Love v. State

CONCURRING OPINION

JACK CARTER, Justice.

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Nevertheless, even a temporary detention of this kind is not permissible unless the circumstances on which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997) (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991)).

To justify an investigative detention, an officer must have reasonable suspicion, based on specific, articulable facts that, in light of the officer’s experience and general knowledge, lead the officer to a reasonable conclusion that criminal activity is underway and that the detained person is connected with the activity. Perez v. State, 818 S.W.2d 512, 516 (Tex.App.-Houston [1st Dist.] 1991, no pet.).

The line drawn between reasonable and unreasonable detention has evolved. In Davis, the Texas Court of Criminal Appeals found that the facts did not support a conclusion that the defendant was engaged in or about to be engaged in criminal activity even though the evidence showed alleged inconsistent statements by occupants of the vehicle, the passenger had a drug conviction, the vehicle was not registered in the driver’s name, and the driver did not appear to the officer to be on a business trip. After the defendant refused to consent, the drug dog was summoned and the vehicle, but not the driver, was detained. The Texas Court of Criminal Appeals held that the court of appeals erred in determining that the detention and search were justified. Davis, 947 S.W.2d at 241-42.

Very recently, the Texas Court of Criminal Appeals found a twenty-five-minute detention and ensuing search were reasonable after the defendant refused to consent to a search and a drug dog was then obtained. The court found facts supporting that detention included two Florida “drug convoy” cars, diversionary tactics by one of the drivers, overdue rental car, and inconsistent stories. Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.2007).

Based on the most recent opinions from the Texas Court of Criminal Appeals, I agree that the facts here are sufficient to justify a finding that the detention was permissible.

The question here is what articulable facts support an officer’s reasonable suspicion and conclusion that Love was involved in or connected to criminal conduct?

First, we must remember that this detention occurred after Love specifically invoked his Fourth Amendment right against an unreasonable search by refusing to consent to the search.

The majority opinion cites seven reasons why the officer’s suspicions were aroused, seeming to give equal credence to each. I think we should acknowledge that some of these facts lend considerably less support than others that Love was involved in unusual activity related to crime.

1. Highway 59 is a major drug artery. I would dare to say that a comprehensive study of the appellate opinions in Texas would demonstrate that every interstate or United States highway in Texas is considered a major drug corridor. I find this fact lends little, if any, credence to a conclusion that a particular individual who is traveling on a major highway is in possession of drugs. It is also true that all persons who possess drugs on a highway are driving or traveling in a vehicle, but I doubt that anyone would seriously think that merely because one is driving a vehicle he or she is to be suspected of possessing drugs. Likewise, I do not think that merely driving a vehicle on a major highway, which is done by thousands of law-abiding people every day, contributes to a reasonable suspicion that the driver is a drug courier.

2. More nervous than normal. Almost every person who sees flashing lights in the rearview mirror and realizes that a police officer is about to detain him or her becomes somewhat nervous. How nervous do you have to be to exceed that normally expected? Some people by nature are more nervous than others and may begin crying when receiving a speeding ticket. Once again, this appears to be a fact that has little, if any, relevance to a reasonable conclusion that one is involved in crime (generally drug possession). In a recent case, the Texas Court of Criminal Appeals labeled this purported nervousness as “lagniappe — icing-on-the-cake—to the determination of reasonable suspicion.” Madden, 242 S.W.3d at 517.

3. and 4. Information about his destination^ — failure to drive toward Shreveport. The officer testified that Love told him he was driving to Shreveport, Louisiana, and then later stated he was going to Monroe. If he intended to drive to Shreveport, he had driven past the interstate highway leading to Shreveport. This could indicate to a police officer that Love was attempting to deceive the officer.

5. Driving a rental vehicle. The vehicle was properly rented to Love. Apparently, it is common for those delivering drugs to use a rented vehicle. However, this too, standing alone, would be a rather weak indicator of criminal conduct.

6. Volume of luggage. The officer thought the amount of luggage was excessive for a two-day trip. Again, this is a weak connection to possible criminal activity. Speaking from personal experience, I find that every weekend trip my wife and I take involves an excessive amount of luggage.

7. Love had two felony drug convictions. When asked by the officer, Love admitted only to a conviction for a minor drug offense. This fact carries significant weight when we are considering what a police officer would be reasonably suspicious of based on his or her experience and general knowledge. While prior felony convictions are not admissible evidence to prove a defendant is guilty of the present offense, it cannot be denied that, when a police officer encounters a person in these circumstances who has previously been found guilty twice of a drug offense, it is not unreasonable for the officer to have a suspicion of drug possession. Additionally, here, Love attempted to deceive the officer and minimize his prior drug charges. I believe that the facts that Love (a) was driving a rental vehicle, (b) gave inconsistent information about his destination, and (c) had failed to take the highway leading him to that destination become more relevant when juxtaposed with the fact that he had two prior drug-related convictions. When these four facts are combined, I think it is reasonable for an officer to have a suspicion, based on objective facts, that Love was involved in criminal activity. I do not believe that the facts that he (1) was traveling on Highway 59, (2) was nervous, and (3) had several items of luggage add any strength to the basis for such a reasonable conclusion.

I concur with the opinion of the majority in affirming the judgment of the trial court.