I was almost there. I was so close that I could feel it. I could touch it. I could see it. I could see the Montgomery County Judge saying, "Motion To Suppress Granted," and the State of Texas saying "Judge we will file this Motion to Dismiss." However, it wasn't to be. It wasn't to be because we worked the case us so good that the Montgomery County prosecutor dismissed both cases in exchange for my client forfeiting his handgun.
For the record, I would not have taken that deal under the circumstances, that's how confident I was in the facts of the case, my legal research, and that I would not let the government steal my gun (if I had one). However, as a client-centered lawyer, my job, my obligation is to inform my clients about the procedure, the potential courses of action, and the potential consequences of each course of action. In this case, the dismissals were all he wanted.
So, let's rewind to May of 2014, in a little speed-trap of a town called Patton Village. My client was driving a car his mother bought him for graduation north on highway 59 to visit his mother in Mississippi. He was traveling in the left lane, allegedly, without passing other vehicles. A Patton Village Cop followed him for, according to the cop, three miles. The cop turns on his dashboard camera as the cars approach the Liberty County Line (where liberty goes to die). In the video, you can see that my client's car is getting further from the white car in the right hand lane, and closer to the semi in front of him, thus appearing to be passing traffic and nullifying the reason for the stop.
The officer turns on his overhead emergency lights and pulls my client over. My client turns on his signal and makes safe lane changes until he comes to a safe stop on the shoulder, at which point he turns on his hazard lights. The Patton Village Cop calls in my client's Mississippi license plate number, exits his vehicle and goes to the driver door. The cop talks to my African American client for a full minute with his window down. My client gives the cop his license, insurance and registration, just as he's supposed to, and the cop orders my client out of the car. The cop waits for a another cop to arrive (not in the offense report as it should be) then returns to the squad car and runs my client's driver license.
About 15 minutes later, the cop learns that there are no arrest warrants for my client, he has no criminal history, he has only been pulled over once before, and that his car is coming back as stolen. The cop places my client under arrest and puts him in the back of the squad car. My client tells the officer that there must be a mistake, I mean, after all, the his registration and insurance are for that car, they have his name on it along with his mother's name, who shares the same last name and is registered to her address in Mississippi which is the address on my client's driver's license.
The officer agrees to call my client's mother. To be fair, he could have been a real big jerk and not done that, but on the other side of the token, the evidence before him was that the car was not stolen. His story made sense. So, the cop calls my client's mother who answers. The cop says hes in a stolen car. She asks what he's driving. She cuts him off, "is it a black 2006 chevy hhr?" Indeed it was. She assures the cop that the car was not stolen. The cop sayd he would let her son go in a few moments.
The cop then tells my client he is letting him go, but requests consent to search his vehicle. My client exercises his Fourth Amendment right to deny the officer consent to search. At this point, under a new Supreme Court Case called Rodriguez v. United States, the cop had a duty to let my client go. Instead, the cop called a K9 to search the outside of my client's car. The K9 arrives 15 minutes later (after more than an hour had already passed where the officer could have called the K9, or actually just searched the car since he had probable cause to believe a crime had been committed). The K9 made two hits, and the cops recovered some weed and pistol.
We argued that the fruit of the search, were fruits of the poisonous tree, and must be suppressed. In layman's terms, the cops illegally searched my client's car.
So quick rundown on searches and seizures. A cop can search a person or a place if there is a valid search warrant. IF there is not a valid search warrant, the search is presumed to be unlawful. An officer can search for contraband if he has probable cause." Probable cause is exists where facts and circumstances are sufficiently strong to justify a prudent and cautious person's belief that certain facts (that a person committed a crime) are probably true. Probable cause to search exists if the cop sees the person commit the crime, the contraband is in plain view, the officer's smells the weed... so on and so forth.
Here, the cop did not see and dope in plain view. The law holds that an officer must diligently pursue all reasonable avenues to confirm or dispel a belief, and that they must execute the ordinary tasks of a traffic stop in a diligent manner. So, an officer may not prolong a traffic stop to call a dog or conduct a search without probable cause.
What are the ordinary tasks of a traffic stop, you may ask? Investigating and issuing a ticket, running a warrant check to see if the driver if the driver is wanted for arrest, and do a license plate check to see if the car is stolen. In this case, the officer did a reasonable diligent job in doing the above, and he did a pretty great job at investigating once the car was stolen. However, once he determined the car was stolen, he did not have the right to detain my client any longer, unless he had developed a reasonable suspicion to believe my client was engaged in or was about to be engaged in criminal activity. FYI, all you officers out there, a HUNCH IS NOT ENOUGH TO DETAIN A MOTORIST!!!
In this case, the officer did not have an articulable reasonable suspicion to continue detaining my client and it was his right, as it is yours, dear reader, to DENY CONSENT TO SEARCH his vehicle. My client did not make incriminating statement, there was nothing in plain view, the car was not stolen, he was not a known drug dealer, he did not come from a known drug house, he was not intoxicated, his story made sense, he was calm, cooperative, honest, did not attempt to flee... I could continue, but you get the point.
There are a litany of cases that define what a cop can and cannot do in regard to a traffic stop. Rodriguez is great because it affirms absent a reasonable suspicion, the extension of a traffic stop a.k.a. prolonged detention is an unreasonable seizure, and that calling a K9 is not an ordinary or traditional aspect of a traffic stop.
If you have been arrested you need to hire a lawyer who loves to investigate unlawful searches and seizures. You need a lawyer who can read an offense report and smell something fishy. You need a lawyer who enjoys researching to protect your liberties.
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