PD-1204-17
November 7, 2017
No. ________________
IN THE TEXAS COURT OF CRIMINAL APPEALS
TRACY LYNN MCGREW, JR.
Appellant
v.
THE STATE OF TEXAS
Appellee
Appealed from Docket No. 09-16-00424-CR
In the Court of Appeals for the Ninth Judicial District of Texas
PETITION FOR DISCRETIONARY REVIEW
OF APPELLANT TRACY LYNN MCGREW, JR.
ASHTON CHRISTOPHER ADAIR
STATE BAR NUMBER: 00795907
MAILING ADDRESS: 7400 GULF FREEWAY, HOUSTON, TEXAS 77017
PHYSICAL ADDRESS: 7400 GULF FREEWAY, HOUSTON, TEXAS 77017
TELEPHONE: 713-777-5297
TOLL FREE FACSIMILE: 844-273-9752
CELL PHONE: 832-221-8759
EMAIL: ASH@HOUSTONTXLAWYER.COM
COUNSEL FOR APPELLANT
IDENTITY OF JUDGE, PARTIES AND COUNSEL
The trial court judge in this case was Judge Dennis Watson.
The parties to the judgment in this case are Tracy Lynn McGrew, Jr. and the State
of Texas.
The names and addresses of all trial and appellate counsel are:
Trial Counsel for the State of Texas:
Anthony Franklyn
Sara Corradi
Assistant District Attorneys
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
Trial Counsel for Appellant Tracy McGrew, Jr.:
Ashton C. Adair
State Bar No. 00795907
7400 Gulf Freeway
Houston, Texas 77017
Appellate Counsel for the State of Texas:
MONTGOMERY COUNTY DISTRICT ATTORNEY, BRETT LIGON
William J. Delmore III
Asst. District Attorney
207 W. Phillips, 2nd Floor
Conroe, TX 77301
Brett W. Ligon
District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
i
Philip S. Harris
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
Appellate Counsel for Appellant Tracy McGrew, Jr.:
Ashton C. Adair
State Bar No. 00795907
7400 Gulf Freeway
Houston, Texas 77017
ii
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL.............................................. i
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
STATEMENT OF THE CASE ..................................................................................1
STATEMENT OF PROCEDURAL HISTORY........................................................2
QUESTIONS PRESENTED FOR REVIEW ............................................................2
REASONS FOR REVIEW ........................................................................................3
ARGUMENT IN SUPPORT OF REASONS FOR REVIEW ..................................4
I. The Court of Appeals has Decided an Important Question of State and
Federal Law in a Way that Conflicts with the Applicable Decisions of the
Supreme Court of the United States ................................................................4
A.The Court of Appeals Erred in Holding that Mr. McGrew’s Conduct was
Sufficiently Distinguishable from that of Innocent People under the Same
Circumstance ..............................................................................................4
II. The Court of Appeals has Erred in its Interpretation of the United States
Constitution’s Fourth Amendment as it Relates to the Concept of
Reasonable Suspicion to Detain a Citizen .......................................................6
A. The Court of Appeals Erred in Holding that the Reasonable Suspicion
Standard can be Met without Identifying a Connection Between a
Suspect’s Behavior and a Particular Crime................................................6
i. Deputy Vasquez’s Suspicion was Based on Subjective Views..............6
ii. Deputy Vasquez did not Articulate a Connection Between Mr.
McGrew’s Actions and a Crime .............................................................7
iii
iii. Deputy Vasquez Did Not Articulate a Connection Between Mr.
McGrew’s Actions and the Violation of a Codified Law .......................8
iv. The Court’s Holding in Derichsweiler Identified Reasonable Suspicion
of a Specific Crime and Distinctions Between Suspects in Prior and
Impending Crimes ...................................................................................9
v. Reasonable Suspicion of Criminal Activity Must Be Defined as
Reasonable Suspicion of a Violation of a Codified Criminal Law ......10
vi. Geographic Area and Time of Day are Not Sufficient Alone to
Establish Justification of Detention ....................................................111
III. The Court of Appeals’ Decision is in Conflict with Other Court of
Appeals’ Decisions on the Same Issue........................................................12
A. Other Appellant Courts have Held that Sufficient Articulable Facts Must
Link a Suspect with a Particular Crime in Order to Justify a Detention .12
CONCLUSION ........................................................................................................13
REQUEST FOR RELIEF ......................................................................................133
CERTIFICATE OF SERVICE ..............................................................................144
APPENDIX ............................................................................................................155
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INDEX OF AUTHORITIES
Cases
Brodnex v. State, 485 S.W.3d 432 at 438 (2016).....................................................12
Brown v. Texas, 443 U.S. 47, 52 (1979) ....................................................................4
Comer vs. State, 754 S.W. 2d 656 .............................................................................1
Derichsweiler v. State, 348 S.W.3d 906 at 917 (2011) .............................................9
Florida v. Royer, 460 U.S. 491, 500 (1983) ..............................................................4
Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001) ....................................7
Garza vs. State, 771 S.W.2d 549, 558-559 ..............................................................12
St. George v. State, 197 S.W.3d 806 at 815 (Worth 2006) ........................................7
Terry v. Ohio, 392 U.S. 1(1968) ................................................................................4
Wade v. State, 422 S.W.3d 661, at 672 (2013) ..........................................................6
Rules
Tex. R. App. P. 66.3(a) ..............................................................................................3
Tex. R. App. P. 66.3(c) ..............................................................................................3
Tex. R. App. P. 66.3(d) ..............................................................................................3
Constitutional Provisions
Fourth Amendment of the United States Constitution ..................................... 2, 3, 4
......................................................................................................................................
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To The Honorable Court of Criminal Appeals of Texas:
STATEMENT REGARDING ORAL ARGUMENT
The undersigned attorney waives oral argument.
STATEMENT OF THE CASE
This is a petition for discretionary review of the denial of Tracy Lynn
McGrew, Jr.’s Motion to Suppress Evidence obtained during the stop of his vehicle
on or about March 20, 2016. Appellant Tracy Lynn McGrew, Jr. was arrested and
charged with Possession of Marijuana on or about March 20, 2016. See Court
Clerk’s Record, pages 4-5. On July 11, 2016, Appellant filed a Motion to Suppress.
See Court Clerk’s Record, pages 6-10. On October 4, 2016, Appellant filed his First
Amended Motion to Suppress which is not included in the Court Clerk’s Record.
The only difference between Appellant’s Original Motion to Suppress and
Appellant’s First Amended Motion to Suppress is the omission of references to
Comer vs. State, 754 S.W. 2d 656. Appellant’s First Amended Motion to Suppress
is included in the Appendix to this Petition, and is referenced by the County Court
Judge on page 5, lines 4-5 of the Court Reporter’s Record.
The Montgomery County Court at Law Number One denied Appellant’s
Motion to Suppress on October 4, 2016 and signed the Order thereon on November
1, 2016. See Court Clerk’s Record, page 11. After the denial of the Motion to
Suppress, Appellant pled guilty to the charge of Possession of Marijuana on October
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4, 2016, and was sentenced to 3 days in the Montgomery County Jail (with credit for
3 days) and a $500.00 fine plus court costs of $302.00. See Court Clerk’s Record,
pages 12-14. The Court certified Appellant’s right to Appeal the Denial of his
Motion to Suppress on October 4, 2016. See Court Clerk’s Record, page 16.
Appellant filed his Notice of Appeal on November 1, 2016. See Court Clerk’s
Record, page 18.
STATEMENT OF PROCEDURAL HISTORY
The Ninth Court of Appeals affirmed the judgment of the trial court in a
decision rendered October 4, 2017. Appellant now files his petition for discretionary
review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.
QUESTIONS PRESENTED FOR REVIEW
1.
Whether a police officer violates a citizen’s United States Constitution’s Fourth
Amendment rights by detaining an individual without being required to articulate a
connection between the individual’s behavior and a specific crime.
2
REASONS FOR REVIEW
I.
The Court of Appeals has decided an important question of state and federal law in
a way that conflicts with the applicable decisions of the Supreme Court of the United
States. Tex. R. App. P. 66.3(c).
II.
The Court of Appeals has erred in its interpretation of the United States
Constitution’s Fourth Amendment as it relates to the concept of reasonable suspicion
to detain a citizen. Tex. R. App. P. 66.3(d).
III.
The Court of Appeals’ decision is in conflict with other Court of Appeals’ decisions
on the same issue. Tex. R. App. P. 66.3(a).
3
ARGUMENT IN SUPPORT OF REASONS FOR REVIEW
I. The Court of Appeals has Decided an Important Question of State and
Federal Law in a Way that Conflicts with the Applicable Decisions of the
Supreme Court of the United States
A. The Court of Appeals Erred in Holding that Mr. McGrew’s
Conduct was Sufficiently Distinguishable from that of Innocent
People under the Same Circumstance
The Fourth Amendment applies to seizures of the person, including brief
investigatory stops of motor vehicles. Terry v. Ohio, 392 U.S. 1(1968). Some
objective manifestation that the person stopped is, or is about to be, engaged in
criminal activity must justify an investigatory stop. Brown v. Texas, 443 U.S. 47
(1979). There was no testimony that Appellant was or was about to be engaged in
criminal activity. It is the State's burden to articulate facts sufficient to support
reasonable suspicion. Brown v. Texas, 443 U.S., at 52; see also Florida v. Royer,
460 U.S. 491, 500 (1983).
On or about March 20, 2016, Montgomery County Deputy Vasquez
observed the Appellant’s vehicle backed into a parking stall with its parking lights
on with several people in the vehicle. See Court Reporter’s Record page 9, lines 4-
9. The Deputy stated that she observed occupants of the car start to move “around
kind of frantically.” See Court Reporter’s Record page 9, lines 18-20. Deputy
Vasquez continued down the path of the parking stall driveway and turned left to go
back toward Appellant’s vehicle. As she turned left, Deputy Vasquez observed the
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vehicle turn on its lights and leave. See Court Reporter’s Record page 9, lines 20-
25.
Deputy Vasquez followed Appellant’s vehicle, and observed several people
in the vehicle “shifting around” and observed one person looking back at the
Deputy’s patrol vehicle and acting as if he was “shifting around and moving stuff
around in the backseat.” Deputy Vasquez then stopped and detained Appellant. See
Court Reporter’s Record page 10, lines 19-21. The Deputy testified that she would
not have stopped Appellant if the occupants in his car had gotten out of the car while
in the parking lot. See Court Reporter’s Record page 10, line 25 - page 11, line 2.
Upon cross-examination the Deputy testified that the occupant’s movements
and the departure of Appellant and his occupants from the hotel parking lot made
her suspicious of Appellant; but she testified that she had “no idea of what crime.”
See Court Reporter’s Record page 13, lines 5-22.
Deputy Vasquez testified that the behavior of Appellant and his
occupants appeared the same as the behavior of law abiding people. See Court
Reporter’s Record page 16, line 22 – page 17, line 1.
5
II. The Court of Appeals has Erred in its Interpretation of the United States
Constitution’s Fourth Amendment as it Relates to the Concept of
Reasonable Suspicion to Detain a Citizen
A. The Court of Appeals Erred in Holding that the Reasonable
Suspicion Standard can be Met without Identifying a Connection
Between a Suspect’s Behavior and a Particular Crime
As Deputy Vasquez had stopped Appellant’s vehicle and she was still behind
Appellant, Deputy Vasquez arbitrarily labels Appellant a “suspicious person,” but is
unaware of any connection between Appellant and any specific crimes. See Court
Reporter’s Record page 19, line 3 – page 20, line 3. “…[A]n officer and the
Government must do more than simply label a behavior as ‘suspicious’ to make it
so. The Government must also be able to either articulate why a particular behavior
is suspicious or logically demonstrate, given the surrounding circumstances, that the
behavior is likely to be indicative of some more sinister activity than may appear at
first glance.” Wade v. State, 422 S.W.3d 661, at 672 (2013).
i. Deputy Vasquez’s Suspicion was Based on Subjective Views
Reasonable suspicion exists where the officer has:
1) specific articulable facts that,
2) when combined with rational inferences from those facts,
3) would lead the officer to reasonably suspect that a particular person has
engaged or is engaging in criminal activity [Itemization numbers added by
Appellant].
6
See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001).
Deputy Vasquez is required to articulate a connection between Appellant’s behavior
and a crime in order to detain said person.
ii. Deputy Vasquez did not Articulate a Connection Between
Mr. McGrew’s Actions and a Crime
A Deputy must satisfy element (3) of the Reasonable Suspicion standard: the
officer must reasonably suspect that a particular person has engaged or is engaging
in criminal activity. It is unfathomable to make a connection to any criminal activity,
without stating which criminal activity may be afoot. It is inherently unfair and
subject to individual bias if the standard for detention is an individual officer’s
subjective belief of what is unusual behavior, without articulating the behavior’s
connection to a particular crime. The officer "must be able to articulate something
more than an inchoate and unparticularized suspicion or hunch.” St. George v. State,
197 S.W.3d 806 at 815 (Worth 2006).
In the interests of uniformity and fairness, it is important for the officer to
identify a particular crime instead of using the generic label “criminal activity.” The
term “criminal activity” must refer to a violation of the voluminous archives of laws
that we are all bound to follow. To be included in the definition, the detaining officer
must point to at least one of these laws to possess the authority to detain a citizen.
While criminal statutes have titles and labels, they are also comprised of elements
which are required to be proven before a person can be convicted. Our system runs
7
this way because it would be unfair, for example, to make it against the law to
commit “criminal mischief” without a definition which includes specific elements
making certain specific behavior illegal. Otherwise, there would be no standard for
acting in our society and each jurisdiction or officer could subjectively define what
they believe “criminal mischief” to be. This applies equally to crimes to which we
would all have an intuitive definition, such as theft. Indeed, the crime of “theft” is
specifically defined with elements so that we can have a uniform and fair guide, with
little room for reasonable debate. The same should be true for labeling a person as
engaged or is engaging in criminal activity. The term “criminal activity” should be
defined.
iii. Deputy Vasquez Did Not Articulate a Connection Between
Mr. McGrew’s Actions and the Violation of a Codified Law
The term “criminal activity” must be defined as a violation of one of our
codified laws. If an officer cannot identify which of the laws she suspects a person
has violated, she is using the term arbitrarily, applying a subjective standard which
will result in unfairness due to her unparticularized suspicion or hunch. In this
instance, all of us would be subject to detention for a variety of undefined reasons.
It is not difficult to articulate a suspicion of a violation of one of our many
laws. Deputy Vasquez’s suspicion was inchoate and an unparticularized hunch or
fishing expedition.
8
iv. The Court’s Holding in Derichsweiler Identified Reasonable
Suspicion of a Specific Crime and Distinctions Between
Suspects in Prior and Impending Crimes
There are a few opinions that have stated that an officer need not identify a
particular crime in order to establish reasonable suspicion. The Holdings on this
issue should be overturned. Each of those opinions resulted in the Court opining a
reasonable suspicion of a specific crime to justify the detention. For example, in
Derichsweiler v. State, the Court states of the defendant’s actions: “It reasonably
suggests someone who was looking to criminally exploit some vulnerability— a
weak or isolated individual to rob or an unattended auto to burgle.” Derichsweiler
v. State, 348 S.W.3d 906 at 917 (2011). Clearly the Court in Derichsweiler does
justify the stop there based upon a reasonable suspicion of the specific crimes of
robbery or burglary of an automobile. Regardless of the method or reasoning, it is
impossible to define “criminal activity” without at least one reference to a codified
law. Derichsweiler also makes a distinction between a suspect for a previous crime,
and a suspect in an impending crime, indicating that a lower standard to stop a person
is warranted to stop an impending crime. Derichsweiler v. State, 348 S.W.3d 906 at
917 (2011). Deputy Vasquez never alluded to whether Appellant was a suspect in a
previous or impending crime. This type of loose suspicion should not be
encouraged.
9
v. Reasonable Suspicion of Criminal Activity Must Be Defined
as Reasonable Suspicion of a Violation of a Codified
Criminal Law
It is well established that an officer must use the totality of the circumstances,
including everything that law enforcement knew, to justify reasonable suspicion for
a stop. It is also well known that the level of culpability to be proven is far less for
reasonable suspicion to stop as opposed to probable cause. However, when the
totality of the circumstances renders an officer unable to articulate how said
circumstances are related to a particular crime, we are left with a detention that
produces the question: which crime, emergency, or matter, is the officer
investigating? If the stop is not somehow reasonably articulated to relate to a
particular crime or crimes, the result becomes absurd in that the officer can then
detain a person for a long time, for the purpose of investigating many possible crimes
that could theoretically be committed. For there to be a limit to the scope and
duration of a detention, the officer must be investigating particular crimes in which
the officer reasonably suspects of the detainee. In order to do so, the officer must be
able to identify those particular crimes and the connection to the detainee. If we do
not define “criminal activity” as a violation of a codified law, or define “criminal
activity” in any way, then any behavior can be viewed as being suspect to “criminal
activity,” depending on the officer’s subjective bias. This leaves the door wide open
for unreasonable detentions of innocent people. It is unreasonable to conclude that
10
we can define “criminal activity” without using one or more of the definitions or
titles found in our written laws, and it is equally unreasonable to refrain from
defining “criminal activity” when the same is a term used to justify a detention. It
would otherwise be completely subjective, with no standards, leading to a conflicted
system, and opening the door to corruption and/or personal bias of each individual
officer and/or Judge. It is better to provide guidelines and definitions when we can,
than to leave the definitions and standards open to unending debate. While it is not
always easy or practical to provide such guidelines, it is easy in this case. A
reasonable suspicion of “criminal activity” should be defined as a reasonable
suspicion of a violation of a “codified criminal law.”
vi. Geographic Area and Time of Day are Not Sufficient Alone
to Establish Justification of Detention
It was not established during the Motion to Suppress Hearing that this
particular area had more occurrence of general crime than other areas or other times
of the year, but there were occurrences of criminal mischief, burglary, and theft See
Court Reporter’s Record page 7, lines 16-19 and See Court Reporter’s Record page
15, lines 2-4). The Deputy was thus patrolling with suspicions for these particular
crimes. It is commendable for the Deputy to be suspicious of these crimes and
observe the area, but she needed more than what was presented to infringe on a
person’s Constitutional rights.
11
Deputy Vasquez did not testify about her training or elaborate on how her
experience led her to be suspicious of the Appellant herein. There was no testimony
that the area where Appellant was stopped was a high drug area. Therefore, the State
did not meet its burden of proof to justify the stop of Appellant.
III. The Court of Appeals’ Decision is in Conflict with Other Court of
Appeals’ Decisions on the Same Issue
A. Other Appellant Courts have Held that Sufficient Articulable Facts
Must Link a Suspect with a Particular Crime in Order to Justify a
Detention
The Brodnex Court, regarding the Ruling in Garza stated (with emphasis
added in bold by the herein Appellant): In Garza vs. State, 771 S.W.2d 549, the
officer had heard that the appellant was "good for" some burglaries, had seen the
appellant's mugshot, had received a description of the appellant's vehicle, and had
heard that the appellant was a narcotics addict. Garza, 771 S.W.2d 549 at 558-59.
The Court held that, because the officer's information never linked the appellant to
a particular crime, and that prior to stopping the appellant, the officer did not
observe anything to indicate that an offense had been or was being committed, the
detention was not supported by sufficient articulable facts. Id. Very similar to
Garza, the officer in Brodnex v. State had no information indicating that Appellant
was tied to a specific crime or was in the process of perpetrating one [and thus his
Motion to Suppress should have been granted]. Brodnex v. State, 485 S.W.3d 432
at 438 (2016).
12
CONCLUSION
The balancing act we are analyzing in this case is the difference between a
police state where an officer can make an ambiguous contention of labeling an
actor “generally suspicious,” to implement a stop, depriving a citizen of the
freedom of movement and privacy we all cherish, and a State which is based upon
the notion of personal freedom for the people to go about their business
uninterrupted. There is a point where living under greater power and discretion
conferred upon security forces becomes intolerable because you have lost your
freedom of movement and privacy, thereby depriving reasonable persons of the
dignity of perceived freedom; and without such dignity for some, the loss of the
very worth of existence in such a state. A prison, where an inmate can be detained
and searched at any time is certainly not a preferable place to live.
REQUEST FOR RELIEF
Appellant respectfully requests that this Court grant his Petition for
Discretionary Review and reverse the decision of the Court of Appeals. The
evidence seized should be ordered suppressed, and the conviction based on that
evidence should be reversed.
Respectfully submitted,
Ashton Adair
/s/ Ashton Adair
13
Attorney for Appellant
7400 Gulf Freeway
Houston, Texas 77017
Telephone: 713-777-5297
Fax: 844-273-9752
ash@houstontxlawyer.com
CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of November, 2017, a true and correct copy of
this Petition for Discretionary Review of the Appellant’s Tracy Lynn McGrew, Jr.,
was served upon The Montgomery County District Attorney’s Office by fax to fax
number 936-788-8395 and electronic document transmission.
Ashton Adair
/s/ Ashton Adair
14
APPENDIX
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11/07/2017 The petition for discretionary review does not contain a certification in compliance
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Documents
Petition for Discretionary Review of Appellant Tracy Lynn McGrew,
Lead Document [Original]
Junior.pdf
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