Ford, Matthew W.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1946-03

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MATTHEW FORD, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

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   Keller, P.J., filed a dissenting opinion in which WOMACK and COCHRAN, JJ., joined.

DISSENTING OPINION

This case presents a difficult question: how specific must an officer's testimony about his observations be in order to support a finding of reasonable suspicion? At issue here is an officer's opinion, based on his observations, that the accused was "following too close." I would hold that the officer's opinion constituted prima facie evidence sufficient to support a finding of reasonable suspicion, but the defendant or the trial court could have requested greater specificity, and if greater specificity were not forthcoming, then the evidence would have been subject to suppression. Because greater specificity was not requested in this case, I would affirm the trial court's judgment.

In Terry v. Ohio, the fountainhead case on the "reasonable suspicion" standard applicable to "stops," the Supreme Court said that a police officer had reasonable suspicion if he could "point to specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant" the intrusion in question. ⁽¹⁾ The requirement of "specific and articulable facts" serves the function of subjecting the police officer's actions to meaningful judicial review:

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. ⁽²⁾

That meaningful judicial review carries over to the appellate context, which requires a de novo review of the circumstances relied upon to support a trial court's finding that reasonable suspicion did indeed exist. ⁽³⁾ But it is also true that appellate courts must give "due weight" to the "factual inferences drawn by resident judges and local law enforcement officers." ⁽⁴⁾ Texas recognized these principles in Guzman v. State, where we explained that, in the search and seizure context, "almost total deference" should be given to questions of historical fact, and application-of-law-to-fact questions turning on credibility and demeanor, while other application-of-law-to-fact questions are reviewed de novo. ⁽⁵⁾

Whether the bare testimony "he was following too close" is sufficient to support a trial court's finding of reasonable suspicion has not been squarely addressed in any jurisdiction. There are a handful of published appellate opinions in which "following too close" or "tailgating" was at issue, and in each of these cases, the appellate court found the observed conduct to be sufficient to show reasonable suspicion or probable cause. ⁽⁶⁾ In two of these cases, the court recited a specific fact testified to by the officers in support of their conclusions: following less than two seconds behind another vehicle. ⁽⁷⁾ In the other cases the appellate court simply remarked that the officer had validly pulled over the accused on the basis of an anti-tailgating traffic law. ⁽⁸⁾ None of these cases addressed whether the testimony in question was sufficiently specific. ⁽⁹⁾

The testimony at issue is an opinion based on a witness' perception. As such, it implicates the concerns underlying Texas Rule of Evidence 701, which provides that the opinion of a witness is admissible if it is "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." ⁽¹⁰⁾ Our Rule 701 is based on its federal counterpart, which was adopted in part due to the "practical impossibility" of determining what is a "fact," as opposed to mere opinion, "demonstrated by a century of litigation." ⁽¹¹⁾ The advisory committee for the federal rules cited McCormick's treatise for the proposition that "a standard for permitting opinions and conclusions has proved too elusive and too unadaptable for purposes of satisfactory judicial administration." ⁽¹²⁾ As a result of the immense difficulty in sorting "fact" from "opinion," a recent edition of McCormick's treatise has concluded that trial courts should be "accorded a wide range of discretion at least in classifying evidence as 'fact' or 'opinion' and probably in admitting evidence even where found to constitute opinion." ⁽¹³⁾

We have recognized the role of Rule 701 in permitting the admission of opinions, where the opinion constitutes a "shorthand rendition of the facts." ⁽¹⁴⁾ These types of opinions, sometimes also called "collective facts," are permitted because a "catalogue of particulars may be inadequate to convey important ideas that lay witnesses are competent to express." ⁽¹⁵⁾ The opinion "may sum up and give the full flavor and character of the particulars (to which the witness also testifies) or may substitute for a catalogue the witness may be unable to provide." ⁽¹⁶⁾ "Prototypical" examples of this type of opinion include those relating to "the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light and darkness, sound, size, weight, [and] distance." ⁽¹⁷⁾ Other common examples include speed ⁽¹⁸⁾ and intoxication. ⁽¹⁹⁾

Authority considering the intersection of Rule 701 with search and seizure law appears to be sparse, but one interesting case was decided in Minnesota. In State v. Nolting, a law enforcement agent requested a warrant to search a particular piece of mail based in part on his declaration that "I was advised that the parcel was found [in the post office by a mail clerk], who has discovered numerous parcels of this type containing controlled substances." ⁽²⁰⁾ Although the defendant argued that the clerk's statement was conclusory and should be given no weight, the Supreme Court of Minnesota found it to be a legitimate opinion of the type covered by Federal Rule of Evidence 701. ⁽²¹⁾ The court remarked:

The conclusion drawn by the mail clerk is a simple one, drawn directly from his personal sensory experience. It is the kind of conclusion that courts and juries may legitimately credit in resolving factual questions.

* * *

If the affidavit had set forth the respects in which the parcel resembled the earlier packages, the magistrate might have been more certain of the clerk's conclusion. But we think detailing the basis of this conclusion, while desirable, goes to its probative value to establish probable cause and not to whether the conclusion can be considered by a magistrate. ⁽²²⁾

The fact that a Rule 701 type of opinion can be considered in determining a search and seizure question does not necessarily mean that the opinion is sufficient to support the trial court's resolution of the issue. But a key to how to review this type of evidence may be found in one of the reasons that has been given for liberally allowing its admission: abuses can be effectively checked by cross-examination. The federal rules advisory committee explained:

The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. ⁽²³⁾

The officer's opinion that appellant was "following too close" is a broad factual assertion based on the officer's observations. Substantiating that factual assertion with more detail - the number of car lengths separating appellant's vehicle from the one being followed, or the number of seconds between the time each vehicle passed a fixed point, for example - would be preferable, but the officer's unchallenged assertion of what he observed was a sufficient basis for the trial court to rule as it did. The trial court could reasonably infer from the officer's testimony that he did indeed observe appellant following too closely. The information imparted was enough to convey to the trial court a factual basis for believing that appellant may have broken the law.

Cross-examination might have shown otherwise. If, upon cross-examination, the officer could offer no basis whatsoever for his conclusion that appellant was following too closely, the trial court might then have been required to find that the officer's "following too close" conclusion did not constitute specific, articulable facts to support a stop. Or perhaps cross-examination would have revealed that the officer's definition of "following too close" was not in fact a description of conduct proscribed by the statute in question. On the other hand, cross-examination might have elicited details further supporting the officer's conclusion. The trial court could have chosen to disregard the officer's testimony due to its generality, ⁽²⁴⁾ but it was also within the trial court's discretion to credit the testimony, and under the circumstances present here, I believe the testimony was sufficient to support the trial court's finding of reasonable suspicion.

I respectfully dissent.

Keller, Presiding Judge

Date filed: March 9, 2005

Publish

1. 392 U.S. 1, 21 (1968).

2. Id.

3. United States v. Arvizu, 534 U.S. 266, 275 (2002).

4. Id. at 273-274.

5. 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

6. United States v. Perez, 200 F.3d 576, 577-579 (8^th Cir. 2000); United States v. Lyton, 161 F.3d 1168, 1169-1170 (8^th Cir. 1998); United States v. Beck, 140 F.3d 1129, 1132-1134 (8^th Cir. 1998); United States v. Rivera, 867 F.2d 1261, 1262-1264 (10^th Cir. 1989); Peters v. State, 859 So. 2d 451, 452-454 (Ala. Crim. App. 2003); State v. Cohen, 549 So. 2d 884, 886 (La. App. 1989), cert. denied, 559 So. 2d 135 (La. 1990); State v. McGinnis, 8 Neb. Ct. App. 1014, 1016-1020, 608 N.W.2d 605, 608, 610 (2000).

7. Perez, 200 F.3d at 578; McGinnis, 608 N.W.2d at 608.

8. Lyton, 161 F.3d at 1169-1170; Beck, 140 F.3d at 1132-1134; Rivera, 867 F.2d at 1262-1263; Peters, 859 So. 2d at 452; see also Cohen, 549 So. 2d at 886 (rejecting challenge against constitutionality of anti-tailgating statute). The discussion in Peters strongly suggests that the officer did not give more specific testimony, but the court's remark about the sufficiency of this testimony to support the stop was dicta. See Peters, 859 So. 2d at 452-454.

9. See previously cited cases.

10. Tex. R. Evid. 701.

11. Advisory Committee Notes, Fed. R. Evid. 701.

12. Id.

13. McCormick on Evidence, 5^th ed., §11, p. 46 (1999).

14. Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001); Fairow v. State, 943 S.W.2d 895, 900 (Tex. Crim. App. 1997).

15. Mueller & Kirkpatrick, Federal Evidence, 2^nd ed., §346 (1994).

16. Id.

17. Advisory Committee Notes, 2000 Amendments to Rule 701 (quoting Asplundh Mfg. Div. V. Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3^rd Cir. 1995))(bracketed material and emphasis added).

18. Mueller & Kirkpatrick, supra; Ho v. United States, 331 F.2d 144 (9^th Cir. 1964).

19. Mueller & Kirkpatrick, supra; United States v. Lechuga, 888 F.2d 1472, 1480 (5^th Cir. 1989); Loof v. Sanders, 686 P.2d 1205, 1212-1213 (Alas. 1984)(citing Esquivel v. Nancarrow, 104 Ariz. 209, 450 P.2d 399, 403 (1969)).

20. 312 Minn. 449, 450-451, 254 N.W.2d 340, 342 (1977)(bracketed material substituted for original, emphasis in original).

21. Id. at 454-455, 454 n. 3.

22. Id. at 454-455 (ellipsis inserted).

23. Advisory Committee Notes, Fed. R. Evid. 701.

24. See State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000). And nothing prevents the trial court from asking the witness for more specificity before deciding to credit the opinion testimony. See McCormick, §11, p. 50 ("provided personal knowledge is adequately established the witness need not recite the observed matters that are the basis of opinion, although the judge has discretion to require preliminary testimony abut the facts observed" - emphasis added).