MOTION TO SUPPRESS EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes KR, Defendant, by and through his attorney of record, JASON E. TRUMPLER, and respectfully moves this Honorable Court to suppress all evidence from the illegal prolonged detention, illegal search, and illegal arrest of KR as follows:
1. All physical evidence including but not limited to, the 120.8 grams of cocaine seized on or about August XX, 20XX, from KR’s automobile at mile marker X of IH X at the entrance to Highway X by law enforcement officers of the X Sheriff’s Department.
2. All photographs, digital still images and videotaped images taken of the physical evidence and the places or persons searched by law enforcement officers of the X Sheriff’s Department.
3. All testimony of any law enforcement officers, their agents, and all other persons working in conjunction with such officers and agents, as to the finding of any physical evidence at the scene of the illegal search challenged herein.
4. The results of any and all scientific tests or procedures conducted on any item of physical evidence seized under the illegal search challenged herein.
5. All statements whether written or oral of KR, any alleged co-conspirators, co-defendants or accomplices obtained as a result of the illegal search challenged herein.
6. Any physical evidence or testimony of any person discovered by law enforcement officers as a result of information gained through the illegal search of KR challenged herein.
7. In support of the Motion, KR would show this Honorable Court that the evidence seized and obtained was the result of a search of KR’s automobile without a valid search warrant, without consent, and without probable cause or reasonable suspicion of criminal activity in violation of KR’s constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution, Art. I, Section 9, of the Texas Constitution¸ and Tex. Code of Crim. Pro Art 38.23. Again this search was not the result of actual consent by KR. Further, the scope of this search exceeded that authorized by law.
STATEMENT OF FACTS
KR has been charged by indictment with the offenses of POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER, namely possession of cocaine in an amount of four grams or more but less than 200 grams, including any adulterants or dilutants. In addition, the penalty paragraph alleges that KR suffered a prior conviction for Delivery of a Controlled Substance in cause number ZZZ-99-XXXX in the District Court of C County, Texas, on or about July X, 20XX. The penalty paragraph makes this offense a 1st Degree Felony punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years.
KR has filed a Motion to Suppress Evidence in which he contends that his arrest and subsequent prosecution is predicated on an illegal prolonged detention and search.
In the instant case, DR of the X Sheriff's Department conducted a traffic stop on the automobile KR was driving because he allegedly made several abrupt and unsafe lane changes while following other vehicles too closely. DR allegedly observed these violations at around mile marker 2X on northbound IH X. Ultimately, DR' conducted a traffic stop of Mr. R's automobile at mile marker X at the entrance of the off ramp to Highway X. It should be noted that none of these alleged violations appear on the video tape of the stop and arrest.
Shortly after the stop, DR went back to his patrol car and ran Mr. R through dispatch to check for warrants and to check his criminal history. This process took several minutes. After checking Mr. R’s prior criminal history and for warrants, DR’ returned to Mr. R’s car and from the video appears to begin to write a citation.
As DR was citing Mr. R for the alleged violations noted above, DR asked Mr. R, if there was anything in Mr. R’s automobile that DR should know about. Mr. R responded that there was not, to which DR replied something to the effect of then you won’t mind if I search it. After DR’s reply, a short conversation ensues between DR and Mr. R. Ultimately, Mr. R denies consent for DR to search his car. DR is then heard radioing for a drug detection dog and asks Mr. R to step out of the car. This is approximately 8 minutes into the detention.
DR stated in his report that the reason he called in the drug dog was because he felt that Mr. R’s answers to his questions about drugs and his prior history were evasive. It should be noted that it is clear from the video that DR does not ask Mr. R about his prior history until after he has him step out of the car to wait for the drug dog. Moreover, DR later says to the canine officer that he [DR] detained Mr. R and called the canine unit out because Mr. R did not give him [DR] consent to search his car. A person has an absolute constitutional right to deny consent to a warrantless search his or her person or property, and the mere fact that a subject denies consent does not open the door to reasonable suspicion to search.
After being detained for over 25 minutes the canine and canine officer arrived on the scene. Within a few minutes the canine keyed in on the trunk of Mr. R’s vehicle. While both officers are rummaging through Mr. R’s trunk, Mr. R flees the scene on foot. A few moments later officers find 120.8 grams of cocaine in the trunk of the car.
AUTHORITIES AND ARUGMENT
In Terry v. Ohio, the United States Supreme Court held that a temporary investigative detention may be reasonable if: (1) the officer's action was justified at its inception; and (2) the detention was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). For the officer's action to be justified, he "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id., 392 U.S. at 21, 88 S.Ct. at 1880; Davis v. State, 947 S.W.2d 240 (Tex.Cr.App. 1997). Moreover, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Davis, 947 S.W.2d at 243 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983)).
Simply put, an officer may detain an individual if he or she has reasonable suspicion to believe that the person is engaged in criminal activity. Davis v. State, 947 S.W.2d 240 (Tex.Cr.App. 1997). Once the officer finishes the investigation and resolves the issues raising suspicions, a continued detention is not permitted. Davis, supra at 245. With regard to traffic stops, the officer may detain the individual long enough to resolve the initial suspicions. For instance, if the officer stops a vehicle, he or she may request information regarding driver's license, vehicle ownership, and insurance, the driver's destination and the purpose of the trip, as well as inquiring about any traffic violation. See Mohmed v. State, 977 S.W.2d 624 (Tex.App. - Fort Worth 1998 pet. ref'd)
If, however, the length of the detention exceeds that permitted under the facts establishing reasonable suspicion, then evidence subsequently discovered may be subject to suppression. While the use of a trained canine to sniff the outside of an automobile is not a search within the meaning of the Fourth Amendment, United States v. Place, 462 U.S. 696 (1983), an officer still cannot even temporarily detain a subject in order to have a canine sniff a vehicle unless the officer has objective information to support a reasonable suspicion that the person is or soon will be involved in illegal activity. Mohmed v. State, 977 S.W.2d 624 (Tex.App. - Fort Worth 1998 pet. ref'd). (This does not mean that an officer cannot have the canine sniff a vehicle, since it is not technically a search, within the ordinary length and scope of the permissible detention Illinois v. Caballes, 125 S.Ct. 834 (2005)). In the instant case, unlike Mohmed, DR did not and cannot articulate specific facts that would justify reasonable suspicion to detain Mr. R for a period beyond what would normally be required to issue a traffic citation. In Mohmed, the officer smelled the obvious odor of Marijuana emanating from the vehicle before he requested the assistance of a drug canine. In Wolf v. State,137 S.W.3d 797 (Tex.App. - Waco 2004, no pet.), a case far more factually similar to the instant case, the appellate court held that officers exceeded the length of a proper traffic stop when they held the defendant for an additional three minutes in order for another officer to bring a drug detection dog to the scene The court made this determination because much like the instant case, the officer had no additional information to justify reasonable suspicion to prolong the detention of the defendant beyond what was necessary to issue a citation in order to wait for the arrival of a drug dog.
Similarly, in both Jones and Dortch, (United States v. Jones, 234 F.3d 234 (5th Cir.2000); United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), which dealt with traffic stops, the circuit court of appeals found prolonged detentions of motorists to violate the Fourth Amendment. Dortch was stopped for traveling too close to a tractor-trailer. Dortch, 199 F.3d at 195. Jones was a passenger in a vehicle driven by Daniel, who was stopped for a speeding violation. Jones, 234 F.3d at 237. In both cases the officers prolonged the detention while awaiting the arrival of narcotics-sniffing dogs, despite a lack of reasonable suspicion of illegal activity, and after the dispatcher in each case notified the officers that the motorists had clean criminal histories or no outstanding warrants. Jones, 234 F.3d at 238, 241; Dortch, 199 F.3d at 196, 199. Jones was detained an additional three minutes, and Dortch was detained about five minutes before the canine and its handler arrived on the scene. Jones, 234 F.3d at 238; Dortch, 199 F.3d at 196. Because of the absence of reasonable suspicion, the court found these prolonged detentions to violate the Fourth Amendment. Jones, 234 F.3d at 241; Dortch, 199 F.3d at 202-03. The Dortch court opined: "To hold otherwise would endorse police seizures that are not limited to the scope of the officer's reasonable suspicion and that extend beyond a reasonable duration." Dortch, 199 F.3d at 199-200. In the instant case, Mr. R was detained far longer than the 3 to 5 minutes mentioned in the cases above. In fact, he was detained for over 25 minutes until the canine arrived on scene.
The above cases holding that detaining someone while waiting for drug dog to arrive on the scene to sniff the exterior of a vehicle without reasonable suspicion are easily distinguishable from Illinois v. Caballes, 125 S.Ct. 834 (2005) in that, in Caballes the drug dog arrived while the officer was writing a speeding citation for the defendant. The defendant’s detention in Caballes was not prolonged in that the officer was writing the citation while the canine was contemporaneously sniffing the exterior of the vehicle.
Any argument by the State that Mr. R's behavior during his interaction with DR was suspicious and somehow created reasonable suspicion to detain Mr. R for more than 25 minutes while DR waited for a drug dog to arrive on scene to sniff Mr. R's automobile is equally suspect. While Crockett v. State, 803, S.W.2nd 308, 311 (1991), does not involve the search of an automobile, the Texas Court of Criminal Appeals clearly asserted in that case that conduct deemed to be suspicious on the part of law enforcement officers must be "sufficiently distinguishable from that of innocent people under the same circumstances as to clearly, if not conclusively, set the” suspect’s behavior apart from innocent people. (Quoting Brown v. Texas, 443 U.S. 47, 52 (1979). In Crockett, the State brought forth a litany of testimony that it believed showed that the defendant was acting in a suspicious enough manner to form reasonable suspicion for the officer to detain the defendant for a short period for the drug dogs to sniff his bags at a railroad station. In Crockett, the State brought forth far more evidence than the State can in the instant case in an attempt to support a finding of reasonable suspicion, and the Texas Court of Criminal Appeals ruled that the assertion that the defendant's behavior was suspicious was not sufficient enough to justify even a short detention to have a dog sniff the defendant's luggage because it was not sufficiently suspicious to set it apart from the behavior of innocent people.
The State in the instant case may further argue that Mr. R abandoned his interest in the automobile thereby negating his standing to challenge the prolonged detention. Ordinarily, the State would be right. Generally, when an accused abandons property, he no longer has standing to complain of alleged police misconduct in the seizure of the property. McDuff v. State, 939 S.W.2d 607 (Tex.Cr.App. 1997). In this case, however, after being detained unlawfully in excess of 25 minutes, Mr. R fled the scene on foot while the officers were rummaging through his trunk, thereby arguably abandoning the automobile. This being said, it is also true that, if an accused abandons property in response to unlawful police misconduct, the abandonment will not be considered a voluntary or independent act and thus the protections of the Fourth Amendment will still apply. Hawkins v. State¸758 S.W.2d 255 (Tex.Cr.App. 1988). Also, see Gordon v. State, 4 S.W.3d 32 (Tex. App - El Paso)
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court suppress such matters at trial of this cause, and for such other and further relief in connection therewith that is proper. Moreover, if the Court denies Defendant’s Motion to Suppress then Defendant respectfully prays that the Court will issue a written Findings of Fact and Conclusions of Law for appellate purposes.