An interesting opinion dropped from the Texas Court of Criminal Appeals this week. In the case, an undercover police officer was surveilling a sports bar in Houston known for its well documented history of drug busts. In actuality, under the guise of surveillance, the police officer was probably profiling customers at the local bar. One unlucky man stopped at the bar and stayed for what the officer stated was in the range of three to five minutes and then left. The officer followed the man and then called for a marked car to make the bust so as not to blow his cover. The marked police car then pulled the man over for an alleged lane change without a turn signal. Before stopping the car, the officer noticed the man making furtive gestures around the console in the vehicle. This is a ruse officers use to try and make a search. As if a person in a car behind you can see what you are doing in front of them in your car at night. Please. The uniformed officer then arrested the man and searched his vehicle. In the search, the officer finds two baggies of cocaine. One in the center console and one between the console and the passenger seat.
The attorney for “citizen accused” filed a motion to suppress the evidence of the search in the trial court but the motion was denied. The man subsequently entered into a plea agreement for three years deferred adjudication but preserved his right to appeal the ruling of the trial court. Under the Fourth Amendment, a search of a person or property is not reasonable without a warrant without a specifically defined exception. One of these exceptions is termed the “automobile exception.” Under the automobile exception, police may search your car without a warrant if there is probable cause to believe that the vehicle contains contraband.
The court of appeals considered the issue of probable cause in this matter. There, the Court used the following facts to justify the search. First, the officer was performing surveillance on a bar known for drug sales. Second, while the man was stopped in a turn lane, with marked police car behind him, and an undercover officer beside him. Staring. Said the man made furtive gestures in his car. Okay, so two cops have you boxed in and are staring you down. You’re supposed to act cool, right? Sure. The court of appeals affirmed the finding of the trial court. The ruling that being at a bar known for drug activity and making furtive gestures while being boxed in by two cops was enough for probable cause to arrest you. Fair, right?
The Court of Criminal Appeals didn’t think so. The CCA had the courage to call this opinion out as being garbage. The CCA opined that they have held repeatedly that furtive gestures alone are not a sufficient basis for probable cause. The CCA stated, “While furtive movements are a valid indicia of mens rea, they must be coupled with reliable information or other suspicious circumstances relating to the suspect to the evidence of crime to constitute probable cause.”
The CCA went on to analyze whether these so called, “furtive gestures” coupled with the person being seen at a bar that is known as a “narcotics establishment” would actually give rise to probable cause for an arrest and search of the car. The Court of Criminal Appeals found that these two weak indications did not give rise to probable cause. Who doesn’t make odd maneuvers when they are being eyeballed by a cop? Plus, who in their right mind goes for drinks and thinks, “I wonder if this bar is a hotbed of drug sales?”
What’s the moral of this story? It’s that citizens are constantly being accused of committing crimes based on arrests that are complete BS. If you find yourself the subject of a drug bust or an arrest based on baloney as above, do yourself a favor and hire an experienced criminal defense attorney immediately. Don’t become the victim of a police fishing expedition.
Ron Voyles is an attorney and a chiropractor with over twenty years of experience in the litigation of personal injury and the defense of drug and alcohol crimes. Ron practices in Montgomery, Harris, Walker, Grimes, Madison, San Jacinto, and Leon Counties.