Defendant moved to suppress
meth and drug paraphernalia evidence seized after a traffic stop. Motion
denied, the defendant pleaded out and appealed. The Texarkana Court of Appeals reversed,
finding that the officer conducting the stop lacked reasonable suspicion to
continue the detention until a drug dog arrived, which, when summoned, alerted
to drugs within the vehicle. They didn’t address the State’s “cross-appeal”
arguing that the trial court should not have applied the rules of evidence in a
suppression hearing because the State failed to file its own notice of appeal.
Texas’s Court of Criminal
Appeals heard the State’s petition for the CCA to resolve a split among the
courts of appeals as to whether the State must file a separate notice of appeal
when the defendant appeals and the State wishes to appeal a law ruling of law
under Article 44.01(c), Texas Code of Criminal Procedure. The CCA held in an 8-1
decision that the State need not and remanded the State’s point back to
Texarkana.
The officer on the scene said
he stopped the defendant’s truck because it lacked needed mud flaps. The officer
went on to say that the defendant seemed nervous and answered his questions
vaguely. While waiting to hear back on a warrants check, the officer got a call
from a county investigator (not clear from the opinions what precise agency the
investigator was working for). Defense counsel consistently objected to the
officer’s repeating what the investigator told him, and it does not appear that the State made an offer of proof.
In this case on remand,
Texarkana, in an opinion written by Justice Bailey C. Moseley, held that though, with the exception of privileges, the Texas Rules of Evidence
do not apply to suppression hearings because they involve only the
determination of preliminary questions and even though hearsay is admissible at
a suppression hearing to demonstrate the existence of reasonable suspicion or
probable cause, the objection to the motion to suppress was properly overruled because
even though the State did not get an adverse ruling, it did not keep going to reveal
what was in the call which might or might not have given the officer cause to hold
the defendant further. There is no evidence that the officer possessed
sufficient reasonable suspicion to have detained the defendant for the period
of time necessary to bring the drug dog to the site of the stop. This case can
be distinguished from Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) and similar cases by the failure to limit or exclude admissible evidence.
Comments: Note here that the
CCA takes the case not because Texarkana’s judgment is a gross miscarriage of
justice (It might be; it might not be.), but to resolve a split among the state
courts of appeals. On a petition for discretionary review to the Court of
Criminal Appeals (or on a petition for review to the Texas Supreme Court or in
an application for writ of certiorari to the Supreme Court of the United
States), don’t just talk about whether the intermediate appellate court ruling
is a triumph or miscarriage of justice but also emphasize how a ruling in your
case will resolve splits between the appellate courts the court you’re making
application to is supposed to be governing. Really, the way that the system is
set up, that’s how the high courts are supposed to choose their cases.
