ACCEPTED
03-15-00490-CR
8168375
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/9/2015 5:14:50 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00490-CR & 03-15-00491-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
12/9/2015 5:14:50 PM
JEFFREY D. KYLE
Clerk
OF TEXAS
ERNEST PEREZ, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the 274th District Court of
Hays County, Texas,
the Honorable Judge R. Bruce Boyer, presiding
APPELLANT’S BRIEF
Ken Mahaffey
Counsel for Appellant
P. O. Box 684585
Austin, Texas 78768
Phone & Fax (512) 444-6557
St. Bar No. 12830050
Ken Mahaffey@yahoo.com
ORAL ARGUMENT REQUESTED ONLY IF STATE REQUESTS ARGUMENT
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Because the dispatcher failed to tell the stopping officer that there
was no arrest warrant for suspect he was seeking, the officer lacked
reasonable suspicion to stop Appellant’s vehicle.
I. Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. The call to police did not justify a stop. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Collective Knowledge Doctrine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. Failure to communicate complete information not litigated in Texas. . . 4
IV. Collective Knowledge Doctrine should apply both
“Permissively and Prohibitively.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
VI. Stop not supported by reasonable suspicion.. . . . . . . . . . . . . . . . . . . . . . 7
POINT OF ERROR NUMBER TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
When moments after the stop, the officer learned Appellant was not
involved in the investigation he was undertaking any extension of
the detention was improper.
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. Warrantless detentions should not exceed the purpose of the stop. . . . . . 8
i
III. Any reason for detaining Appellant was dispelled when the
officers determined Appellant was not involved in the incident
being investigated.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
IV. Further detention based on observation of bullet box was
unwarranted.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
V. Conclusion - the stop was improperly prolonged beyond its
original purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE . . . . . . . 13
ii
IDENTITY OF JUDGE, PARTIES AND COUNSEL
The following is a list of all parties to the trial court's final judgment and their
counsel in the trial court:
1. Trial Judge: R. Bruce Boyer
274th District Court
712 S. Stagecoach Trail, 3rd Fl.
San Marcos TX 78666
2. Appellant: Ernest Perez
Holliday Unit
02016895
295 I.H. 45 North
Huntsville, TX 77320-8443
3. Defense Counsel: Todd Dudley
Attorney at Law
812 San Antonio St., G5
Austin Texas 78701
4. The State of Texas: John Crouch
Hays Co. D. A.'s Office
712 S. Stagecoach Trail
San Marcos TX 78666
iii
INDEX OF AUTHORITIES
CASES:
State Cases:
Albo v. State, 477 So.2d 1071 (Fla. App. 3 Dist. 1985). . . . . . . . . . . . . . . . 6
Brown v. State, 986 S.W.2d 50 (Tex. App. -
Dallas 1999, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commonwealth v. Hecox, 35 Mass.App.Ct. 277,
619 N.E.2d 339, 344 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997). . . . . . . . . . . . . 9, 12
Jackson v. State, 745 S.W.2d 4 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . 3
Jameson v. Commonwealth, 2012-CA-1478-MR
(Ct. App. Ky. September 27, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Morfin v. State, 34 S.W.3d 664 (Tex. App. -
San Antonio 2000, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
O'Bryan v. State, 464 S.W.3d 875 (Tex. App.-
Fort Worth 2015, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Ott v. State, 600 A.2d 111, 325 Md. 206 (Md. 1992).. . . . . . . . . . . . . . . . . . 6
People v. Fields, 785 P.2d 611 (Colo.1990).. . . . . . . . . . . . . . . . . . . . . . . . . 6
People v. Ramirez, 668 P.2d 761 (Cal. 1986).. . . . . . . . . . . . . . . . . . . . . . . . 6
St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007). . . . . . . . . 9, 12
State v. Moore, 614 A.2d 1360, 260 N.J.Super. 12
(N.J.Super.A.D. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iv
State v. O'Cain, 31 P.3d 733, 108 Wn.App. 542
(Wash.App. Div. 1 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Peterson, 830 P.2d 854, 171 Ariz. 333
(Ariz.App. Div. 1 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Federal Cases:
Florida v. Royer,460 U.S. 491 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ohio v. Robinette, 519 U.S. 33 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Valadez, 267 F.3d 395 (5th Cir. 2001).. . . . . . . . . . . . 10, 12
Whiteley v. Warden, 401 U.S. 560 (1971). . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7
Constitutional Provisions:
Federal Constitution:
U.S. CONST. AMEND. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
v
STATEMENT OF PROCEDURAL HISTORY
Ernest Perez was indicted for Unlawful Possession of a Firearm by a Felon and
Possession of Methamphetamine more than 4 grams but less than 200 grams. The
offenses were alleged to have been committed on October 30, 2013 in Hays County,
Texas. Appellant entered a plea of not guilty. After a trial before a jury, Appellant
was convicted and sentenced to 30 years. On July 6, 2015, Appellant perfected an
appeal to this Court.
vi
STATEMENT OF FACTS
I. Overview.
The principal issues in this case are the propriety of an initial warrantless
detention and extension of that detention after any suspicion concerning the stop was
dispelled. An eventual search of Appellant’s truck revealed a hand gun and
methamphetamine. More methamphetamine was found on Appellant’s person when
he was booked into jail. Because Appellant had a prior felony conviction, he was
charged with both unlawfully possessing the firearm and possession of
methamphetamine. A jury found him guilty. The trial court assessed punishment and,
after finding two prior convictions, sentenced Appellant to 30 years to run
concurrently.
II. The Stop.
Around 8:00 p.m. on October 30, 2013, Officer Samuel Myers of the San
Marcos Police Department was dispatched to a 7-11 convenience store in San
Marcos, Texas. (RR4 11 - 12). A video from his patrol car recording the stop and
search was admitted as State’s Motion Exhibit 1.1 (RR4 22).
The information available to Myers as he arrived at the scene was as follows:
1
The Exhibits Volume of the Reporter’s Record lists this exhibit as “STATE’S
EXHIBIT MTS NO. 1.” (RR8 6).
vii
The dispatcher told him a woman had called 911. (RR4 12, 17). The caller stated a
female suspect had damaged her car a few days earlier. (RR4 13, 17). The suspect’s
name was Kristin Watts. (RR4 13). Watts was currently at the 7-11 and the caller was
observing her get into a gray truck. (RR4 13). The dispatcher also reported that the
caller said that she had reported damage incident and she believed the police had
obtained a warrant for Watts. (RR4 12, 17 - 18). A tape of the 911 call admitted into
evidence revealed Watts did not tell the dispatcher there was a warrant. (SX1 2:42).
When Myers arrived, he saw the truck and activated his lights. (RR4 14; SX
MTS 1 07:58:10). Another officer, Daniel Royston, arrived at the scene as backup.
(RR4 16). Both officers testified Appellant was not free to leave from that point.
(RR4 37, 49). Myers went to the truck and spoke with Appellant through the driver’s
window. (RR4 14; SX1 07:58:20). Royston approached the passenger side. (RR4 71;
SX MTS 1 07:58:20).
Myers saw there were two males in the front seat and a female in the back seat.
(RR4 14). Appellant was the driver. (RR4 14). Myers recognized Appellant from an
unrelated call earlier in the day. (RR4 23). Meyers then asked if Appellant had been
in any accidents and learned he had not. (RR4 15, 43). He did not observe any
collision damage to Appellant’s truck. (RR4 38). Myers also confirmed Watts was in
the vehicle. (RR4 14).
viii
II. The Initial Search by Flashlight.
While Myers spoke with Appellant, Royston walked up and down the
passenger side of the truck, shining his flashlight. (RR4 72 - 73; SX1 07:58:20 -
07:58:40). The truck had tinted windows and he was not able to see inside
completely. (RR4 72). The record is conflicting, but Royston eventually either opened
the passenger door or had the passenger roll down a window. Compare RR4 73 -
(Royston said he opened door) with RR4 90 - 91 (Royston said he instructed
passenger to open window). In any event, Royston testified he saw a box of .45
caliber ammunition on the back seat. (RR4 24, 92, 102 - 103). He added that this
made him suspect there was a firearm in the truck. (RR4 74 ).
After a brief 15 second conversation with Appellant (SX1 07:58:20 -
07:58:45), Myers went to interview the caller who was waiting by the gas pumps.
(RR4 14, 17). As both Myers and Royston walked away from the truck, Myers told
Royston that Appellant was a criminal gang member. (RR4 23, 75; SX1 07:58:49).
Myers had no knowledge that Appellant had any felony criminal history. (RR4 29).
III. Focus and Abeyance of Suspicion.
Myers then spoke with the caller and was told the incident occurred several
days previously. (RR4 17). He decided to check to see if there were any warrants for
ix
Watts’ arrest. (RR4 18). At that point, the video records Myers unequivocally telling
Royston that, “[T]he guys didn’t do anything except that she happens to be in their
car.” (SX MTS 1 08:00:04).
Myers then proceeded to get Watts out of the truck. (RR4 18; SX MTS 1
08:00:04). Approximately 15 seconds later, Royston opened the truck passenger door.
(RR4 74 - 75; SX1 08:00:15). Royston then approached Watts and asked if there was
a gun in the truck. (RR4 79 - 80). She replied, “not that I am aware of.” (RR4 80;
SX1 08:01:53). Royston testified that at this point he had decided to search the truck
for weapons. (RR4 80).
Myers learned there were some unrelated municipal warrants for Watts. (RR4
20 - 21). She was arrested. (RR4 21). Myers had previously determined there were
no warrants for Appellant during his encounter with him two hours before. (RR4 37).
Neither officer witnessed any traffic offense. (RR4 38, 86). Both officers testified that
at the time of the stop they had no reasonable suspicion that Appellant was involved
in any crime. (RR4 43, 86).
III. Physical Search of the Truck.
After Myers arrested Watts on the warrants, Royston removed Appellant and
the passenger from the truck. (RR4 81). He patted both down looking for weapons
x
and found none. (RR4 81). His basis for the search was the box of ammunition. (RR4
81 - 82). He noticed after removing the occupants from the truck that the ammunition
box had been moved from where he saw it previously. (RR4 82, 104).
Royston physically searched the truck finding a .357 caliber pistol in a
backpack between the two front seats along with ammunition clips for other guns and
additional types of ammunition. (RR4 83). The .45 caliber ammunition box was
found under the back seat. (RR4 238). Royston also found a glass pipe he suspected
was used to smoke methamphetamine and a marijuana “grinder.” (RR4 84). Further
search of the truck by a canine unit located suspected drugs in a cigarette package
between the driver’s seat and the front console. (RR4 528).
Although he was seated next to the back pack with the gun and near the
cigarette package, the passenger was released at the scene. (RR4 132, 209, 213).
IV. Additional Evidence Unrelated to Stop and Search.
Appellant was transported to jail and searched upon arrival. (RR4 255). More
suspected drugs were discovered underneath Appellant’s “scrotum.” (RR4 255 - 256).
Both the substance from the cigarette package and that seized at the jail were tested
and found to be methamphetamine. (RR5 149; SX 25). The aggregate amount
consisted of 10.45 grams. (RR5 147; SX 25).
xi
Appellant’s driver’s license and additional ammunition and ammunition clips
were found in a red bag in a closed area of the pickup truck. (RR4 239 - 240). The
clips matched those found in the black bag containing the pistol. (RR5 117). Video
from a police car recorded Appellant asking the passenger to take responsibility.
(RR5 109 - 114; SX 25 09:01:30) Although Appellant denied to police that the bag
was his, (RR4 239), he described it as his bag in a recorded phone call from the jail.
(RR5 188; SX 26).
V. Jury Charge and Verdict.
Appellant requested two charges under Art. 38.23, Tex. Code Crim. Proc.
(2013). (RR6 5 - 10). The trial court denied an instruction concerning Officer Myers’
reasonable suspicion to stop Appellant. (RR6 17). The court did, however, grant an
instruction concerning whether Officer Royston saw the box of bullets. (RR6 17 -
18).
The jury found Appellant guilty of both offenses. (RR6 86). Appellant elected
for the trial judge to decide punishment. (RR6 89). After a punishment hearing where
the trial court found two enhancement allegations to be true, Appellant was sentenced
to 30 years in each case to run concurrently. (RR7 75). Appellant appealed the
judgment of conviction to this Court.
xii
SUMMARY OF ARGUMENT
1. Point One. The stopping officer was led to believe by his dispatcher that
there was a warrant for a female in Appellant’s truck. What the dispatcher was
actually told by the caller was that the female had not been charged with any offense
and that any incident occurred several days prior at another location. Under the
collective knowledge doctrine information known to all officers involved in an
investigation can be used to justify a stop even if the officer making the stop does not
know each specific fact supporting the stop. Conversely, there is a duty on law
enforcement to ensure they have accurate information and to communicate that
information properly. While it has not been addressed in Texas, many other
jurisdictions have applied this collective knowledge doctrine to not just permit
detentions but also to prohibit detentions when law enforcement fails to ensure it has
accurate information and communicate this to the detaining officer.
2. Point Two. When the suspicion that justifies a stop is dispelled it is
improper to extend a detention further. Here, the stopping officer determined within
minutes that Appellant was not involved in any offense concerning the female. He
admits this fact by informing the other officer that Appellant “. . . had nothing to do
with it . . .” The detention should have ceased at that point.
xiii
IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS
ERNEST PEREZ, Appellant
VS.
THE STATE OF TEXAS, Appellee
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW Ernest Perez, Appellant, through counsel, Ken Mahaffey, and
respectfully submits this Brief.
STATEMENT OF THE CASE
This is a case where Appellant challenges the stop of his truck because the
police dispatcher led stopping officer to believe there was an arrest warrant when the
911 caller he relied upon explicitly told him that the person had not been charged.
Appellant also challenges extension of the detention after it was determined that he
was not involved in the incident the officer was investigating. Appellant now
respectfully tenders this brief on appeal.
1
POINTS OF ERROR
POINT OF ERROR NUMBER ONE:
Because the dispatcher failed to tell the stopping officer that there was no
arrest warrant for suspect he was seeking, the officer lacked reasonable
suspicion to stop Appellant’s vehicle.
ARGUMENT AND AUTHORITIES
I. Overview.
Police received a call that they should detain a particular person for allegedly
breaking a car windshield wiper several days prior to the call. That call also related
that the caller had reported the incident and there was no charge against the
individual. This information, while known to the dispatcher, was not conveyed to the
officer who initiated the stop. Because he was not sufficiently informed, he was also
confused as to whether the event had just occurred. Essentially, the officer based his
stop on the belief that there was a warrant for the arrest of the identified person. The
“collective knowledge” doctrine will support a finding of reasonable suspicion for a
stop when other officers have information that would permit a fellow officer to make
a stop even when that officer does not know all the underlying facts. Appellant
submits this collective knowledge also imparts a duty on law enforcement to use all
that information to protect citizens from improper stops. The officer should have been
2
told there was no charge or arrest warrant.
II. The call to police did not justify a stop.
A recording of the 911 call was offered by the State and admitted at trial. (RR4
145; SX 1). In this call, the caller said there was a lady named Kristin Watts who had
damaged her car by removing her windshield wiper. She said the police had
previously told her to call if she saw Watts because she had not been arrested or
charged. Specifically, the caller said “I know she has not been charged with that case
yet.” (SX1 2:42). The fact that Ms. Watts had not been charged with an offense was
not relayed to Samuel Myers, the officer who stopped Appellant’s truck to detain
Watts. Instead, Myers testified he was told the caller thought there was a warrant for
Watts’ arrest. (RR4 12, 18, 165).
III. Collective Knowledge Doctrine implies correct information.
When there has been some cooperation between law enforcement officers,
reasonable suspicion for a stop can be supported by the collective information
available to all officials involved in the investigation. Jackson v. State, 745 S.W.2d
4, 8 (Tex. Crim. App. 1988). However, that information still must be accurate to
support the stop. Whiteley v. Warden, 401 U.S. 560, 569 (1971). Here, the dispatcher
knew there were no charges pending against Watts but did not communicate that fact
3
to the stopping officer. The officer then proceeded on inaccurate information
believing there was a warrant for Watts. The question is to what extent does law
enforcement owe a duty to communicate accurate information.
IV. Failure to communicate complete information not litigated in Texas.
The closest corollary in Texas Jurisprudence is a case from the 2nd District
Court of Appeals. See O'Bryan v. State, 464 S.W.3d 875 (Tex. App.- Fort Worth
2015, pet. ref’d). In O'Bryan, supra, the defendant was stopped based on a report the
car he was driving was stolen. Id. at 875. The report had been withdrawn but police
did not update their records. Id. The Court decided the issue based on cases where
police were entitled to rely on reasonably reliable sources of information like NCIC
reports of stolen vehicles citing Brown v. State, 986 S.W.2d 50, 54 (Tex. App. -
Dallas 1999, no pet.) (“it is not necessary for the NCIC database of stolen vehicles
to be accurate on every occasion for an NCIC hit to establish probable cause”).
The situation here is very different. Here, the dispatcher did not rely on any
reasonably reliable data base. The dispatcher was told by the caller that some
unidentified police officer had allegedly told the caller to contact police she saw
Watts. But, most importantly, the caller told the dispatcher Watts had not been
charged. This key information was not communicated to the stopping officer who was
4
led to believe there was a warrant for Watts’ arrest.
IV. Collective Knowledge Doctrine should apply both “Permissively and
Prohibitively.”
O'Bryan, supra, did not reach the issue of whether the collective knowledge
rule should be applied both “permissively and prohibitively.” Id. at 875. The Court
noted that Texas has applied the doctrine “permissively” to justify stops based on
collective information. Id. This means that collective information that could support
a conclusion of reasonable suspicion would “permit” a proper stop. Appellant argues
that communication of collective wrong information should also “prohibit” a finding
of reasonable suspicion.
While Texas has not decided this issue, other jurisdictions have plainly applied
the doctrine both “permissively” and “prohibitively.” For instance in Kentucky, the
courts held collective knowledge should also apply to erroneous information not
corrected by police so an improper report of a stolen vehicle would not support a stop.
See Jameson v. Commonwealth, 2012-CA-1478-MR (Ct. App. Ky. September 27,
2013). Many other state courts have agreed. See e.g., Washington: State v. O'Cain,
31 P.3d 733, 108 Wn.App. 542, 556 (Wash.App. Div. 1 2001)(incorrect information
concerning whether car stolen required suppression of illegally possessed firearm);
New Jersey: State v. Moore, 614 A.2d 1360, 1362, 260 N.J.Super. 12, 16
5
(N.J.Super.A.D. 1992)(“While the officer who made the arrest no doubt did so
blamelessly and in good faith reliance on the records. . .,” arrest under a recalled
warrant was illegal); Maryland: Ott v. State, 600 A.2d 111, 119 325 Md. 206 (Md.
1992)(collective knowledge doctrine includes duty to communicate withdrawal of a
warrant); Arizona: State v. Peterson, 830 P.2d 854, 171 Ariz. 333, 336 (Ariz.App.
Div. 1 1991)(execution of withdrawn warrant required suppression); California:
People v. Ramirez, 668 P.2d 761, 765 (Cal. 1986)(suppressing evidence obtained by
arrest on withdrawn warrant); Colorado: People v. Fields, 785 P.2d 611 (Colo.1990)
(arrest pursuant to incorrect computer information invalid and required suppression);
Massachusetts: Commonwealth v. Hecox, 35 Mass.App.Ct. 277, 619 N.E.2d 339,
344 (1993)(arrest on warrant for which bail was already posted improper); Florida:
Albo v. State, 477 So.2d 1071 (Fla. App. 3 Dist. 1985)(“just as the police may
permissibly act upon their collective knowledge, so they are restrained by their
collective ignorance.”).
Moreover, the U.S. Supreme Court also spoke definitively on this issue in
Whiteley v. Warden, 401 U.S. 560, 569 (1971). There the Court acknowledged the
arresting officer acted with pure motives when he executed a warrant. Id. However,
because the warrant affidavit stated no facts that would support a probable cause
determination, the arrest was invalid. Id. Whiteley, supra, is still good law despite
6
some later authority addressing “good faith” reliance on improper information.
V. Good faith not applicable.
All of the above cited cases from other jurisdiction rejected the good faith rule
of United States v. Leon, 468 U.S. 897 (1984)(officer may properly rely in good faith
on an otherwise valid search warrant even if issued on less than probable cause).
They rejected application of the rule because there is an expectation that law
enforcement must maintain integrity in the information it compiles itself and acts
upon. The Court in Hecox, supra, considered decisions from other states and
concluded succinctly “. . . Leon did not allow law enforcement authorities to rely on
an error of their own making.” Id. 619 N.E.2d at 342. Texas should be no different.
VI. Stop not supported by reasonable suspicion.
Because law enforcement has responsibility to disseminate complete and
accurate information, the stop was not supported by reasonable suspicion. Whiteley
v. Warden, 401 U.S. 560, 569 (1971). Here, the stopping officer was misled by his
dispatcher to believe there was a warrant for Kristin Watts for criminal mischief.
Appellant was not observed committing any sort of traffic or criminal offense. If not
for this incorrect information, there was no reason to stop him. Therefore, the stop
violated his right to be free of unreasonable searches and seizures. See U.S. CONST.
7
AMEND. IV. The evidence should have been suppressed.
POINT OF ERROR NUMBER TWO:
When moments after the stop, the officer learned Appellant was not
involved in the investigation he was undertaking any extension of the
detention was improper.
ARGUMENT AND AUTHORITIES
I. Introduction.
Appellant’s truck was stopped by officer Samuel Myers solely on the suspicion
that a caller to 911 said Kristin Watts had committed criminal mischief and had a
warrant for her arrest. (RR4 13 - 14). Neither Myers nor the backup officer, Daniel
Royston observed any traffic violation or criminal activity by Appellant. Appellant’s
truck contained Appellant, a male passenger and Watts. Moments after the stop,
Myers spoke with the caller. At that point, he determined that any suspicion focused
only Watts. Indeed, the video records Myers telling Royston, “[T]he guys didn’t do
anything except that she happens to be in their car.” (SX1 08:00:04). Any reason for
Appellant’s continued detention ended at that point.
II. Warrantless detentions should not exceed the purpose of the stop.
“An investigative stop must be temporary and must not last longer than
8
necessary to accomplish the purpose of the investigation.” Davis v. State, 947 S.W.2d
240, 243 (Tex. Crim. App. 1997), quoting Florida v. Royer, 460 U.S. 491, 500
(1983). “This limitation means that once the reason for the stop has been satisfied, the
stop may not be used as a ‘fishing expedition for unrelated criminal activity’” Id.,
quoting Ohio v. Robinette, 519 U.S. 33, 117 (1996). “Consequently, a detention that
is not temporary and reasonably related in scope to the circumstances which justified
the interference, is unreasonable and, thus violative of Appellant’s right to be free of
unreasonable searches and seizures. See U.S. CONST. AMEND. IV; Davis, supra, at
243.
III. Any reason for detaining appellant was dispelled when officers determined
appellant was not involved in the incident being investigated.
This case is similar to Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997).
In Davis, the defendant was initially stopped for suspicion of driving while
intoxicated. Id. at 241. The officers did not detect any odor of alcohol or intoxication.
Id. Nevertheless, the officers continued to detain the defendant for unrelated
questioning. Id. Because the reason for the initial detention was resolved, the Court
of Criminal Appeals held any evidence seized during the continued detention should
have been suppressed. Id. 246; see also St. George v. State, 237 S.W.3d 720, 727
(Tex. Crim. App. 2007) (continued questioning of passenger after citation issued to
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driver improperly prolonged the detention and warranted suppression of evidence).
Federal Courts have reached similar conclusions. In United States v. Valadez,
267 F.3d 395 (5th Cir. 2001), the defendant was stopped to see if his registration
sticker was valid and to determine if his window tinting was legal. Id. at 398. These
were the only reasons for the detention and the suspicion of both violations. Id. The
officer’s investigation dispelled any suspicion of either violation. Id. As a result,
subsequent questioning whether he had a firearm in the car exceeded the scope of that
detention. Id. The firearms had to be suppressed. Id. at 398 - 399. The same result is
necessary here because the detaining officers had already determined that Appellant
was not involved in the incident they were investigating and any evidence discovered
as a result of the continued detention should have been suppressed.
IV. Further Detention Based on Observation of Bullet Box Unwarranted.
At trial, the State argued further detention was necessary because Officer
Royston had observed a box of bullets in the truck. (RR4 111). It is not a violation
of law to possess bullets in one’s car. The officer even agreed this was so. (RR4 60).
While at least one case has held continued detention was justified when an officer
observed a bullet in a stopped vehicle, that case had many other factors not present
in this situation. See Morfin v. State, 34 S.W.3d 664 (Tex. App. - San Antonio 2000,
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no pet.).
In Morfin, supra, an officer observed a car stopped in a dark area of a “. . .
very high crime that was one block away from a bar that was a Mexican Mafia
hangout.” Id. at 666. The officer had responded to calls at that location “. . . for
everything from murder to public intoxication.” Id. When he spotlighted the car he
observed the defendant fumbling around with something on the floor board. Id. When
checking the occupant’s identification he observed a bullet on the center console. Id.
The court held a detention and search was justified at that point. Id. at 668.
The facts here are very different. There was no evidence that Appellant was
in a dark high crime area. Indeed, he was at an ordinary 7-11 convenience store open
for business. (RR4 12, 50). The video also shows it was well lit. (SX MTS 1). Officer
Myers knew there were no warrants for Appellant because he had encountered him
two hours earlier in an unrelated incident. (RR4 37). Neither officer observed any
furtive movements inside the truck. While Myers did allege Appellant may have had
a gang association he did not give any basis for that opinion. (RR4 25). Indeed, later
evidence presented to the trial court indicated this information was untrue. See DX
2 (not suspected of gang membership). Under the totality of the circumstances, the
continuing detention based on observing a box of bullets was improper.
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V. Conclusion - the stop was improperly prolonged beyond its original purpose.
Once the suspicion that justified an initial stop had been dispelled, continued
detention violates the Fourth Amendment. St. George v. State, 237 S.W.3d 720, 727
(Tex. Crim. App. 2007); Davis v. State, 947 S.W.2d 240, 246 (Tex. Crim. App. 1997);
United States v. Valadez, 267 F.3d 395, 398 - 399 (5th Cir. 2001). Here, at the point
the stopping officer concluded Appellant was not involved in the incident the officer
was investigating, there was no justification for further detention. It is not against the
law to possess bullets in a vehicle and no other factor indicated that Appellant was
committing a crime or posed a danger to the officers or any other person. The
detention was improperly extended to fish for evidence of another crime. The
evidence should have been suppressed.
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PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that
the judgment of conviction be reversed and the matter be remanded to the trial court
for a new trial.
Respectfully Submitted,
Ken Mahaffey
Counsel for Appellant
P.O. Box 684585
Austin, Texas 78768
Phone & Fax (512) 444-6557
St. Bar. No. 12830050
Ken Mahaffey@yahoo.com
CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE
The above signature certifies that on December 9, 2015, this document was
sent by electronic service to the Hays County D.A.’s Office, 712 S. Stagecoach Trail,
San Marcos TX 78666 and to Ernest Perez, 02016895, 295 I.H. 45 North, Huntsville,
TX 77320-8443. The above signature also certifies that this document contains 4893
words in compliance with Rule 9.4, Tex. R. App. Proc. (2015)(not to exceed 15,000
words).
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