This opinion -- written by Texas appeals court judge Brian Quinn -- is a breath of fresh air for those of us who have watched as courts have continually deferred to law enforcement officers and their declarations that nearly everything drivers do -- or DON'T do -- is "suspicious."
It's also a slap in the face of those same law enforcement officers -- the ones who use their "experience and training" to find nearly any action, or lack thereof, to be supportive of a warrantless search.
As Scott Greenfield points out, Judge Quinn does something few judges are willing to do: be honest.
In a remarkable decision, Chief Justice Brian Quinn of the Texas Court of Appeals, Seventh District at Amarillo, does something that could destroy the very foundation of the criminal justice system. He’s intellectually honest.
The opinion deserves to be quoted from at length, which is exactly what I'm going to do. Judge Quinn skewers both the supposed indicia of "suspicious" behavior as well as officers' routinely unchallenged assertions that such stretches of the imagination are based on years of "training and experience."
The opening of the opinion [PDF] is fantastic, a wonderful taste of the more thorough examination (and debunking) of the officer's claims that follows. (Internal citations omitted and linebreaks added for readability.)
A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.
Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”).
The defendant was pulled over for driving three miles above the speed limit. When approached on the passenger side of the vehicle by the deputy, the defendant opted to open the door. Starting with nothing, the officer quickly built a case for drug trafficking in his mind.
He approached the passenger side of the stopped vehicle. Instead of lowering the car window, though, appellant opened the passenger door. That was suspicious to the officer because in his “training and experience” drug smugglers have lined car doors with drugs which act impedes a window’s operation. Once the door was open, the deputy smelled cigarette smoke and a strong scent of cologne; so too did he see the car’s ashtray full of cigarette butts. Those circumstances added to his suspicion because from his “training and experience” he knew that drug smugglers have used odors to mask the scent of drugs. Soon he discovered that the vehicle happened to be a rental with “no smoking” decals affixed to it, and appellant apparently was returning from some unknown casino to Miami, Florida. The deputy recalled from his “training and experience” that drug smugglers rent vehicles to transport their contraband. So, the presence of a rented vehicle heightened his suspicion that his detainee may be engaging in criminal activity. Also noted by the deputy was appellant’s “severe” nervousness and failure to calm down after being told that he would only be receiving a warning ticket.
A drug dog on the scene was deployed and several pounds of marijuana were uncovered in the resulting search. But that doesn't matter now because Judge Quinn isn't buying the excuses that elevated a traffic stop into a warrantless vehicle search. As Quinn sees it, simply relying on (unproven) "experience" isn't enough to justify a search simply because some indicators might fit profiles of those arrested in the past.
In other words, unusual behavior may fit the profile of someone who engages in a particular kind of crime. But what elevates it to the level of reasonable suspicion is not that it fits a profile but that it is unusual and the officer can explain why it is suspicious in the particular scenario before him. Id. That is, the officer must explain why the activities are unusual and, therefore, meaningful in the specific case under assessment. To reiterate what we said in Gonzalez-Gilando, just because that bald guy committed a crime while wearing a suit and after eating spaghetti does not mean that other bald guys who wear suits while eating spaghetti are about to engage in crime too.
Certainly, the deputy must be given some credit for his asserted "training and experience," Quinn acknowledges:
Smoking in a car while driving despite the presence of “no smoking” stickers, wearing cologne, driving a rental car, driving with windows rolled up, opening a car door, not rolling down a car window, travelling to casinos, and driving to Miami, Florida are activities committed by people who have no relationship to criminal activity. Alone, none of them implicitly or explicitly connote criminal activity. Nor to the reasonable, common man would they connote such activity if they occurred all together. Yet, the test is not what the common man thinks but what the reasonably prudent officer would perceive under the same circumstances. And, that requires us to view the situation through the prism of the detaining officer’s knowledge and experience.
But how much credit, especially if the only thing backing up claims of "experience" is the deputy's assertion itself?
[A]side from the deputy simply invoking his “knowledge, training and expertise,” the State did little to illustrate of what it consisted or how it was garnered.
Quinn examines the state's sole witness and his claims of "experience."
To one trained and experienced in the fields of law enforcement, smuggling, human behavior, and drug interdiction, each of the aforementioned indicia have special significance, opined by the deputy here. Yet, what of the deputy’s training and experience and knowledge — what does the record say about it. Our answer is, not much.
The state apparently wants circular reasoning to do its job for it.
We were left to accept as suspicious what the deputy said was suspicious merely because he said it was suspicious given his unexplained level of “knowledge, training, and experience.”
Every one of the supposed indicators of "suspicion" are probed by the court and discarded. First, Quinn notes that people are more likely to be nervous when speaking to law enforcement officers than not, especially if the questions turn to suggestions of criminal behavior. As to the cigarettes and cologne being nothing more than masking agents to conceal drug odors?
People smoke cigarettes in cars while driving. Indeed, that act is so common manufacturers designed cigarette ashtrays into their vehicles. So too is wearing fragrances a commonplace event. If this were not so then seldom would we be accosted by the myriad aromas wafting through the air at the entrances of many department stores. And, if both the overpowering scent of cologne and the presence of cigarette smoke could mysteriously dissipate upon entry into a car, many of us would not have been bothered as a child by that parent who happened to strike up his Pall Mall after dousing himself with Aqua Velva in the morning. Yet, those common activities became unusual and indicative of drug smuggling when performed on an Interstate highway, according to the deputy.
The same goes for the "suspicious" behavior that is renting a vehicle.
We accept the likelihood that people who have rented cars have also possessed drugs within them at one time or another. But, so too do we accept the likelihood that people have rented cars without engaging in such criminal conduct. The deputy was not asked to explain whether, from his “knowledge, training or experience,” he could opine if one scenario happened more than the other or if the former occurred to such an extent so as to provide rational basis from which to infer some significant nexus between rental cars and drugs.
The court notes that there was one suspicion the deputy could have cleared up immediately but, for some reason, chose not to: that the driver did not roll down the window because the door panels were filled with drugs. But rather than check the window himself or ask the driver to do it for him, the deputy opted to leave this mystery unsolved and engage in some logical gymnastics.
What we have here is a mere leap from the fact that appellant opened the car door to the assumption that the car windows do not work because the doors are stuffed with drugs. There may be other reasons why someone opens a door rather than a window. One of those reasons may well be a circumstance also mentioned by the deputy. To him, appellant seemed “confused” when the deputy opted to approach the passenger-side door as opposed to the driver-side door. Nor can we ignore the deputy’s own testimony regarding the number of times he had encountered drugs being hidden within the doors of a car driven on the Interstate. Again, that number was just “a few.” Such limited experience makes a leap from 1) opens door to 2) drugs in door little more than a hunch.
The caveat, of course, is that this opinion means little more than Judge Quinn won't be as easily swayed by assertions of "expertise." Many, many other courts will continue to treat such law enforcement proclamations as unimpeachable. The other problem is that Quinn's opinion simply demands law enforcement officers do a bit more CV-buffing before testifying in court, as Scott Greenfield points out.
Chief Justice Brian Quinn’s opinion reflects intellectual honesty. The upshot is that the legal system will still believe any nonsensical lie told by a cop on the stand if the prosecution fleshes it out with enough background fluff to satisfy the demand of creating the appearance of expertise.
More courts need to be willing to challenge such questionable connective tissue between observed (but often normal) behavior and suspicionless stops and searches. Most won't. And haven't. And that's why we're in the situation Judge Quinn describes in the opening paragraph of his opinion: where breathing and having two hands are next on the list of criminal activity indicia.