Court holds that reasonable suspicion cannot be developed retroactively

Can the police develop reasonable suspicion to make a traffic stop after the fact? When put that way, the obvious answer is no. If reasonable suspicion is required to make a traffic stop, one either has it at the time of the stop or doesn't.

But, to the courts, it wasn't such an obvious answer. At least before the Texas Court of Criminal Appeals issued its ruling in Martinez v. State, Nos. PD-1238-10 and PD-1239-10 (2011).

Police in Del Rio, Texas were notified by an anonymous caller that someone was acting suspicious and  had put two bikes in the back of a blue pickup. Officer Hurley spotted a pickup that looked blue and began following it. After following the truck for four blocks, and not seeing any traffic violation, Officer Hurley stopped the truck.

When he walked up to the truck, the officer noticed two bikes in the bed. Upon contacting the Mr. Martinez, Officer Hurley noted a strong odor of alcohol and glassy eyes. To no one's surprise, Mr. Martinez was arrested for driving while intoxicated. To make matters worse, Officer Hurley also found a usable amount of marijuana after the DWI arrest.

Mr. Martinez filed a motion to suppress the stop, arguing that there was insufficient basis to stop his truck since the caller was never identified. He also argued that Officer Hurley lacked reasonable suspicion to make the stop. The trial court denied his motion and Mr. Martinez pled guilty to both charges. The Court of Appeals upheld the trial court's ruling.

The Court of Criminal Appeals then ruled that the officer lacked reasonable suspicion to make the stop. While the caller was never identified, she did appear at the scene following the traffic stop. However, the basis of the stop must be determined by the facts at the time of the stop, not by what the officer learns after making the stop. In this case, the officer had a tip from an anonymous caller. He never observed a traffic violation. He didn't find the bikes in the truck until after he made the stop. But for the illegal stop, he never would have noted any signs of intoxication; and, he never would have discovered marijuana in the truck but for the DWI arrest. In other words, in order to effect a traffic stop, the police must have specific articulable facts indicating that criminal activity is afoot before making the traffic stop. Any reasonable suspicion developed after the stop cannot be used to justify the stop in the first place.

The Court of Criminal Appeals reversed the conviction and remanded the case for further proceedings.

Texas court lowers the standard for reasonable suspicion

Over the years court have continually lowered the standard by which a police officer may intrude upon the liberty of an individual. A law enforcement officer in Texas can stop a motorist on what the law calls "reasonable suspicion." A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot.

If the officer can't do it, then there was no reasonable suspicion and the stop is deemed illegal.

Well, at least that's the way we learned it.

According to the Texas Court of Criminal Affirms Appeals, a person's strange, non-criminal behavior, can give rise to reasonable suspicion that he would soon engage in a criminal act.

In Derichsweiller v. State, No. PD-0176-10, (Tex.Crim.App. 2011), an officer was called out to a Wal-Mart parking lot after a couple in the McDonald's drive-thru called 911 about a man who drove up alongside their car and grinned at them. He drove around the restaurant and stopped and grinned a second time before driving off into the Wal-Mart parking lot.

There were no allegations that Mr. Derichsweiller was doing anything illegal -- just weird. The officer stopped Mr. Derichsweiller while he was circling the Wal-Mart parking lot. The officer didn't witness Mr. Derichsweiller doing anything remotely illegal. Of course after he stopped him, the officer noted a strong odor of alcohol and then commenced a DWI investigation. And Mr. Derichsweiller had two prior DWI convictions.

The trial court found no problem with the stop and denied Mr. Derichsweiller's motion to suppress. The Court of Appeals, on the other hand, had a problem with the stop and reversed the trial court on the grounds that neither the officer, nor the couple at the restaurant, witnessed any behavior that suggested Mr. Derichsweiller was involved in criminal conduct.

The Court of Criminal Appeals disagreed and stated that

[w]hile it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant's conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability--a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.

So now what does "reasonable suspicion" even mean? Does it mean anything? Sure, Mr. Derichsweiller's behavior was bizarre, to say the least, but does it follow that bizarre behavior now gives rise to reasonable suspicion that someone is about to commit a crime?

Reasonable suspicion of what? The facts pointed to no criminal offense. The officer's observations of Mr. Derichsweiller's driving pointed to no criminal offense. It would appear that the court's decision had more to do with finding a way to uphold a felony DWI conviction than upholding the Constitution.