.W.3d 667, 669 (Tex. Crim. App. 2011) (officers found 2000 pounds of marijuana after conducting a traffic stop of the van “[b]ecause it failed to signal a right turn from the stop”). Failing to use a turn signal does not always constitute a traffic violation. For instance, in Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012), the evidence was suppressed due to a lack of traffic violation where the driver did not signal “when the lane in which he was driving on a laned roadway merged with the lane to his left.” In United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998), there was no traffic violation where the driver left his turn signal on while proceeding through an intersection, but did not turn left nor change lanes to the left.

43. “How Products Are Made,” available at http://www.madehow.com/Volume-7/Speedometer.html (last visited Aug. 28, 2015).

44. 242 S.W.3d 504, 505 (Tex. Crim. App. 2007).

45. Id. at 506.

46. Id. at 506–07. In United States v. Kye Soo Lee, 898 F.2d 1034, 1035 (5th Cir. 1990), the distributor lost a Ryder truck full of counterfeit Gucci baseball caps and Louis Vuitton handbags after the driver was caught speeding.

47. Seat belt legislation in the United States, available at https://en.wikipedia.org/wiki/Seat_belt_legislation_in_the_United_States (last visited Aug. 28, 2015).

48. “The Evolution of Seat Belt Laws in Texas,” available at http://www.defensivedrivingus.com/blog/texas-seat-belt-law-history.html (last visited Aug. 28, 2015).

49. 47 F.3d 691 (5th Cir. 1995).

50. Id. at 691–92; see also Hutch v. State, 922 S.W.2d 166, 169 (Tex. Crim. App. 1996) (Houston police stopped vehicle because neither driver nor passenger was wearing seat belt).

51. 239 F.3d 678, 679 (5th Cir. 2001).

52. 365 S.W.3d 484, 487 (Tex. App.—Tyler 2012, no pet.).

53. Columbia, Nashville 1990.

54. “Up in Smoke” (Paramount Pictures 1978).

55. A search on Westlaw revealed that since January 1, 2000, there were approximately 320 Fifth Circuit and Texas cases involving a traffic stop where nervousness was mentioned as one factor supporting reasonable suspicion. For all states and all federal courts, the number is over 2,400.

56. Wolf v. State, 137 S.W.3d 797, 800–801 (Tex. App.—Waco 2004, no pet.) (being nervous and overly cooperative is not a basis for reasonable suspicion).

57. 567 F. App’x 272 (5th Cir. 2014) (unpublished).

58. Id. at 278–280; see also Beach v. State, No. 13-03-280-CR, 2004 WL 1834264, at *2 (Tex. App.—Corpus Christi 2004, pet. ref’d.) (although driver appeared calm, driver’s excessive speed (93 mph in a 65 zone) and intoxicated passenger repeatedly opening and closing the pickup door as if he was trying to throw something out supported prolonging traffic stop for K-9 search).

59. Wade v. State, 422 S.W.3d 661, 670–671 (Tex. Crim. App. 2013) (game warden noticed that the defendant was nervous and “his vein in his neck [was] beating”).

60. Meeks v. State, 692 S.W.2d 504, 507 (Tex. Crim. App. 1985) (officer observed that passenger was extremely nervous, “with a rapid heart beat visible through his tight shirt”).

61. 2015 WL 4317820, at *1 (5th Cir. 2015).

62. See United States v. Santiago, 310 F.3d 336, 338–339 (5th Cir. 2002).

63. 993 F.2d 431, 433 (5th Cir. 1993).

64. Id. at 34.

65. Id. See also Hill v. State, 135 S.W.3d 267, 268–69 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d.) (driver’s and passenger’s inconsistent stories about buying trucks in Houston and where they had stayed the night before were factors supporting reasonable suspicion).

66. Parker v. State, supra, 182 S.W.3d at 924.

67. United States v. Sierra, 294 F. App’x 884, 892 (5th Cir. 2008) (driver refused to explain why he had maps of McAllen-Edinburg area when it was not on his expressed itinerary).

68. See United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011).

69. See United States v. Smith, 263 F.3d 571, 594 (6th Cir. 2001).

70. See United States v. Pena-Gonzalez, 2015 WL 4317820, at *1 (5th Cir. 2015).

71. See Acosta v. State, 429 S.W.3d 621, 623 (Tex. Crim. App. 2014).

72. See Moody v. State, 2009 WL 2605904, at *1 (Tex. App.—Corpus Christi 2009, pet. ref’d.).

73. See United States v. Shabazz, supra, 993 F.2d at 434 (Officer discovered that the screws in the front driver’s side air conditioner vent had shiny nicks on them and appeared to be loose. Upon loosening the screws, the vent fell open and a number of plastic baggies, which contained over 300 grams of crack cocaine and over 100 grams of powder cocaine, fell out.).

74. See United States v. Banuelos-Romero, 597 F.3d 763, 765 (5th Cir. 2010) (trooper noticed fresh black adhesive on windshield and saw “scarring on screws holding a plastic piece between the hood and windshield, which would have to be removed to replace the windshield”).

75. Acosta v. State, 429 S.W.3d 621, 623 (Tex. Crim. App. 2014).

As the father of a young family, in the early years of my practice, I did not have a lot of time to devote to pro bono work. A sole practitioner with relatively short roots in the community (five years, when I began my practice, nearly four of which were spent in night law school) has to keep the nose to the grindstone and shoulder to the wheel.

I did make myself available to the local ACLU as a cooperating attorney in criminal cases, which is to say they could call me when a complaint was received that someone’s rights were being denied in the context of a criminal prosecution, and I would give them my opinion as to whether a legitimate complaint was being brought. Occasionally, I would render some assistance to the complaining party, when appropriate.

One Friday afternoon, I received a call from the person who manned the ACLU phone, advising that there was a man in the office who was scheduled to go to trial in a nearby town, Kerrville, on Monday.

He had hired a Houston lawyer, but the lawyer had never yet appeared in court, and the judge had told the man he was going to trial on a charge of attempted murder on the following Monday, whether his lawyer showed up or not.

In view of the apparent urgency of the situation, I had the man sent over to my office for an interview. When he arrived, I had him flesh the story out a bit. I learned that someone had recommended the Houston lawyer when the trouble first arose, and he had paid the lawyer’s retainer in full. (Why he chose a Houston lawyer, or why the Houston lawyer accepted the case, was not immediately apparent, since the defendant was not a wealthy man and Houston is 250 miles from Kerrville.)

Thereafter, he learned that the lawyer had no office other than his apartment and was virtually never home. Worse, when he had reached the lawyer, late at night, the lawyer was inevitably intoxicated.

Despite being advised of the prior settings of the case, the lawyer had never appeared. The judge had made it very clear the last time the case was set that he expected the defendant in court, with a lawyer, the next time the case was set because he intended to try the case.

I did not, at that time, know the judge in the case, Judge Bob Barton, nor did I know anything of his reputation, save two things: He was the former district attorney in the area, and was the author of a peace officer’s manual that was very widely used by Texas lawmen as a quick field reference on the criminal laws of the state.

It was thus clear that Judge Barton was a solid law-and-order man. What I did not then know was that he was (and is) an extremely fair-minded scholar of the law who would never have abused the defendant or his rights; he had simply let the defendant know that it was time to get on with the case, with the lawyer he had hired or someone else.

I promised the man I would be in Judge Barton’s district courtroom the following Monday, in case his lawyer again failed to appear. He thanked me profusely and left. I did not even get into the facts of the case with him.

I drove to Kerrville, a distance of about 60 miles, on Monday morning, arriving several minutes before the docket was called at 9:00 a.m. I located the defendant and learned from him that the Houston lawyer had not appeared.

When the case was called, I stood and announced to the Court that I was not the attorney of record in the case, that I did not know the attorney of record, but knew that he had never appeared in court. I was there, I told the judge, more or less as a friend of the court and to give the defendant the comfort of having someone stand beside him.

Now, what I did not realize was that the lawyer had not only never appeared in the court; he had never filed any documents with the court indicating that he represented the defendant. Thus, though the defendant had a just grievance against the man, and the right to sue for the return of his money, the court really could not require him to handle the case.

Had I known Judge Barton then as I do now, I would have realized that he would have gotten the lawyer in court, even if he had to send the sheriff to Houston for him, if the man had ever appeared as attorney of record in the case.

Judge Barton was glad to see me; at least, he said he was, and I believed him when he said it—I still do. Since I was the only lawyer who had appeared before the court in behalf of the defendant, he was, he said, appointing me to represent the defendant.

He would, unfortunately, be unable to compensate me for doing so, since the defendant had made no affidavit of indigency. Nonetheless, he was sure that as an officer of the court, I would be pleased to be of assistance to the defendant and court alike by performing that service.

I thanked the judge for his faith in my prospective performance, but wondered whether that would be quite appropriate since, as he pointed out, the man had made no affidavit of indigency and I could not charge him a fee, since he had been sent to me by the ACLU.

Before the judge could speak, the defendant volunteered that although he had originally had the money, he did not have it anymore; the Houston lawyer got it all. He could come up with some money, given time, but had no funds with which to hire a lawyer at that time.

The judge had the solution, satisfactory from his perspective, ideal from the defendant’s perspective, and clearly without option from mine (having shown up in court, I was very clearly going to be the lawyer, one way or another).

At the conclusion of the case, he would decide what he would have paid a court-appointed lawyer to handle the case, and the client could pay me that sum.

I was beginning to admire Judge Barton’s style, though I was not really thrilled about his ruling. Moreover, I had gleaned just enough of the facts of the case in my discussions with the defendant to realize the case promised to be unique.

I acquiesced, raising no protest. Judge Barton, learning that I had only learned of the existence of the case late the previous Friday, graciously agreed to reset the case to give me time to prepare.

The citizen accused (they quit being “defendant” when I got hired or appointed to represent them) and I went across the street to a coffee shop to begin to get acquainted and so he could flesh out the facts of the case for me.

He was, it seemed, the father of several children, the youngest of whom was a 16-year-old girl. He and his wife were people in their late 50s, I judged, and found themselves more than a little challenged by the special problems this young girl presented.

She had always been a good girl, helping her mama around the house, doing fine at school, and working part time as a waitress at the little cafe up the street from her father’s garage, which was right next door to the house.

Then she had met that young man, and nothing had been the same since.

They had heard that the man was an ex-convict and an alcoholic (I never did learn for sure whether either of those things were true), and they had forbade the daughter seeing him.

They learned that he was coming around to see her at the cafe, and they made her quit her job. Almost predictably, soon thereafter the girl ran away. She returned after a few days, saying that they had gone to Mexico and gotten married.

The parents, of course, told her that no such purported marriage was legal, she being 16 and all, and that she was not only staying with them, but she was not to leave the house.

A few days later, the girl again disappeared. After several days, they were able to determine that the young man (who was about 10 years older than the girl) had also left town.

They did not know what to do or where to turn. They had no idea where the two had gone. Finally, they reported the daughter to juvenile authorities as a runaway and filed what amounted to statutory rape charges against the young man.

After a time, the police got a lead that the young couple was in Missouri.

With the assistance of Missouri authorities, both the girl and the man had been picked up. She was being held in a juvenile detention facility as a runaway, and he was in jail on a fugitive warrant from Texas, charging him with statutory rape.

Mama and Papa were advised and they drove to Missouri. There, they visited with both the daughter and the young man. They had realized, they told the young people, that their previous approach of forbidding the girl to see the young man was not going to work, and they had a new approach.

If the girl would agree to come home, they said, and if the young man would agree to go through a proper courtship (I never asked to have that defined), and if they still wanted to marry when the girl turned 17, some six months down the road, they could marry, with her parents’ blessing.

The young people readily agreed, since part of the consideration was the withdrawal of the criminal complaint against the young man.

Mama and Papa took daughter home, and criminal charges against the young man were dismissed.

It was nearly two weeks before the daughter took off again.

This time, she and the young man stayed in Kerr County on a ranch.

When Papa learned where they were and went to the ranch, he was greeted by another young man, whom he did not know, who brandished a weapon and advised him he was trespassing. He was not welcome, the young man said, and would be shot if he did not leave or trespassed again.

Papa went home and told Mama what had happened. They were both terribly upset and did not know what to do. After a day or two, though, they remembered that the girl had tearfully told them, during an earlier confrontation, that the young man was not what they thought, that in fact he was very religious and could be found at the Church of Christ any time the doors were open.

They determined to go to the church just before Wednesday-night prayer meeting and attempt to talk to their daughter there.

When Wednesday night came, they got in the old wrecker and drove over to the church.

Not many people had arrived when they did, and the ones they had come to see were not among them.

They pulled into a parking place and waited. Quite a number of cars arrived while they were there, and people were wondering who that pair sitting in the wrecker in the parking lot were, and why they did not get out and come on in.

After some little while, the young people drove up. They parked just up the row, toward the front of the church, and began to exit the car.

When they did, Mama and Papa exited the wrecker. At that point, the daughter saw them, yelled, and began to run toward the front of the church.

Mama kept on going towards the front of the church, but Papa, remembering his experience at the ranch and having noted the looks members of the congregation had been giving them, decided he might need some help. He reached behind the seat of the wrecker and took one of two deer rifles down from the gun rack in the rear window.

As he got the gun and started around to the front, word that there was a man in the parking lot with a gun spread quickly.

Naturally enough, there was a great deal of alarm. As Papa was about to get to the corner of the building, one of the men in the congregation “blind-sided” him, knocking him to the ground and taking away the rifle.

The man scurried to the front, leaving Papa somewhat dazedly looking for his glasses in the grass. About the time Papa found the glasses, he heard a shot go off. He immediately thought of his wife, and was scared to death that somebody had shot Mama.

He went back to the wrecker, opened the door, and grabbed his lever action 30/30 from the gun rack.

Jacking a round into the chamber, he hurried around to the front of the church. When he arrived there, Mama, daughter, and young man had all run inside the church. As he did not see Mama, his fear for her safety continued unabated. He made for the front door. As he moved toward the front door, the preacher and a group of the elders loomed before him, blocking his way. He shouted at them to get out of his way, but they vowed he would not pass.

He was standing there with the deer rifle poked into the preacher’s stomach when the sheriff’s deputy drove up. Mama came out about then, he realized she was okay, and he laid down the rifle.

He was arrested for assault on the preacher and taken to jail. He made bond early the next morning.

Talking with Mama after his release, he learned for the first time that the gunshot he had heard had been the sound of a round which was accidentally discharged into the roof of the church porch when someone was attempting to unload it.

For reasons I have never understood, the indictment returned by the grand jury accused him of the attempted murder of the man who took the first gun away from him. Since he had never even seen that man before the man took the gun away from him, that seemed to be a bit of a reach. In fact, I saw no way in which the district attorney could prove the case.

I learned that the case had become something of a political problem to the DA. Because of the delays occasioned by the Houston lawyer not coming to court, the case had taken a while to come to trial. Some of the church leaders had been by the DA’s office a couple of times to find out what was going on with the case and to assure him of their continued concern. Each visit had concluded with a prayer that justice would be done in the case. The DA was going to have a hard time “dealing” this one out.

That meant I had a problem too. The case was going to have to go to trial, and the event had spread quickly throughout the community, poisoning the pool of potential jurors. Though I felt the DA would have a hard time legally, I had real reservations about whether a fair jury could be selected.

It was at this point I began to really ask around about Judge Barton and learned that his reputation for toughness was matched by his reputation for fairness.

So it was that I recommended to my client (for one of very few times in my practice) that he waive a jury and try the case to the court.

We did, and the legal problems in the case were as apparent to Judge Barton as they had been to me. He acquitted my client of attempted murder and convicted him of reckless conduct, a misdemeanor.

Since we have a statute making it reckless conduct to knowingly point a loaded weapon in the direction of another, that seemed reasonable enough to me, though I had argued that it was not what we lawyers call a “lesser included offense” of attempted murder—lesser yes, included no.

I still think it was a reasonable call on Judge Barton’s part. He assessed a $500 fine and 10 days in jail. He credited Papa with the time already spent in jail and said he could serve the rest on weekends.

Judge Barton said he would have paid me $500 if I had been court-appointed in the case. I thanked him for his courtesies, shook hands with Papa, and headed back to San Antonio. I never talked to Papa again and never saw the $500.

Several years later, I received a call from one of Papa’s sons. Papa had died, and it seems he had left the lever-action 30/30 to me. It had special sentimental value to the family, he said, and he wondered if I might be willing to just let them keep it. I thought about telling him I would be happy to let them have it if they would just pay the $500 fee Judge Barton set, but did not.

“Sure,” I said. “Keep it. It means something to the family.”