O'bryan, Robert ( 2015 )

PD-0834-15
No. ____________________
(Court of Appeals No. 02-14-00313-CR
_________________
IN THE COURT
OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN, TEXAS
__________________
ROBERT O’BRYAN,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent,
___________________
PETITION FOR DISCRETIONARY REVIEW
___________________
FROM THE SECOND DISTRICT
COURT OF APPEALS
____________________
ARISING IN COUNTY CRIMINAL COURT NUMBER ONE
DENTON COUNTY, TEXAS
(Trial Court No. CR-2013-08057-A)
___________________
RICHARD GLADDEN
State Bar No. 07991330
Law Office of Richard Gladden
July 7, 2015 1200 West University, Suite 100
Denton, Texas 76201
940/323-9300 (voice)
940/539-0093 (fax)
richscot1@hotmail.com (email)
July 6, 2015 ATTORNEY FOR PETITIONER
IDENTITY OF PARTIES
COURT OF APPEALS: SECOND JUDICIAL DISTRICT:
Justice Lee Ann Daughinot;
Justice Lee Gabrial; and
Justice Bonnie Sudderth
TRIAL COURT: THE COUNTY CRIMINAL COURT
NUMBER ONE,
DENTON COUNTY, TEXAS:
Judge Jim E. Crouch
PETITIONER:
Robert O’Bryan
C/O Richard Gladden
1200 West University Street, Suite 100
Denton, Texas 76201
Telephone: 940/323-9300
Facsimile: 940/539-0093
PETITIONER’S ATTORNEY:
Richard Gladden
State Bar No. 07991330
1200 West University Street, Suite 100
Denton, Texas 76201
Telephone: 940/323-9300
Facsimile: 940/539-0093
Email: richscot1@hotmail.com
i
APPELLATE AND TRIAL ATTORNEYS FOR THE STATE OF TEXAS:
Paul Johnson Lisa C. McMinn
Denton County Criminal District Attorney State Prosecuting Attorney
P.O. Box 13046
Catherine Luft, Assistant Denton Co. Austin TX 78711
Criminal District Attorney (appeal only) Telephone: 512/463-1660
Facsimile: 512/463-5724
Lara Tomlin, Assistant Denton Co.
Criminal District Attorney (appeal only)
Julie Harbin, Assistant Denton Co.
Criminal District Attorney (trial only)
Denton Co. Criminal District Attorney’s Office
Denton County Courthouse, Third Floor
1450 East McKinney Street
Denton, Texas 76209
Telephone: 940/349-2600
Facsimile: 940/349-2751
ii
TABLE OF CONTENTS
Page
Identity of the Parties………………………………………………….. i
Table of Contents……………………………………………………… iii
Index of Authorities..………………………………………………….. v
Statement Regarding Oral Argument………………………………….. 1
Statement of the Case:
A) Prior Proceedings……………………………………………….. 2
B) Statement of Facts………………………………………………. 9
Question Presented for Review………………………………………... 9
Grounds (or Reasons) for Granting Review…………………………... 9
Argument (On “Grounds [or Reasons] for Granting Review):
1) The Second Court of Appeals’ decision below directly conflicts
with the U.S. Supreme Court’s decision in United States v.
Hensley, 469 U.S. 221, 232 (1985)(Tex.R.App.P. 66.3(c)).
……….. 10
2) The issue decided by the Second Court of Appeals in this case
involves an important, recurring question of federal
constitutional law that should be, but has not been, decided by
the Texas Court of Criminal Appeals (Tex.R.App.P. 66.3(b)).
…………. 14
iii
Page
3) The Second Court of Appeals’ decision below directly conflicts
with a near consensus among decisions rendered by other
intermediate State appellate courts and State courts of last
resort, as well as with at least one U.S. District Court; and the
Court of Appeals’ peculiar departure from that consensus on
the issue at hand has been characterized by an esteemed legal
treatise as “bizarre” and “clearly wrong.” (Tex.R.App.P.
66.3(f)).
……………………………... 15
4) The Panel of the Second Court of Appeals which rendered the
decision in this case was divided, resulting in the issuance of a
dissenting opinion (Tex.R.App.P. 66.3(e)).
……………………. 17
Conclusion and Prayer for Relief……………………………………… 18
Certificate of Compliance……………………………………………... 18
Certificate of Service………………………………………………….. 19
APPENDIX:
Majority Opinion and Judgment, O’Bryan v. State, No. 02-14-00313-
CR, 2015 WL 3422093 (Tex.App. Fort Worth, May 28, 2015)(not yet
published)(“Pet.App.-A”)
…………………………….. TAB ONE
Dissenting Opinion, O’Bryan v. State, No. 02-14-00313-CR, 2015
WL 3422093 (Tex.App. Fort Worth, May 28, 2015)(per Dauphinot,
J.)(not yet published)(“Pet.App.-B”)
…………………… TAB TWO
iv
INDEX OF AUTHORITIES
Cases: Page
Albo v. State, 477 So. 2d 1071 (Fla. Dist.Ct.App. 1985)…………... 15
Carter v. State, 305 A.2d 856 (Md. Ct. Spec. App. 1973)…………. 16
Md. v. Garrison, 480 U.S. 79 (1987)………………………… 13
People v. McElhaney, 552 N.Y.S.2d 825 (N.Y.Sup.Ct 1990)……... 16
People v. Ramirez, 668 P.2d 761 (Ca. 1983)………………………. 15
State v. Mance, 918 P.2d 527 (Wash. Ct. App. 1996)……………... 16
State v. Moore, 614 A.2d 1360 (N.J. Super. Ct. App. App. 1992)… 15
Terry v. Ohio, 392 U.S. 1 (1968)…………………………………... 13
United States v. Anderson, No. 4:07-CR-0023, 2007 WL 4732033
(N.D. Ohio June 21, 2007)(unpublished)
…………………………... 16
United States v. Hensley, 469 U.S. 221 (1985)…………………….. 9-11
Statutes, Codes, Rules, and Constitutional Provisions:
Article 38.23, Texas Code of Criminal Procedure…………............. 2
Section 483.041, Texas Health & Safety Code…………………….. 2
Rule 9.4, Texas Rules of Appellate………………………………... 18
Fourth Amendment to the United States Constitution……………... passim
Other Sources:
LaFave & Baum, Search and Seizure: A Treatise on the Fourth
Amendment (5th ed. 2012).
…………………………………………. 13, 17
v
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:
COMES NOW Petitioner Robert O’Bryan, and, pursuant to Rules 66
and 68, et seq., of the Texas Rules of Appellate Procedure, files this Petition
for Discretionary Review.
STATEMENT REGARDING ORAL
ARGUMENT
The Second Court of Appeals’ decision in this case involves an
important question of Federal Constitutional Law that has not been, but
should be, decided by the Court of Criminal Appeals.1 In light of the
importance of the constitutional question presented, the recurrent nature of
the question, and the relative complexity of the legal issue involved,
Petitioner respectfully submits that oral argument would significantly aid the
Court in reaching its decision on the merits and that oral argument should
therefore be granted.
1
O’Bryan v. State, No. 02-14-00313-CR (Tex.App. Fort Worth, May 28, 2015), slip
opinion at 8 (“While four States have extended the collective knowledge doctrine to
apply prohibitively, Texas is not one of them.”)(not yet published), attached hereto in
Petitioner’s Appendix (hereinafter “Pet. App.-A”); 2015 WL 3422093, *3.
1
STATEMENT OF THE CASE
A) Prior Proceedings.
On October 31, 2013, Petitioner (hereafter “Defendant”) was charged
by Complaint and Information with two counts of violating Section 483.041
of the Texas Health & Safety Code (“Possession of a Dangerous Drug”), a
Class A misdemeanor.2 On March 28, 2014, Defendant filed a motion to
suppress all evidence and testimony obtained by the State as the result of the
stop and detention of Defendant.3 In his motion Defendant alleged the initial
stop of his motor vehicle and his detention thereafter was without reasonable
suspicion and therefore violated the Fourth Amendment to the United States
Constitution, as made applicable to the States by virtue of the Fourteenth
Amendment. On this basis Defendant’s motion further contended that he
was entitled, as a matter of Texas statutory law under Article 38.23 of the
Texas Code of Criminal Procedure, to an order that rendered inadmissible all
testimony and evidence obtained by police as the result of the stop and
detention.4
2
Clerk’s Record, 5-6. Hereinafter, references to “CR” are to the “Clerk’s Record,” which
will be followed by a specific page number within the Clerk’s Record; the Reporter’s
Record will be referred to as “RR,” followed by a volume designation, e.g. “II,” and page
number, e.g., “3.”
3
CR, 33.
4
CR, 33, 38.
2
On May 16, 2014, an evidentiary hearing was held on Defendant’s
motion to suppress.5 On May 29, 2014, the Trial Court entered a written
order denying Defendant’s motion.6 On July 11, 2014, the State and
Defendant entered into a plea agreement that disposed of this case without
further trial-court proceedings. Under this plea agreement the State, in
exchange for Defendant’s entry of a plea of guilty, recommended that the
Trial Court enter an order placing Defendant under community supervision
for a period of 12 months, without a finding of Defendant’s guilt, and that
the Trial Court’s order impose of a fine of $400.7 Additionally, the plea
agreement preserved Defendant’s right to appeal from the Trial Court’s
adverse ruling on his pretrial motion to suppress.8 On July 11, 2014, the Trial
Court accepted this plea agreement and entered an order placing Defendant
on community supervision without an adjudication of guilt.9
On August 7, 2014, Defendant timely filed notice of appeal from the
Trial Court’s denial of his pre-trial motion to suppress.10 On May 28, 2015, a
divided panel of the Second Court of Appeals rendered a published decision
5
RR II, 1.
6
CR, 63.
7
CR, 74.
8
CR, 76.
9
CR, 70.
10
CR, 81.
3
which affirmed the Trial Court’s judgment.11 This petition for discretionary
review followed.
B) Statement of Facts.
The material facts in this case are undisputed.12 On August 18, 2012,
Defendant’s father, Charles O’Bryan, reported to the Denton Police
Department that his motor vehicle, a 1994 Pontiac Grand Am, Texas License
Plate “DD6-M895,” had been stolen from near his residence located at 1022
West Congress in the City of Denton, Texas.13 Officer Danny Steadham of
the City of Denton Police Department (“Steadham”) was then dispatched in
response to this report and conferred with Defendant’s father at his home.14
As part of his investigation, Steadham determined that the vehicle in
question had not been reported as “towed” by any towing company.15 Upon
concluding his investigation, Steadham then requested at the end of his
report that a “Teleserve” entry be made reporting the vehicle as “stolen.”16
Apparently in accordance with Denton Police Department policy, a
11
Pet.App.-A (Majority Opinion); Pet.App.-B (Dauphinot, J., dissenting)
12
Pet.App.-A (Majority Opinion), at 2; 2015 WL 3422093, *1 (“The facts of this case are
undisputed.”).
13
CR, 43. Pages 40 through 48 of the Clerk’s Record (CR, 40-48), which originally
comprised a single exhibit attached to Defendant’s motion to suppress, were admitted
into evidence at the hearing on Defendant’s motion to suppress without objection from
the State. See, RR II, 31-32; RR III. For clarity in citation, Defendant herein refers to
these documents as they appear individually paginated in the Clerk’s Record.
14
CR, 42.
15
CR, 43.
16
CR 43, 46.
4
dispatcher at the Denton Police Department who was “certified” to perform
this task then entered that information into the TCIC/NCIC computer data
systems.17
On September 12, 2012, Officer Landolfo of the Denton Police
Department (“Landolfo”) was dispatched to Motorsports Towing Company
in Denton, Texas.18 Upon arrival Landolfo was informed by Officer Cottrell
(“Cottrell”), a “Parking Officer” with the Denton Police Department, that the
aforementioned vehicle had been ticketed and marked for impoundment on
September 5, 2012, and had been subsequently towed to Motorsports
Towing Company on September 12, 2012.19 After the vehicle had been
towed, Cottrell was notified that the vehicle had been reported stolen, and
Cottrell confirmed this fact in reliance on an electronic data base maintained
by law enforcement authorities.20 Landolfo then contacted Defendant’s
father, the owner of the vehicle, and advised him to contact Motorsports
Towing Company and make arrangements for the return of his vehicle.21 A
short time later Defendant’s father made such arrangements, and retrieved
the vehicle from Motorsports Towing Company.
17
RR II, 22-23.
18
CR, 45.
19
CR, 45.
20
CR, 45.
21
CR, 45.
5
More than five (5) months later, at approximately 3:15 p.m. on
February 23, 2013, Officer Dwight Thornton of the City of Northlake Police
Department (“Thornton”) observed Defendant driving his father’s vehicle on
Interstate 35W traveling northbound.22 Although he observed nothing
unusual about Defendant’s driving and did not observe Defendant commit
any traffic violation or criminal offense, Thornton “ran a routine records
check” on the license plate of the vehicle using his in-car computer.23
Thornton then received a “return” on that inquiry which notified him that the
vehicle being operated by Defendant (Defendant’s father’s vehicle) was a
“stolen” vehicle.24 The Defendant was thereupon stopped by Thornton
without incident, and as the result of this stop and detention, Defendant was
arrested and the contraband made the basis of the present criminal case
against Defendant was obtained by Thornton during a search of the vehicle.25
Later in the day of Defendant’s arrest on February 23, 2013,
Defendant’s sister, Lori Reeves (“Reeves”), contacted the Denton Police
Department and spoke with Sergeant Frank Padgett (“Padgett”).26 On being
informed by Reeves that the vehicle in question had been recovered by
Denton Police more than five (5) months earlier, Padgett after independent
22
CR, 47.
23
CR, 47; RR II, 8, 16-17.
24
CR, 47; RR II, 21-22.
25
CR, 47; RR II, 15.
26
CR, 46
6
inquiry promptly discovered that “[t]he vehicle had not been removed from
TCIC/NCIC when it was recovered in September 2012.”27 As the result of
this discovery, Defendant was subsequently released from the Denton
County Jail, where he had been transported after his arrest, without being
charged with felony theft of the vehicle. The Defendant was, however,
required to post bail to secure his appearance and answer to the charge made
the basis of the present case, i.e., “Possession of a Dangerous Drug.”28
Testimony at the hearing on Defendant’s motion to suppress revealed
that while dispatchers with the Denton Police Department are responsible for
removing stolen vehicle reports from the TCIC/NCIC systems when they are
recovered, Denton Police Department officers and investigators are
responsible for notifying Denton dispatchers when that should be done.29
Landolfo’s supplemental report (CR, 45), which recorded recovery of the
vehicle, was not in the “paper” file kept by the Denton Police Department
either when the “stolen vehicle” was “confirmed” at the time of Defendant’s
arrest on February 22, 2014, or the following day when Padgett conducted
his own independent investigation into whether the vehicle had been
27
CR, 46
28
CR, 5-6, 13.
29
RR II, 22-24, 26.
7
recovered five months earlier.30 Padgett was apparently able to locate
Landolfo’s supplemental report (disclosing that the vehicle had been
recovered on September 12, 2014) using the “RMS,” which is a system into
which Denton Police officers and investigators enter their reports.31 Denton
Police Department dispatchers, however, do not have access to the RMS
system.32
Ultimately, testimony at the hearing on Defendant’s motion to
suppress fell short of establishing, conclusively, whether the error that
resulted in Defendant’s detention was the fault of Landolfo, or was instead
the fault of a dispatcher at the Denton Police Department who was on duty at
the time the vehicle was recovered on September 12, 2013.33 In either case,
it is undisputed that the error which resulted in Defendant’s detention five
months after the vehicle had been recovered is assignable to the Denton
Police Department.34
30
RR II, 23-24, 29.
31
RR II, 29.
32
RR II, 28.
33
RR II, 230 (assigning error to Landolfo), but see RR II, 32-33 (“it could have been
Dispatch” that committed the error).
34
RR II, 33-34.
8
QUESTION PRESENTED FOR REVIEW
Whether the “Collective Knowledge” Doctrine under the Fourth
Amendment, Approved by the U.S. Supreme Court in United States v.
Hensley, 469 U.S. 221, 232 (1985), Constitutionally Permits the Seizure of
a Motorist When the Law Enforcement Agency Confirming the Existence
of an Electronic “Stolen Vehicle” Report, at the Time of the Seizure, is in
Possession of Information that Conclusively Dispels “Reasonable
Suspicion” to Support the Stop.
GROUNDS (OR REASONS) FOR GRANTING REVIEW
1) The Second Court of Appeals’ decision below directly conflicts with the
U.S. Supreme Court’s decision in United States v. Hensley, 469 U.S. 221,
232 (1985).35
2) The issue decided by the Second Court of Appeals in this case involves
an important, recurring question of federal constitutional law that should
be, but has not been, decided by the Texas Court of Criminal Appeals.36
35
Tex.R.App.P. 66.3(c)(“[W]hether a court of appeals has decided an important question
of… federal law in a way that conflicts with the applicable decisions of…the Supreme
Court of the United States.”).
36
Tex.R.App.P. 66.3(b)([W]hether a court of appeals has decided an important question
of …federal law that has not been, but should be, settled by the Court of Criminal
Appeals.”)
9
3) The Second Court of Appeals’ decision below directly conflicts with a
near consensus among decisions rendered by other intermediate State
appellate courts and State courts of last resort, as well as with at least one
U.S. District Court; and the Court of Appeals’ peculiar departure from
that consensus on the issue at hand has been characterized by an
esteemed legal treatise as “bizarre” and “clearly wrong.”37
4) The Panel of the Second Court of Appeals which rendered the decision in
this case was divided, resulting in the issuance of a dissenting opinion.38
ARGUMENT
1) The Second Court of Appeals’ decision below directly conflicts with the
U.S. Supreme Court’s Decision in United States v. Hensley, 469 U.S.
221, 232 (1985).
Under what has become known as the “collective knowledge”
doctrine the U.S. Supreme Court has held that when a police officer in the
field, without personal knowledge of facts that would justify a detention, is
alerted by radio to the existence of a “wanted flyer” issued by a police
department, certain circumstances may justify the detention of a person in
37
Tex.R.App.P. 66.3(f)(“[W]hether a court of appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far sanctioned such a departure
by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of
supervision.”)
38
Tex.R.App.P. 66.3(e)(“[W]hether the justices of a court of appeals have disagreed on a
material question of law necessary to the court’s decision.”)
10
order to “confirm or dispel” a reasonable belief that the person is, or has
been, engaged in criminal activity. United States v. Hensley, 469 U.S. 221
(1985). In Hensley the Court further ruled however, that the constitutionality
of such a detention does not turn solely on the objective reasonableness of
the patrol officer’s reliance on the existence of the “wanted flyer.” Rather,
the legality of such a detention depends, in this context, on whether “the
police who issued the flyer or bulletin possessed a reasonable suspicion
justifying a stop.” Id., 469 U.S. at 233 (italics in original). In other words,
“[i]f the flyer has been issued in the absence of a reasonable suspicion, then
a stop in the objective reliance upon it violates the Fourth Amendment.” Id.,
469 U.S. at 232-233.
In the present case the Second Court of Appeals has ruled that a stop
in objective reliance upon an electronic “stolen vehicle” report does not
violate the Fourth Amendment even when the law enforcement agency
confirming the existence of the electronic “stolen vehicle” report, at the time
of the stop, is without “reasonable suspicion” and is in possession of
information that conclusively dispels “reasonable suspicion” to support the
stop. The Second Court of Appeals’ decision warrants review by the Court
of Criminal Appeals, as “it has decided an important question of… federal
11
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).
The “importance” of the Second Court of Appeals’ decision in the
present case, moreover, cannot be understated, as it seriously endangers the
liberty of virtually all motorists within the State of Texas. As recently
reported in the Denton Record-Chronicle newspaper, law enforcement
authorities Statewide, including those located in Denton County, Texas,
have deployed “Automated License Plate Reader Systems” which “allow
law enforcement officers to capture images of license plates and
instantaneously compare them with millions of ‘Hot List’ records to identify
vehicles of interest.”39 While a spokesperson for the City of Denton Police
Department (the agency responsible for the error in the present case) assured
readers that “if you’re not doing anything wrong, you don’t have to worry
about it,”40 the facts of the present case demonstrate precisely the contrary.
In the present case Defendant does not dispute that reasonable
suspicion existed to believe the vehicle was in fact “stolen,” at the time that
Officer Steadham entered the “stolen vehicle” report into the TCIC/NCIC
computer systems. What Defendant does contend is that, under the
39
McPhate, New Tech Keeps Vigilant Eye (Denton Record-Chronicle, Oct. 11, 2014),
available online at: http://www.dentonrc.com/local-news/local-news-
headlines/20141011-new-tech-keeps-vigilant-eye.ece (last viewed 7/3/2015).
40
Ibid.
12
“collective knowledge” doctrine, reasonable suspicion no longer existed at
the time Defendant was stopped in the vehicle, and that the stop and
detention of Defendant therefore violated the Fourth Amendment.
As numerous courts have recognized in a variety of circumstances,
under the “collective knowledge” doctrine the fact that a “wanted flyer” (or
“BOLO” bulletin for a stolen vehicle) was supported by reasonable
suspicion at the time it was issued does not end the Fourth Amendment
inquiry.41 Like the validity of an arrest or search without a warrant, the
validity of a warrantless police detention under the Fourth Amendment must
be judged in light of the information available to (or known by) law
enforcement authorities at the time of the detention. Terry v. Ohio, 392 U.S.
1, 21-22 (1968)(Fourth amendment requires that “the facts be judged against
an objective standard: would the facts available to the officer at the moment
of the seizure [justify the detention]?”); Cf., Maryland v. Garrison, 480 U.S.
79, 85 (1987)(constitutional “reasonableness” of warrant’s execution must
be judged in light information available to officers “at the time they acted.”).
In other words, the information to be considered when determining whether
a Fourth Amendment violation has occurred in the present case is not limited
41
See, 2 LaFave & Baum, Search and Seizure: A Treatise on the Fourth Amendment,
§3.5(d), pp. 358-364 (5th ed. 2012)(constitutional “problems arise when [police] records
do not accurately reflect the current situation”); and see also, 4 LaFave & Baum, supra,
§9.5(j), p. 824 (to avoid Fourth Amendment violation “it will not inevitably suffice that a
reasonable suspicion existed at the source at the time the bulletin was issued”).
13
to information known by law enforcement at the time the motor vehicle was
reported stolen on August 18, 2012; and the judicial inquiry is not confined
to the information personally known by the police officer who actually
detained Defendant five months later on February 23, 2013. Thus, when
assessing whether the detention of Defendant was supported by reasonable
suspicion the Court of Appeals was obliged by U. S. Supreme Court
precedent to consider the “collective knowledge” of all law enforcement
authorities at the time the stop occurred, including police knowledge that the
vehicle had been recovered and returned to its owner prior to the stop. Its
failure to do so eviscerates the Fourth Amendment.
2) The issue decided by the Second Court of Appeals in this case involves
an important, recurring question of federal constitutional law that
should be, but has not been, decided by the Texas Court of Criminal
Appeals.
As the Second Court of Appeals itself observed in its decision below,
“[w]hile four States have extended the collective knowledge doctrine to
apply prohibitively, Texas is not one of them.”42 This fact also warrants
review of the Second Court of Appeals’ decision in this case. See,
Tex.R.App.P. 66.3(b)(“[W]hether a court of appeals has decided an
42
Pet.App.-A, at 8; 2015 WL 342209, *3.
14
important question of …federal law that has not been, but should be, settled
by the Court of Criminal Appeals.”)
3) The Second Court of Appeals’ decision below directly conflicts with a
near consensus among decisions rendered by other intermediate State
appellate courts and State courts of last resort, as well as with at least
one U.S. District Court; and the Court of Appeals’ peculiar departure
from that consensus on the issue at hand has been characterized by an
esteemed legal treatise as “bizarre” and “clearly wrong.”
As observed by the Supreme Court of California in a related context
(invalidating arrest due to unconstitutional reliance on recalled warrant), the
principle invoked by Defendant may be succinctly stated as follows:
“The ‘fellow officer’ or ‘collective knowledge’ rule cannot
function solely permissively, to validate conduct otherwise
unwarranted; the rule also operates prohibitively, by imposing
on law enforcement the responsibility to disseminate only
accurate information.”43
In several State Court decisions, and at least one U.S. District Court
decision, the foregoing rule has been specifically applied to constitutionally
43
People v. Ramirez, 668 P.2d 761, 765 (Ca. 1983). As previously stated, in addition to
the decision in Ramirez, this application of the “collective knowledge” doctrine has been
widely followed by numerous courts in a variety of circumstances. See e.g., State v.
Moore, 614 A.2d 1360 (N.J. Super. Ct. App. App. 1992)(invalidating arrest in reliance on
vacated bench warrant); Albo v. State, 477 So. 2d 1071 (Fla. Dist.Ct.App.
1985)(invalidating arrest in reliance on stale computer data erroneously stating
defendant’s driver’s license continued to be suspended); and see also id., 477 So.2d at
1073 n. 2 (listing “unanimous authority on this point”).
15
invalidate detentions relying on stale information erroneously reporting that
a motor vehicle continued to be “stolen” when the vehicle had, in fact, been
previously recovered and returned to its rightful owner, as in the present
case. See, Carter v. State, 305 A.2d 856 (Md. Ct. Spec. App. 1973); People
v. McElhaney, 552 N.Y.S.2d 825 (N.Y.Sup.Ct 1990); State v. Mance, 918
P.2d 527 (Wash. Ct. App. 1996); and, United States v. Anderson, No. 4:07-
CR-0023, 2007 WL 4732033 (N.D. Ohio June 21, 2007)(unpublished). No
Texas authorities appear to have addressed the constitutional question.
In the present case it is undisputed that, at the time Defendant’s
vehicle was stopped, information in possession of law enforcement
authorities conclusively established that five months earlier the vehicle in
question had been returned to its rightful owner and was therefore no longer
“stolen.” The Court of Appeals’ in the present case nonetheless concluded
that the police error after recovery of the vehicle, and the subsequent five-
month delay in correcting police records to show that the “stolen” vehicle
had been recovered, is constitutionally irrelevant because: 1) the police
simply forgot to cancel their teletype in the N.C.I.C. computer; and 2) these
errors were unknown to the officer who relied upon the erroneous record
when initiating the stop of Defendant. This very mode of legal analysis has
been properly characterized as not only “clearly wrong,” but “bizarre” by
16
one esteemed legal treatise. See, 2 LaFave & Baum, Search and Seizure: A
Treatise on the Fourth Amendment, §3.5(d), pp. 363-364 (5th ed. 2012). In
this regard, the Second Court of Appeals truly “has so far departed from the
accepted and usual course of judicial proceedings, [and has] so far
sanctioned such a departure by a lower court, as to call for an exercise of the
Court of Criminal Appeals’ power of supervision,” Tex.R.App.P. 66.3(f).
4) The Panel of the Second Court of Appeals which rendered the decision
in this case was divided, resulting in the issuance of a dissenting
opinion.
In her dissenting opinion Justice Dauphinot has candidly expressed
her inability to “understand the majority’s hypothesis that in Texas, imputed
knowledge may only expand the authority of the prosecution but may not
protect the constitutional rights of the accused.”44 The Petitioner, and no
doubt many others, shares Justice Dauphinot’s view. Yet the majority’s
decision is not merely a “hypothesis.” Rather, it constitutes precedent for a
disturbing new legal maxim which holds that in Texas law it is now “Heads:
suspicionless police detention wins; Tails: individual privacy loses.” The
issue presented by the instant petition involves “a material question of law
necessary to” the majority’s decision below, and it is one on which the
44
Pet.App.-B, at 1 (Dauphinot, J., dissenting).
17
Justices below disagreed. This disagreement further warrants an exercise of
the Court’s power of discretionary review. See, Tex.R.App.P.
66.3(e)(“[W]hether the justices of a court of appeals have disagreed on a
material question of law necessary to the court’s decision.”)
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, this Petition for
Discretionary Review should be granted.
Respectfully submitted,
/s/Richard Gladden
Texas Bar No. 07991330
1200 West University, Suite 100
Denton, Texas 76201
940/ 323-9307 (voice)
940/539-0093 (fax)
richscot1@hotmail.com (email)
Attorney for Petitioner
CERTIFICATE OF COMPLIANCE
This is to certify, pursuant to Rule 9.4(i)(3) of the Texas Rules of
Appellate Procedure, that this petition was computer-generated; that it
contains less than 3,343 words (including the items excepted by
Tex.R.App.P. 9.4(i)(1)); and that it therefore complies with the 4,500 word
limitation stated in Rule 9.4(i)(2)(D) of the Texas Rules of Appellate
Procedure.
/s/Richard Gladden
18
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing brief
was served by hand delivery on the Attorneys of Record for the State of
Texas, Denton County Criminal District Attorney Paul Johnson, at his
office located at 1450 East McKinney, Denton, Texas 76201, on this 6th day
of July, 2014; by U.S. mail on the State Prosecuting Attorney, Lisa C.
McMinn, directed to her office mailing address, to wit: P.O. Box P.O. Box
13046, Capitol Station, Austin, Texas 78711, on this 6th day of July, 2015;
and on both of the foregoing counsel, on the same date, using the electronic
filing system operated by TexFile; all in accordance with Rules 9.5 and
68.11 of the Texas Rules of Appellate Procedure.
/s/Richard Gladden
19
PETITION APPENDIX “A”
TO
PETITION FOR DISCRETIONARY
REVIEW
Majority Opinion and Judgment, O’Bryan v. State,
No. 02-14-00313-CR, 2015 WL 3422093
(Tex.App. Fort Worth, May 28, 2015)
(not yet published)
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00313-CR
ROBERT O'BRYAN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2013-08057-A
----------
OPINION
----------
I. Introduction
In two issues, Appellant Robert O’Bryan appeals the denial of his motion to
suppress, arguing that his stop and detention was without reasonable suspicion
and therefore violated the Fourth Amendment to the U.S. Constitution. We
affirm.
II. Background
The facts of this case are undisputed. On February 22, 2013, Northlake
Police Sergeant Dwight Thornton ran a routine records check on a green four-
door Pontiac through the National Crime Information Center (NCIC) and the
Texas Crime Information Center (TCIC); a report from Denton Police Department
(Denton P.D.) indicated that the vehicle was reported stolen. After receiving the
report, Sergeant Thornton contacted Denton County Sheriff Department Dispatch
to verify the information. Dispatch confirmed that the car was stolen, so
Sergeant Thornton requested additional units. Two other units arrived, and the
officers performed a felony stop on the vehicle. O’Bryan was the only person in
the car.
After he was detained, Sergeant Thornton reported the VIN number of the
vehicle to Denton County Dispatch, who then matched it with their records and
confirmed with Denton P.D. Dispatch that the vehicle was stolen. While waiting
on the confirmation, Sergeant Thornton began investigating the unauthorized use
of a motor vehicle offense. Upon searching the vehicle, he found a pill bottle with
multiple pills inside and no label on the outside. Upon further inspection,
Sergeant Thornton discovered the pills to be prescription drugs for which
O’Bryan did not have a valid prescription. O’Bryan was arrested and the car was
impounded.
As it turned out, the car was not stolen. Although O’Bryan’s father,
Charles O’Bryan, reported the vehicle stolen in August 2012, it was recovered
2
one month later, in September 2012. O’Bryan filed a motion to suppress all of
the evidence, arguing, in essence, that since the stolen vehicle information
Sergeant Thornton relied upon was erroneous, the stop was without reasonable
suspicion, thereby violating the Fourth Amendment.
At the suppression hearing, Sergeant Thornton testified to the facts leading
up to O’Bryan’s arrest, and Denton P.D. Communications Officer Patricia
Killebrew testified about her efforts to confirm the status of the vehicle as stolen.
Officer Killebrew testified that on February 22, she received a dispatch
requesting confirmation of the stolen vehicle. She ran the plate number through
“the system,” and it confirmed that the car was stolen. She then pulled the actual
paper report, which further verified the car was stolen. The following day, Officer
Killebrew learned from Sergeant Frank Padgett that the information she had
obtained and relayed regarding the stolen vehicle was erroneous.1
Officer Killebrew also provided testimony about departmental policies
regarding the input and removal of data into NCIC. She stated that when
Dispatch confirms a vehicle as stolen and the officer recovers it in the field, like in
this case, then Dispatch removes the vehicle from NCIC at the time of
1
According to the record, her conversation with Sergeant Padgett was
prompted by a telephone inquiry the Sergeant had received from O’Bryan’s
sister, Lori Reeves, who informed Sergeant Padgett that although the impounded
vehicle had at one time been reported stolen, it had since been recovered.
Sergeant Padgett then followed up on this conversation with Officer Killebrew.
3
confirmation.2 In the alternative, if a vehicle is recovered, but there has been no
call for confirmation, then the officer creates a supplemental report that is
forwarded to Dispatch, and Dispatch removes the vehicle from NCIC upon
receipt of the report. In this case, although an officer prepared a supplemental
report when the car was recovered, the NCIC record was not updated.3
Officer Killebrew testified that the mistake in not removing this vehicle from
NCIC could have occurred in one of two ways. Either the officer never forwarded
the supplemental report to Dispatch, or he did deliver the supplemental report
and Dispatch failed to act on it. Regardless of who made the mistake, Officer
Killebrew confirmed that the error occurred within the Denton P.D.
The trial court denied O’Bryan’s motion to suppress and entered findings
of fact and conclusions of law.
III. Suppression
O’Bryan does not dispute that reasonable suspicion existed at the time the
officer entered the stolen vehicle report into NCIC. However, O’Bryan argues
that applying the collective knowledge doctrine, reasonable suspicion ceased to
exist once the vehicle was recovered. Therefore, O’Bryan argues, because
2
Officer Killebrew stated that she removed the vehicle from NCIC
immediately after she received Sergeant Thornton’s call for confirmation.
3
Nor was the supplemental report included among the documents available
to Officer Killebrew—on the computer or in paper form—in the file she reviewed
to confirm the stolen vehicle.
4
reasonable suspicion no longer existed when Sergeant Thornton pulled him over,
O’Bryan’s Fourth Amendment rights were violated.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
When the trial court makes explicit fact-findings, we determine whether the
evidence, when viewed in the light most favorable to the trial court’s ruling,
supports those fact-findings. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim.
App. 2006). We then review the trial court’s legal ruling de novo unless its
explicit fact-findings that are supported by the record are also dispositive of the
legal ruling. Id. at 818. We must uphold the trial court’s ruling if it is supported
by the record and correct under any theory of law applicable to the case, even if
the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d
736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404
(Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
5
B. Applicable Law
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an
alleged Fourth Amendment violation, the defendant bears the initial burden of
producing evidence that rebuts the presumption of proper police conduct.
Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.
Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this
burden by establishing that a search or seizure occurred without a warrant.
Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the
burden of proof shifts to the State to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable. Id. at 672–73; Torres v.
State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable
suspicion exists when, based on the totality of the circumstances, the officer has
6
specific, articulable facts that when combined with rational inferences from those
facts, would lead him to reasonably conclude that a particular person is, has
been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This
is an objective standard that disregards any subjective intent of the officer
making the stop and looks solely to whether an objective basis for the stop
exists. Id.
C. Analysis
O’Bryan asserts that when assessing whether the detention of O’Bryan
was supported by reasonable suspicion we must consider the “collective
knowledge” of all law enforcement authorities at the time the stop occurred,
including police knowledge that the vehicle had been recovered and returned to
its owner prior to the stop. As will be discussed below, theoretically the collective
knowledge doctrine could be applied either permissively or prohibitively. In this
case, O’Bryan seeks a prohibitive application of the doctrine.
The collective knowledge doctrine, or the fellow officer rule, is the “principle
that an investigative stop or an arrest is valid even if the law-enforcement officer
lacks personal knowledge to establish reasonable suspicion or probable cause[,]
as long as the officer is acting on the knowledge of another officer and the
collective knowledge of the law-enforcement office.” Black’s Law Dictionary 735
(10th ed. 2014). This doctrine was first discussed by the United States Supreme
Court in 1971 in the context of probable cause to support an arrest, see Whiteley
v. Warden, 401 U.S. 560, 91 S. Ct. 1031 (1971), and was extended by the Court
7
in 1985 to encompass reasonable suspicion to detain a person briefly in an
attempt to obtain further information, see U.S. v. Hensley, 469 U.S. 221, 105 S.
Ct. 675 (1985). Both Whiteley and Hensley apply the collective knowledge
doctrine in a permissive manner. The Texas Court of Criminal Appeals has also
applied this doctrine, but only permissively as well. See Hoag v. State, 728
S.W.2d 375, 380 (Tex. Crim. App. 1987); Woodward v. State, 668 S.W.2d 337,
344 (Tex. Crim. App. 1982) (op. on reh’g).
O’Bryan points out that while the collective knowledge doctrine has been
applied only permissively in Texas, other jurisdictions also apply the doctrine
prohibitively:
The “fellow officer” or “collective knowledge” rule cannot
function solely permissively, to validate conduct otherwise
unwarranted; the rule also operates prohibitively, by imposing on law
enforcement the responsibility to disseminate only accurate
information.
People v. Ramirez, 668 P.2d 761, 765 (Cal. 1986). In urging this court to permit
a prohibitive application of the doctrine in this case, O’Bryan essentially argues
that if collective knowledge can be used to form a basis to find reasonable
suspicion, then collective knowledge can also be used to negate reasonable
suspicion.
While four states4 have extended the collective knowledge doctrine to
apply prohibitively, Texas is not one of them.
4
California, Maryland, New York, and Washington
8
Whether as a repository for collective knowledge or as an historically
trustworthy source of information, NCIC—and its records—has received
widespread acceptance as providing a sufficient basis for both probable cause
and reasonable suspicion. See Delk v. State, 855 S.W.2d 700, 711 (Tex. Crim.
App.), cert. denied, 510 U.S. 982 (1993) (holding that information obtained from
the NCIC system provides an investigating officer with reasonable suspicion to
detain a driver and conduct further investigation); Stevens v. State, 667 S.W.2d
534, 538 (Tex. Crim. App. 1984) (holding that the NCIC stolen-vehicle return
provided independent probable cause to arrest appellant for theft of the
automobile); see also Williams v. State, No. 14-08-00268-CR, 2009 WL
3643513, at *4 (Tex. App.—Houston [14th Dist.] Nov. 5, 2009, pet. ref’d) (mem.
op., not designated for publication) (holding that NCIC provided reasonable
suspicion to stop appellant who was driving a vehicle that was reported stolen);
Nevels v. State, No. 14-13-00497-CR, 2004 WL 769804, at *2 (Tex. App.—
Houston [14th Dist.] Apr. 13, 2004, no pet.) (mem. op., not designated for
publication) (holding that an NCIC report that a car was stolen is sufficient to
support probable cause); Nunnally v. State, No. 11-03-00237-CR, 2004 WL
292051, at *2 (Tex. App.—Eastland Feb. 12, 2004, pet. ref’d) (opinion, not
designated for publication) (noting that the officer had probable cause to arrest
the appellant based on computer information he received); Givens v. State, 949
S.W.2d 449, 452 (Tex. App.—Fort Worth 1997, pet. ref’d) (recognizing that the
officer’s reliance on NCIC provided probable cause for the arrest).
9
And while no Texas courts have directly addressed the prohibitive
application of the collective knowledge doctrine when considering reasonable
suspicion or probable cause, in considering NCIC information as a basis for
probable cause and reasonable suspicion, they have addressed the possibility of
error and its effect on these burdens. See Brown v. State, 986 S.W.2d 50, 54
(Tex. App.—Dallas 1999, no pet.) (holding that “it is not necessary for the NCIC
database of stolen vehicles to be accurate on every occasion for an NCIC hit to
establish probable cause,” and an officer may rely on the information even if it is
later proved to be erroneous); see also Thornton v. State, No. 10-12-00431-CR,
2014 WL 813745, at *2 (Tex. App.—Waco Feb. 27, 2014, no pet.) (mem. op., not
designated for publication) (holding actual ownership of a vehicle was not
relevant to the detention of the appellant because the officer had reasonable
suspicion to detain appellant based on NCIC information, even if it was later
proven to be incorrect), Cardiel v. State, No. 03-11-00220-CR, 2012 WL
2077908, at *1 n.1 (Tex. App.—Austin, June 7, 2012, no pet.) (mem. op., not
designated for publication) (explaining that even though appellant’s stop was
based on a stolen vehicle report that turned out to be incorrect, the fact the report
was mistaken did not render the stop or arrest invalid); Mount v. State, 217
S.W.3d 716, 728 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (op. on reh’g)
(“An investigatory detention or an arrest is not invalid merely because an officer
relies upon reasonably trustworthy information that later proves to be
10
erroneous.”); Givens, 949 S.W.2d at 451 (holding that extrinsic proof of NCIC
accuracy is not required to overcome a motion to suppress).
In Brown v. State, the Fifth Court of Appeals states that
[I]t is well established an arrest is not invalid merely because an
officer relies on reasonably trustworthy information which later
proves to be erroneous. Therefore, it is not necessary for the NCIC
database of stolen vehicles to be accurate on every occasion for an
NCIC hit to establish probable cause. On the basis of the current
record, we have no reason to question whether stolen vehicle
information obtained from the NCIC is reasonably trustworthy.
Accordingly, we conclude the NCIC information available to the
officers here established probable cause for the warrantless arrest.
986 S.W.2d at 53–54 (internal citations omitted).
For the reasons stated above, we hold that the NCIC report was sufficient
to establish reasonable suspicion and therefore conclude that O’Bryan’s
constitutional rights were not violated by his warrantless arrest. We overrule his
first issue.5
IV. Conclusion
Having overruled O’Bryan’s dispositive issue, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
5
Having overruled O’Bryan’s first issue, we need not reach his second
issue. See Tex. R. App. P. 47.1.
11
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
DAUPHINOT, J., filed a dissenting opinion.
PUBLISH
DELIVERED: May 28, 2015
12
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00313-CR
Robert O'Bryan § From County Criminal Court No. 1
§ of Denton County (CR-2013-08057-
A)
§
v. § May 28, 2015
§ Opinion by Justice Sudderth
§ Dissent by Justice Dauphinot
The State of Texas § (p)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Bonnie Sudderth________________
Justice Bonnie Sudderth
PETITION APPENDIX “B”
TO
PETITION FOR DISCRETIONARY
REVIEW
Dissenting Opinion (Per Dauphinot, J.)
O’Bryan v. State, No. 02-14-00313-CR, 2015 WL
3422093 (Tex.App. Fort Worth, May 28, 2015)
(not yet published)
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00313-CR
ROBERT O’BRYAN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2013-08057-A
----------
DISSENTING OPINION
----------
Respectfully, I cannot join the thoughtful majority. I do not understand the
majority’s hypothesis that in Texas, imputed knowledge may only expand the
authority of the prosecution but may not protect the constitutional rights of the
accused.
The obligations stemming from imputed knowledge within the prosecution
team have long been recognized in Texas courts. In 1989, in an early
exoneration case, the Texas Court of Criminal Appeals concluded that Randall
Dale Adams had been convicted of capital murder on perjured testimony. 1 The
Texas Court of Criminal Appeals explained,
The issue of Miller’s perjurious testimony regarding her
identification of the applicant involves both the suppression of
evidence favorable to the accused and the State’s knowing use of
false testimony. During the applicant’s trial, after the three rebuttal
witnesses had testified and Miller had identified the applicant, the
State closed. The applicant’s attorney then belatedly requested a
hearing outside the presence of the jury in order to determine
whether Miller’s identification testimony had been tainted by an
improper photo spread or lineup. The trial judge observed that the
request was untimely because Miller had already identified the
applicant. Nevertheless, he permitted the hearing to allow the
applicant to perfect a bill of exception. It was during this hearing that
Miller perjured herself by testifying falsely that she had identified the
applicant in a lineup and that no one had influenced her in her
identification. After the hearing the trial judge commented that he
considered the issue of a tainted identification to have been waived
by the defense, but emphasized that the defense had the right to go
into it in front of the jury. In this regard it must be remembered that
at this time the applicant had no knowledge of the truth about the
identification or the prior inconsistent statement.
Following his comments to counsel, the judge concluded[] that
Miller’s identification testimony “was not influenced either by the
witness having seen photographs of the defendant or by the witness
having viewed the defendant in a lineup of people conducted by law
enforcement authorities.” He further stated: “The Court finds there
is no taint, that the identification of the witnesses in court is based
solely on the witnesses having viewed the defendant at the time and
place where the offense was committed as alleged in the
indictment.” He also comment[ed] that irrespective of his factual
findings a waiver of a defect in the identification had occurred.
Mulder testified that he did not know Miller had identified
someone other than the appellant in the lineup, nor did he know that
1
Ex parte Adams, 768 S.W.2d 281, 290–91 (Tex. Crim. App. 1989).
2
the officer in charge of the lineup told her who she should have
identified. However, this is insufficient to remove the taint of the
prosecution’s knowing use of perjured testimony. As previously
noted, the United States Supreme Court has expressly recognized
that when confronted with perjurious testimony the prosecutor has a
duty to correct it. Further, whether the prosecutor had actual
knowledge of the falsity of the testimony is irrelevant. If the
prosecutor should have known is sufficient. Thus, the Supreme
Court has endorsed the imputation of knowledge, at least from one
prosecutor to another. However, the extent of this imputation of
knowledge has been expanded. In Williams v. Griswald, the court of
appeals stated: “It is of no consequence that the facts pointed to
may support only knowledge of the police because such knowledge
will be imputed to state prosecutors.” In United States v. Antone, the
court of appeals observed that it has “declined to draw a distinction
between different agencies under the same government, focusing
instead upon the ‘prosecution team’ which includes both
investigative and prosecutorial personnel.”
The Dallas police officer that “helped” Miller was by her own
admission in charge of the lineup. Consequently, as a part of the
investigating team his knowledge of Miller’s lack of identification at
the lineup and his assistance to her is imputed to Mulder.
Consequently, when Miller testified that she had identified the
applicant in a lineup Mulder had an obligation to correct the perjured
testimony.2
The Adams court “declined to draw a distinction between different agencies
under the same government, focusing instead upon the ‘prosecution team’ which
includes both investigative and prosecutorial personnel.”3
2
Id. at 291–92 (citations omitted).
3
Id. at 292; see also Ex parte Castellano, 863 S.W.2d 476, 484–85 (Tex.
Crim. App. 1993) (holding that peace officer who was not assigned to an arson
case but who took it upon himself to assist and engage in perjury for private
reasons was nevertheless acting under color of law and part of the prosecutorial
team).
3
The imputed knowledge rule is still alive and well. In 2014, the Texas
Court of Criminal Appeals stated,
In Moulton, the Supreme Court indicated that a Massiah
violation occurs only if the State “knowingly circumvented” the right
to counsel. The court of appeals’s opinion suggests that a knowing
circumvention did not occur because Midland law enforcement was
unaware that appellant had counsel. Appellant’s position is that the
knowledge of Ector County law enforcement should be imputed to
Midland County law enforcement.
Appellant has the better of the argument. In Michigan v.
Jackson, the Supreme Court held that the State is responsible, in
the Sixth Amendment context, for the knowledge of all of its actors:
Sixth Amendment principles require that we impute the
State’s knowledge from one state actor to another. For
the Sixth Amendment concerns the confrontation
between the State and the individual. One set of state
actors (the police) may not claim ignorance of
defendants’ unequivocal request for counsel to another
state actor (the court).
In so concluding, the Supreme Court cited and quoted from
Moulton, a Massiah case. It is true that, in Montejo v. Louisiana, the
Supreme Court overruled Jackson insofar as it imposed a
prophylactic rule forbidding interrogation once the accused has
requested counsel. But the Montejo decision expressly stated that it
was not concerned with the substantive scope of the Sixth
Amendment right to counsel, and in so saying it cited both Moulton
and Massiah. We do not agree with the court of appeals that the
Supreme Court’s decision to overrule Jackson constituted an
abandonment of the rule of imputing knowledge to the State.4
The majority is correct that, generally, the police may detain a person
based on an entry in NCIC. But in the case now before this court, the Denton
4
Rubalcado v. State, 424 S.W.3d 560, 573–74 (Tex. Crim. App. 2014)
(citations omitted).
4
police department was aware that the car was not stolen and that there should
be no NCIC entry reporting that it was stolen. No one knows why the stolen
vehicle report was not properly withdrawn. But the knowledge of the Denton
police department is imputed to Northlake police.5 Consequently, police had no
reasonable suspicion to support their original detention of Appellant.
The majority appears to suggest a good faith exception to the warrant
requirement when the police rely on NCIC. But Texas recognizes only the good
faith exception found in the Texas Code of Criminal Procedure:
It is an exception to the provisions of Subsection (a) of this Article
that the evidence was obtained by a law enforcement officer acting
in objective good faith reliance upon a warrant issued by a neutral
magistrate based on probable cause.6
In the case now before this court, there is no warrant, and there is no
requirement that a neutral magistrate screen the information before it can be
entered on NCIC. Under the facts of this case, good faith does not justify the
unlawful detention of Appellant, nor does the NCIC entry that should have been
withdrawn because the Denton police candidly explained that they knew the car
had not been stolen, that it had been reported to them as stolen in error, and that
the entry should have been withdrawn. The original detention of Appellant was
unlawful.
5
See id. at 574.
6
Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
5
For these reasons, I must respectfully dissent.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 28, 2015
6