Suppressing Evidence Obtained From Proactive Drug Interdiction Speeding Stops

On November 4, 2016, the government timely filed a Petition for Discretionary Review in Ramirez-Tamayo v. State, No. 07-15-00419-CR, 2016 WL 5874327 (Tex. App.—Amarillo, October 5, 2016, pet. filed), a 2–1 decision. At issue is whether there was sufficient reasonable suspicion to make an arrest following a speed limit violation.

Testimony indicated the initial speeding detention was likely a pretext to investigate a suspected drug smuggler. This as­pect was not questioned. It should have been, because exceeding the speed limit is not reasonable suspicion as a matter of law. Ramirez-Tamayo was driving only 78 mph in a 75 mph zone on an interstate highway. Exceeding the speed limit in Texas is not prohibited conduct. Tollett v. State, 219 S.W. 3d 593, 599 (Tex. App.—Texarkana 2007, pet. ref’d). Texas does not have a “per se” or absolute speed limit law like most other states. Instead, a speed limit violation is merely presumptive of illegal speeding. See also Sieffert v. State, 290 S.W.3d 478, 487–488 (Tex. App.—Amarillo, 2009, no pet.)(an admitted pretext stop for 5 mph over the speed limit that was not challenged).

The principles discussed in this article apply to all statutory presumptions. Other crimes with presumptions lurking within Texas criminal statutes include aggravated assault of a public servant, forgery, and theft. But the speed limit presumption is pivotal because as presently construed, law enforcement has virtual carte blanche to stop whoever it wants whenever it wants.1 It is simply human nature for motorists to exceed speed limits when higher speeds are reasonable. This is almost a certainty when conditions are normal and the speed is only marginally over the limit.2 The Texas Department of Transportation writes about the burden upon the system when reasonable drivers are ticketed.3 This is why most experienced traffic control officers as a general rule of thumb do not ticket motorists for less than 10 mph over the limit in average traffic conditions. Speed traps where limits are set too low for average conditions exacerbate the problem, justifiably engendering anger towards sometimes corrupt city officials for funding themselves on the backs of reasonable drivers.

Critical to the analysis are the particular jury instructions mandated by the Penal Code for speeding trials and for all other statutory presumptions. Judge Cochran noticed that “[m]ost of the time, jury charges present presumptions incorrectly. . . .” Hollander v. State, 414 S.W.3d 746, 753 (Tex.Crim.App. 2013) (Cochran, J., concurring). There is no crime where more Texans are directly affected by presumption charge error than speeding. Trials occur daily in scores of municipal and justice of the peace courts all across the state. As will be discussed, the typical speeding jury charge is unconstitutional, and by extension, so are those for the more serious crimes containing presumptions. Curative instructions are suggested below.

Nature of Presumptions

Among the constellation of potential circumstances that might combine to prove an element of a crime, sometimes a legislature selects one or two commonly recurring fact patterns to assist the state in proving its case. The legal device is a statutory presumption. A presumption is a rule of evidence supplying “an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.” Insurance Co. v. Weide, 78 U.S. 438, 441–442 (1870).

Like certain other jury instructions, they provide guidance for jurors’ thinking in considering the evidence laid before them. Once in the jury room, jurors necessarily draw inferences from the evidence—both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.

Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 168–169 (1979), Powell, J., Brennan, J., Stewart, J., Marshall, J., dissenting). A presumption is “an evidentiary tool that enables the factfinder to proceed by inferential reasoning from one fact to another.” Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000). Note it is a tool or a rule. It is not evidence itself nor is it a supplier of evidence. Guzman v. State, 188 S.W.3d 185, 193 (Tex.Crim.App. 2006). The basic evidentiary fact or facts that support a presumption are known as predicate facts; the ultimate conclusory element inferred by a presumption is known as the ultimate or elemental fact. See Ulster Cnty at 156.

As mentioned, Texas juries are required to be guided by specific instructions when a crime contains a presumption. Tex. Penal Code Ann. § 2.05 (herein PC 2.05). PC 2.05 was added to the Penal Code in 1974 in response to a line of cases from the Supreme Court of the United States striking down conclusive and mandatory presumptions because they reduce the state’s burden to prove its case beyond a reasonable doubt and infringe on the Fifth Amendment right not to testify. Willis v. State, 790 S.W.2d 307, 310 (Tex.Crim.App. 1990). PC 2.05 guarantees presumptions of all stripe are converted into permissive presumptions. Id. Permissive presumptions authorize but do not require a particular inference. Id.

The Constitutional Problem with Permissive Presumptions

A presumption cannot operate to invade the fact-finding function of the jury or deprive a defendant of his constitutional right to make the state prove every element beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 523 (1979).

A presumption which would permit but not require the jury to assume [an elemental fact] from an isolated fact would prejudge a conclusion which the jury should reach on its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.

Morissette v. United States, 342 U.S. 246, 274–275 (1952).

Permissive presumptions are problematical because they “permit juries to avoid assessing the myriad facts which make specific cases unique.” Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979). Permissive presumptions are therefore constitutional only when “instructions plainly [direct] the jury to consider all the circumstances tending to support or contradict the inference. . . .” Ulster Cnty at 162. As shown below, this also holds true in assessing reasonable suspicion, which of course must always take into consideration the totality of the circumstances.


Concerning speeding, the elemental fact is a speed greater than is reasonable and prudent under the circumstances then existing. Tex. Transp. Code Ann. § 545.351(a). The predicate facts are the speed and the speed limit. A speed “in excess of the limits . . . is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.” Tex. Transp. Code Ann. § 545.352(a). Prima facie evidence in this criminal context has long been understood to describe a rebuttable permissive presumption. Floeck v. State, 30 S.W. 794, 797 (Tex.Crim.App. 1895). The prima facie evidence presumption is

. . . by no means a conclusive presumption. Such is not the meaning of the term “prima facie.” It is merely proof of the case, upon which the jury may find a verdict, unless rebutted by other evidence . . . [emphasis added].

Thomas v. State, 474 S.W.2d 692, 695 (Tex.Crim.App. 1972)(a speeding case quoting Floeck).

Lest we forget, as juries so often do in speeding trials, the ultimate issue is the elemental fact, not the predicate facts. Exculpatory or rebuttal evidence of a reasonable speed usually in­cludes combinations and permutations of the following: a mar­ginal difference between the speed and speed limit,4 lack of vehicular traffic in the area, fair weather, adequate lighting, safe roadway design (such as flat terrain with unobstructed sight lines and low risk of foot, cross, or merging traffic), good vehicle handling characteristics, and driver ability.

Do not forget that undue delay is the other side of the coin. Tex. Transp. Code Ann. § 545.363(a) prohibits an operator of a vehicle from driving “so slowly as to impede the normal and reasonable movement of traffic.” This can occur above or below the speed limit. This is because reasonable speeds are not finite and static like the stark number on a speed limit sign. Instead, they plot a “bell curve” continuum, sliding up and down based on dynamically changing conditions, irrespective of the speed limit.

This is how the Massachusetts Supreme Court expressed it over a hundred years ago in construing its prima facie evidence speed limit statute:

The real question in all these cases is whether the speed is greater than was reasonable and proper . . . The jury are to give due weight . . . in connection with the other circumstances disclosed by the testimony whether coming from witnesses called by the government or by the defendant, and if they are satisfied that the speed is greater than was rea­sonable and proper, having regard to traffic, and the use of the way and safety of the public, they should convict the defendant; otherwise they should acquit him.

Commonwealth v. Cassidy, 95 N.E. 214, 215–216 (Mass. 1911).

Texas Jury Instructions Are Unconstitutional

All jury instructions previously in use for presumptions were modified by PC 2.05 commencing with its January 1,1974, effective date:

When this code or another penal law establishes a presumption with respect to any fact, [the jury is to be instructed as follows: if] the facts giving rise to the presumption [are] proven beyond a reasonable doubt, the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find.

PC 2.05(a)(A)(B). This permits the jury to ignore or apply a presumption in all circumstances, including when other evidence demonstrates the presumption to be irrational under the facts of the case. Prosecutors routinely take advantage of this. Trial judges do have a the safety valve power to direct a verdict of Not Guilty

if the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.

PC 2.05(a)(1). Few judges, however, are willing to take a case out of the hands of a jury for fear of reversal.

To the jury itself, the Court of Criminal Appeals provided similar guidance when it remanded a case that failed to instruct the jury that

it is free to reject the presumption should it find that the circumstances presented by the State’s case as a whole impugn the inference the presumption authorizes it to convict upon. . . .

Bellamy v. State, 742 S.W.2d 677, 684 (Tex.Crim.App. 1987) (en banc)(Miller, J., concurring). But being free to reject the presumption is not the same as “must reject” the presumption. In sum, since absolutely nothing in PC 2.05 forbids the judge from submitting a case to a jury or forbids the jury from applying the presumption when the circumstances as a whole contradict the inference, there is fertile ground for false convictions when other evidence casts doubt on whether the speed was greater than was reasonable and prudent at the same time the speed and the speed limit are proven beyond a reasonable doubt. PC 2.05 instructions are therefore unconstitutional under Morissette because they allow irrational outcomes.5

Curative Instructions

These constitutional concerns are consistent with the pithy metaphors articulated over the years. For instance, presumptions “may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.” Mockowik v. Kansas City, St. J. & C. B. R.R., 94 S. W. 256 (Mo. 1906). Also,
“[p]resumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.” Lincoln v. French, 105 U.S. 614, 617 (1882). Finally,

a presumption is an artificial thing, a mere house of cards, which one moment stands with sufficient force to determine an issue, but at the next, by reason of the slightest rebutting evidence, topples utterly out of consideration of the trier of facts.

Combined Am. Ins. Co. v. Blanton, 353 S.W.2d 847, 849 (Tex. 1962), citing Jones on Evidence § 32 (2d ed.).

A correct instruction will fully implement PC 2.05 and at the same time prevent the presumption from operating when reasonable inferences from actual evidentiary facts conflict with what the legislature predicted would prove the elemental fact. The instructions should plainly explain the mechanism for independently reaching conclusions from all of the direct and circumstantial evidence, including whatever weight the jury wants to put on the predicate facts.

Whether [the elemental fact] existed, the jury must determine, not only from the [predicate facts], but from that together with defendant’s testimony and all of the surrounding circumstances.

Morissette at 276.

This begs the question: How do we get this esoteric idea across to the average juror? One approach comes from PC 2.05(a)(1) verbiage bearing on the judge’s duty to submit the case to the jury “unless . . . satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.” Pennsylvania uses a presumption for intoxication, and the Supreme Court of Pennsylvania said this:

The jury should be instructed that the [blood] test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the in­flu­ence of intoxicating liquor, they should return a verdict of “not guilty.”

Commonwealth v. DiFrancesco, 329 A.2d 204, 211 (Pa. 1974). An excellent alternative comes from two different Tenth Circuit three-judge panels handed down unanimously nine years apart: “[A] better instruction would have told the jury to draw the inference ‘only if in light of all of the other evidence, . . . [the predicate facts] convinced the jury beyond a reasonable doubt of the elemental fact.’” United States v. Berry, 717 F.3d 823, 832 (10th Cir. 2013), citing and reiterating United States v. Cota-Meza, 367 F.3d 1218, 1222–1223 (10th Cir. 2004).

The supplemental jury instruction suggested below is taken from the Tenth Circuit’s approach. It clearly, succinctly, and constitutionally reconciles the reasonable inferences reached from direct and circumstantial exculpatory evidence at the same time predicate facts are proven to the requisite level of certainty.

You may find the defendant guilty only if in light of all of the other evidence you are convinced beyond a reasonable doubt that the defendant’s speed was greater than was reasonable and prudent under the circumstances then existing.

Proof of Predicate Facts Does Not Confer Reasonable Suspicion as a Matter of Law

Just as facts that do not amount to probable cause in isolation can do so when combined with other facts, Loesch v. State, 958 S.W.2d 830, 832 (Tex.Crim.App. 1997), the corollary is also true. Isolating the predicate facts to the exclusion of the rest of the evi­dence is improper reasonable suspicion analysis. See Thomas v. City of Galveston, 800 F. Supp. 2d 826 (S.D. Tex. 2011), with its exhaustive review of cases holding that additional facts objectively supporting an affirmative defense negate reasonable sus­picion that would otherwise exist. See also United States v. Pena-Montes, 589 F. 3d 1048 (10th Cir. 2009), where an officer at first possesses reasonable suspicion of an illegal temporary license plate mounted on a passing car, then loses it upon closer inspection as he approached the vehicle but before he gets close enough to the driver to make personal contact. The discussion of the various clues of drug possession in the majority’s Ramirez-Tamayo Amarillo Court of Appeals opinion is also instructive: “[T]hat they may be useful in initially capturing the officer’s attention is beyond doubt. But, the appearance of those characteristics in a particular situation do not ipso facto authorize a temporary detention.” RamirezTamayo at 2.

When monitoring traffic for speeding, the officer might have momentary reasonable suspicion when observing the radar or laser returning a number above the speed limit. But that suspicion can just as quickly vanish dependent upon other objective circumstances known to the officer. This analysis may seem novel, but it is simply another manifestation of the axiomatic Fourth Amendment totality of the circumstances. The overriding consideration is the specific facts as they objectively relate to the elemental fact. See Castro v. State, 227 S.W. 3d 737, 742 (Tex.Crim.App. 2007), listing speeding as an example of a subjective crime requiring underpinning specifics. It jibes with the jury instructions analysis above. When the circumstances as a whole rebut the inference, the presumption does not come into play for purposes of reasonable suspicion the same as it disappears from jury deliberations.

Existing Texas Fourth Amendment Jurisprudence Concerning Speeding

Many opinions are like Ramirez-Tamayo in the sense that a speed over the speed limit is simply assumed reasonable suspicion. The reason for the initial detention is mentioned only in passing as part of the procedural history preceding the discussion of the substantive issue on appeal. Typically, when there is a contested reasonable suspicion issue concerning speeding, it is based on a credibility contest between the stopping officer and the defendant over whether the defendant exceeded the speed limit. Sometimes there is a dispute as to the reliability of the instrument measuring the speed. These opinions rarely if ever distinguish the elemental fact of a reasonable and prudent speed. As a result, they often contain less than precise language. It is easy to read them to support a per se reasonable suspicion rule when they don’t. E.g., Madden v. State, 242 S.W.3d 504, 511 (Tex.Crim.App. 2007).

There are only four unpublished opinions to date where the defense argued for suppressing evidence due to a reasonable speed: United States v. Castanon, No. 06-40642, 2007 WL 1560127, 229 Fed. Appx. 312 (5th Cir. 2007)(not designated for publication); Warren v. State, 05-08-01431-CR (Tex.App.—Dallas 2009, no pet.)(not designated for publication); Fluharty v Texas, 05-08-01470-CR (Tex. App.—Dallas 2009, no pet.)(not designated for publication); and Bland v. Texas Dept. of Public Safety, (Tex. App. 14-12-01057-CV—Houston [14th Dist.], delivered July 23, 2013, pet. denied). In the main, the rationales miss the mark. The opinions often rely on inapposite cases or cir­cular reasoning, as illustrated by the per curiam Fifth Circuit Castanon opinion, the first of the four cases.

Police stopped Castanon for speeding. Castanon argues that his conduct was not a traffic violation, however, because the investigating officer agreed with defense counsel on cross-examination that his speed was not unreasonable. It is undisputed that Castanon was driving 71 miles per hour and that the speed limit was either 65 or 70 miles per hour. By driving above the posted speed limit, Castanon’s conduct constituted prima facie evidence of a traffic violation.

Castanon at 313. This superficially implies prima facie evidence is actual evidence sufficient to make a prima facie case. There is no mention of a presumption or Section 2.05.6


Presumptions have been called “the slipperiest member of the family of legal terms. . . .” McCormick on Evidence (3d ed., Cleary, ed.), p. 965 (1984). To the extent we fail to force their constitutional implementation, we fail the system in our role as advocates. Today, the Texas Municipal Court Education Center publishes an exemplar speeding jury charge for use by all traffic judges.7 It does not incorporate PC 2.05 at all. Plus, it is replete with confusing legalese that implies prima facie evidence is the same as a prima facie case. It virtually guarantees a conviction. Likewise, the definition of prima facie evidence used by many municipalities does not integrate PC 2.05. Instead, such instructions say it is “evidence that stands proved unless rebutted by other evidence.” This is an unconstitutional mandatory presumption. See Guzman at 193, n. 17. Even the recently published 2015 Texas Criminal Pattern Jury Charges–General, Evidentiary and Ancillary Instructions does not provide the necessary guidance for handling rebuttal evidence. The jury charge should explain the presumption in the specific terms of the crime, “the clear mandate” of PC 2.05(a)(1). Bellamy at 686.

Jury instructions must not only comply with PC 2.05 in terms of the particular crime, but they must also guarantee that the jury assess the credibility and weight of the evidence as a whole, unencumbered by undue influence of a presumption. The in­struction suggested above causes the presumption to vanish when credible rebuttal evidence is introduced. This satisfies due process by preventing false convictions when actual facts ex­pose a presumption to be a fiction.

As for reasonable suspicion based on nothing more than predicate facts and a presumption, the analysis ends there only if the defense fails to appreciate its significance or if there is no exculpatory evidence. The totality of the circumstances known to the officer must be elicited, not ignored. When other evidence objectively rebuts the presumption, the presumption disappears, as does reasonable suspicion.


1. Anecdotally, interdiction efforts in the Panhandle use speeding as a pretext strategy. Using a clearly marked patrol unit, they drive below the speed limit on known drug smuggling routes. Any vehicle that comes up from behind but does not pass is profiled. The marked car exits the freeway and radios ahead the identifiers for the profiled vehicle. Enter an unmarked car, which promptly pulls the profiled car over once there is any nominal speed over limit.

2. (last visited Nov. 8, 2016).

3. “If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop a disrespect for speed limits in general. When a speed limit is set below the 85th percentile, law enforcement officials must deal with reasonable people being ticketed for exceeding the posted speed limit. . . .” (last visited September 14, 2016).

4. There is also the argument that when the speed only slightly exceeds the speed limit, the speed limit presumption itself is unconstitutional. There must be “a reasonably tight logical fit between the basic facts proved and the ultimate fact inferred.” Brown v. State, 122 S.W.3d 794, 79 (Tex.Crim.App. 2003), citing Leary v. United States, 395 U.S. 6, 36 (1969). Presumptions are evaluated for constitutionality “as applied in the record before the court,” not on their face. Gersh v. State, 714 S.W.2d 80, 81 (Tex.App.—Dallas 1986, pet. ref’d), 738 S.W.2d 287 (Tex.Crim.App. 1987), citing Ulster Cnty. For example, the speed limit was recently raised from 70 mph to 75 mph on many Texas highways. It is not likely that 75 mph or less in a 70 mph zone is greater than would be reasonable in normal circumstances.

5. The general rule is that only elements of a crime need be proven beyond a reasonable doubt. Berry at 831–832. Individual evidentiary facts usually do not require this level of confidence. Id. See Ulster at 167. Speeding is an exception, however, even without PC 2.05. In order to prosecute a speeding case, both the ticket and the charging instrument in a speeding trial must allege the speed and the speed limit. Tex. Transp. Code Ann. § 543.010. Thus the speed and speed limit are two of the elements for the crime of speeding. If there is a reasonable doubt as to either the speed or the speed limit, the prosecution has failed to meet its burden of proof and the defendant is not guilty.

6. This is not all that surprising. Intermediate appellate courts have both civil and criminal jurisdiction. The term of art prima facie evidence is inherently ambiguous, with a different meaning in a civil context. Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 859 (Tex. 1975). It is also easily confused with prima facie case, an entirely different civil concept. See Evans v. State, 623 S.W.2d 924 (Tex.Crim.App. 1981), where the trial judge conflated PC 2.05, prima facie evidence, and prima facie case. Finally, because it contains the word “evidence,” it is counter-intuitive.

7. (last visited October 5, 2016).

Robert Eutsler
Robert Eutsler
Robert Eutsler is married with four children, a Houston native, a graduate of The University of Texas School of Law, and a former municipal judge. He was president of the Harris County Municipal Justice Bar Association and currently sits on its board. He is a frequent speaker and a member of the Traffic Lawyers of Texas. He primarily defends driving-related crimes and DPS suspension actions, including DWI, DWLI, racing, reckless driving, speeding and other traffic offenses. He and his staff, led by wife Michelle, also research and restore lost driving privileges. Robert enjoys saltwater bay fishing and lives along Spring Branch Creek in Houston, where he is currently rehabilitating wild wood ducks on behalf of the US Fish and Wildlife. He can be reached at .

Robert Eutsler is married with four children, a Houston native, a graduate of The University of Texas School of Law, and a former municipal judge. He was president of the Harris County Municipal Justice Bar Association and currently sits on its board. He is a frequent speaker and a member of the Traffic Lawyers of Texas. He primarily defends driving-related crimes and DPS suspension actions, including DWI, DWLI, racing, reckless driving, speeding and other traffic offenses. He and his staff, led by wife Michelle, also research and restore lost driving privileges. Robert enjoys saltwater bay fishing and lives along Spring Branch Creek in Houston, where he is currently rehabilitating wild wood ducks on behalf of the US Fish and Wildlife. He can be reached at .

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