Alexander, Adrian Broncha ( 2015 )

PD-1070-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/20/2015 1:13:32 AM
Accepted 2/20/2015 8:48:30 AM
PD 1070-14 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
ADRIAN BRONCHA ALEXANDER,
Petitioner
v.
February 20, 2015
THE STATE OF TEXAS,
Appellee
_________________________________________________________________
On Appeal from the Tenth Court of Appeals
Waco, Texas
10-12-00281-CR
PETITIONER’S MOTION FOR REHEARING
__________________________________________________________________
TO THE HONORABLE JUDGES OF SAID COURT:
Petitioner in the above cause respectfully moves this Court to grant
a rehearing based on the following grounds:
I.
This Court should reconsider the PDR in this case because it is
important to the jurisprudence of the State for the following reasons.
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One question presented by this case is how far can the lower
courts go in carving out an exception to the “plain feel” doctrine that
never existed under Federal law (Minnesota v. Dickerson) or our State
law as set forth by this Court. Carmouche v. State, 10 S.W.3d 323 (Tex.
Crim. App. 2000) and Baldwin v. State, 278 S.W. 3d 367, (Tex. Crim. App.
2009)
The “new exception” being carved out is that it is acceptable for a
police officer in Terry situations if he feels an object during a pat-down
that he believes “could be a weapon”, “is unsure” or “does not know” what
the item is; then the officer is justified in searching or emptying the
pockets and seizing the item anyway for protective reasons. This “new
exception” does not comport with U.S. law or this Court’s
pronouncements. The percolating opinions of our lower courts are
increasingly deviating from the accepted principles of Minnesota v.
Dickerson and its Texas progeny, Baldwin and Carmouche.
The latest case is Clark v. State 444 S.W.3d, 671 at 676-677, (Tex.
App. Houston 14th 2014, pet. ref’d) which cited this case, Alexander v.
State in support of the proposition that unless the officer "already knew"
or "had concluded" the relevant portion of the clothing "contained no
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weapon," or the officer makes "no claim that he suspected the object to be
a weapon," or the court finds such a claim not to be credible or reasonable
based on the information available to the officer, that the safety
justification disappears; then the “plain feel” doctrine of Dickerson
becomes the remaining possible basis for a lawful warrantless seizure in
the course of a pat-down search. 1 (emphasis added)
1
Other cases cited by Clark for this “new exception” that are flying under this
court’s radar are:
Raines v. State, No. 03-08-00333-CR, 2010 Tex. App. LEXIS 422, 2010 WL '-199663,
at *3 (Tex. App.-Austin Jan. 21, 2010, no pet.) (mem. op., not designated for
publication):
The officer testified “he felt a large, compact object in the rear
area of (defendant’s) pants … I didn’t know if it might be a box of razor blades, I
didn’t know what it was, but for my safety, I had to find out what it was.”
Merrill v. State, No. 08-09-00216-CR, 2010 Tex. App. LEXIS 74~ 2010 WL 3495955,
at * 2 (Tex. App.-EI Paso Sept. 8, 2010, pet. ref'd) (mem. op., not designated for
publication):
The trooper noticed a “bulge” in the (defendant’s) front pocket. It felt like “a
baggie”. He reached in and retrieved it. The search was upheld because the trooper
took precautionary measures (because the bulge could be a weapon).
Johnson v. State, Johnson v. State, No. 01-04-0493-CR, 2005 Tex. App. LEXIS
8661, 2005 WL 2668228, at *3 (Tex. App.-Houston [1st Dist.] Oct. 20, 2005, no pet.)
(mem. op., not designated for publication):
…“long hard object” that could be a “weapon”, could be a knife – was a crack
pipe”
The officers (subjectively) felt threatened prior to pat down.
Farmer v. State, 47 S.W.3d 187, 193-94 (Tex. App. – Texarkana 2001, pet. ref’d):
Testified “he felt a large object…did not know whether the object was a
weapon.” He then retrieved it “for his protection.”
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This “exception” just does not comport with existing law.
“Moreover, even though a particular officer might believe a bulge
conceals a weapon, a purely subjective impression is not an “objective
justification” that can be judicially examined against the requirements of
the Fourth Amendment. To accept such a subjective impression without
further elaboration would be tantamount to judicial acquiescence in an
officer’s legal determination that the requirements of the Fourth
Amendment have been satisfied.” Singleton v. U.S. 998 A.2d 295 at 302
(D.C. App. 2010)
Another question Alexander presents is the “catch 22” of the “do you
have any ID?” question which, if the defendant answers afirmatively
while handcuffed, does not authorize the officer to reach into the pocket
and search without probable cause. Id Baldwin at 372 However, the
lower court held that if the defendant responds to such an inquiry by
reaching for the pocket containing his wallet and ID, it becomes a “furtive
Haston v. State, 1999 Tex. App. LEXIS 7545, no pet.:
During frisk of Defendant’s crotch area, he (officer) “felt something abnormal
there”. Unsure what it was, but it might have been a weapon and as a “safety
precaution”, undid his belt and opened his pants. (emplasis added)
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gesture” that allows the officer to reach into the pocket and retrieve the
wallet. Alexander opinion at p 12
Finally, Alexander was decided before Mathews v. State, 431 S.W.3d
596, (Tex. Crim. App. 2014) The lower court’s conclusions in Alexander
concerning the reliability of this “911” anonymous tip differ substantially
from this Court’s interpretation as set forth in Appellant’s PDR.
Conclusion
The actions by the various lower courts are no longer a web of
accidents, but a definite departure from the established principles and
protections afforded by the Fourth Amendment. Counsel respectfully
suggests that this Court’s poverty of intervention will continue to
manifest itself as emanations of approval of their collective actions.
Prayer
Petitioner requests this Court to grant this motion, ultimately
grant the PDR and accordingly, so prays.
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Respectfully submitted,
/s/Charles W. McDonald
Charles W. McDonald
ATTORNEY AT LAW
2024 Austin Avenue
Waco, Texas 76701
Work: (254) 752-9901
Fax: (254) 754-1466
SBOT No. 13538800
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
This brief complies with the type-volume limitation of Tex. R. APP.
P. 9.4(i) because it contains 829 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).
This brief complies with the typeface requirements and the type
style requirements of TEX. R. APP. P. 9.4(e) because it has been produced
on a computer in conventional typeface using Century Schoolbook in 14
point font in the body of the brief and Century Schoolbook 12 point font
in the footnotes.
/s/Charles W. McDonald
Dated: 2-19-15
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the above
and foregoing instrument was served upon Abelino “Abel” Reyna,
McLennan County Criminal District Attorney, 219 N. Sixth Street, Suite
200, Waco, Texas 76701-1363, according to rule and law, this 19th day of
February, 2015.
/s/Charles W. McDonald
Charles W. McDonald
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