                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00609-CR


MATTHEW LEE BARNETT                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12446

                                    ----------

                            DISSENTING OPINION

                                    ----------

      I must respectfully dissent from the opinion of the conscientious majority

for more than one reason.

      The majority, relying on Swain v. State,1 holds that Barnett did not

preserve his suppression issue for appellate review. The Swain court stated,


      1
       181 S.W.3d 359 (Tex. Crim. App. 2005), cert. denied, 549 U.S. 861
(2006).
              In his written “Motion to Suppress Evidence,” appellant
      generally argued “[t]hat any statements made by Defendant were
      obtained in violation of his right to counsel and his right against self-
      incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV,
      and Tex. Const. art. I, §§ 10 and 19.” He also generally argued in
      his motion to suppress that his statements were inadmissible under
      Article 38.23. These arguments were global in nature and contained
      little more than citations to constitutional and statutory provisions. At
      the hearing on the motion to suppress, appellant failed to complain
      about being questioned after asserting his right to counsel, and
      instead simply objected that his statements were inadmissible
      because the police illegally arrested him and failed to comply with
      the requirements of Articles 38.22, 14.03, and 14.06. Appellant’s
      global statements in his pretrial motion to suppress were not
      sufficiently specific to preserve the arguments he now makes on
      appeal.2

Swain turns on the fact that Swain argued constitutional rights generally in the

trial court but only on appeal did he raise the fact that he had requested counsel

and was denied access to counsel. Thus, the Swain trial court was not put on

notice of his true complaint.

      In the case now before this court, both in the trial court and on appeal,

Barnett complained of the admission of the fruits of the poisonous tree: that “[a]ll

evidence, both physical evidence as well as [his] statements . . . , collected as a

result of the traffic stop in this case should be suppressed.” It is true that after

trial, Barnett was able to list the specific items that had been admitted into

evidence during the trial, but the trial court was on notice of the items Barnett

sought to suppress—his statement and the items the police seized when they

searched the car and Barnett—as well as the reasons for which they should be

      2
       Id. (citing Tex. R. App. P. 33.1).


                                            2
suppressed. The posture of this case is not that of Swain. I would hold that

Barnett sufficiently preserved his suppression issue for appellate review.

         I would also hold that the warrantless detention of Barnett was not justified.

“The Fourth Amendment to the United States Constitution permits a warrantless

detention of a person, short of a full-blown custodial arrest, if the detention is

justified by reasonable suspicion.”3        The legality of traffic stops for Fourth

Amendment purposes is subject to analysis under the Terry standard,4 that is,

whether the officer’s action was justified at its inception and whether the search

and seizure were reasonably related in scope to the circumstances that justified

the stop in the first place.5

         Barnett argues that Deputy Lane saw no real traffic offense. The trial court

did not find or conclude that Barnett committed a traffic offense in Lane’s

presence. The majority essentially holds that because Barnett did not challenge

one of the grounds for denying the criminal version of summary judgment, he

loses:

                 Barnett’s sole point on appeal must be overruled because he
         fails to challenge a ground stated by the trial court in its findings of
         fact and conclusions of law as to why Lane’s stopping of Barnett was
         in fact constitutionally firm—that Lane had reasonable suspicion that



         3
         Johnson v. State, 414 S.W.3d 184, 191 (Tex. Crim. App. 2013).
         4
         Terry v. Ohio, 392 U.S. 1, 28, 88 S. Ct. 1868, 1883 (1968).
         5
         See Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).


                                            3
      Barnett was a party to the methamphetamine sale that occurred in
      Cresson prior to Lane having stopped him.6

      Respectfully, the term “reasonable suspicion” is not a magic talisman that

suspends the protections of the Fourth Amendment’s warrant requirement. As

Justice Marshall explained in his Sokolow dissent,

      The reasonable-suspicion standard is a derivation of the probable-
      cause command, applicable only to those brief detentions which fall
      short of being full-scale searches and seizures and which are
      necessitated by law enforcement exigencies such as the need to
      stop ongoing crimes, to prevent imminent crimes, and to protect law
      enforcement officers in highly charged situations.7

      The timeline of events was

           2:30 p.m.—meeting for methamphetamine sale

           2:52 p.m.—initial negotiations to meet for drug transaction with
            Appellant

           6:30 p.m.—Appellant said they could meet at 10:00 p.m.

           11:15 p.m.—Officer Miller told patrol officer to stop Appellant.

      If the ground justifying the seizure of Barnett was that he was a party to the

methamphetamine sale that occurred nine hours earlier in Cresson, why is there

no warrant? Miller, the undercover officer, arranged to meet with Appellant five

hours before the arrest. What is the warrant exception that justifies suspending

the warrant requirement? Again, the trial court did not find that the officer viewed


      6
       Maj. Op. at 8.
      7
      United States v. Sokolow, 490 U.S. 1, 12, 109 S. Ct. 1581, 1588 (1989)
(Marshall, J., dissenting).


                                         4
a traffic violation; the record therefore clearly reflects that the purpose of stopping

Barnett was to search and arrest him.

      Reasonable suspicion will not support an arrest.8 A warrantless arrest

must be founded on probable cause plus a recognized exception to the warrant

requirement. Probable cause is a higher standard than reasonable suspicion. 9

Probable cause will support a warrant. In the more than five hours that the police

waited for Barnett, they made no effort to secure a warrant. Nor does the State

suggest any impediment to securing the warrant. There is also no evidence of

an exigency.

      Somehow, we seem to have concluded in Texas that reasonable suspicion

takes the place of the constitutional warrant requirement. This is simply not true.

Reasonable suspicion supports an investigation into whether a crime has been or

is being committed. If, as the trial court found and the majority accepts, the

police were justified in arresting Barnett because he had been a party to the drug

transaction, what evidence of that transaction did the police expect to find when

they stopped his car and detained him? What was the exigency that prevented

      8
      Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013) (“[A]rrests,
the most intrusive of Fourth Amendment seizures, . . . are reasonable only if
supported by probable cause.”).
      9
        Rhoades v. State, 84 S.W.3d 10, 15 n.2 (Tex. App.—Texarkana 2002, no
pet.) (“The rule in Terry permits ‘stop and frisk’ searches for guns, knives, clubs,
or other weapons for the purpose of protecting the police officer and others
nearby on the basis of reasonable suspicion that the subject of the search might
be armed and dangerous, rather than demanding that officers meet the higher
standard of probable cause.”).


                                          5
their seeking a warrant during the five hours they did not act?        There is no

evidence in the record that Barnett was in possession of evidence of the drug

transaction that he would destroy as soon as the timer hit five hours. There is no

evidence that he would flee when the timer hit five hours. There is a mention of

officer safety because Barnett could have had a gun or guns. But why were the

guns less of a danger to a lone officer than to officers trained to execute

warrants? Why did the threat of danger suddenly arise after five hours expired?

Why did the exigency arise only after five hours of doing nothing to seek a

warrant?

      In this case, the arresting officer admitted that he was looking for a pretext

to stop Barnett and search his car. As Barnett argues,

              Under cross-examination, Lane stated that the reason for the
      traffic stop was the driver’s violation of Texas Transportation Code
      §545.060(a)(1). Lane testified that he had committed in his mind to
      pull over Appellant’s vehicle for some traffic offense, based on the
      information that he had received from Sgt. Odom.

             Lane testified that Appellant’s crossing of the white line
      occurred for just a few seconds and a short distance (18 inches) into
      the other lane. Lane testified that there were no cars in the lane
      beside the lane in which Appellant was driving, nor was there a car
      in the lane adjacent to that lane or even in the lane to the right of
      that lane. Lane’s in-car video shows the Appellant’s car as it
      negotiated the left hand turn as it was being stopped by the officer.

            Lane had not returned Appellant’s license and had not said
      that Appellant was free to leave prior to the time that he asked to
      search Appellant’s vehicle. [Record citations omitted.]




                                         6
But as the majority points out, the trial court did not find that the police

based the detention on a perceived traffic violation. The trial court found

only that the police detained Barnett for the reported drug offense:

              Even though Lane testified that one of the reasons he initiated
      a traffic stop of Barnett’s vehicle was because Barnett had failed to
      maintain a single lane of traffic, the trial court did not make such a
      finding. Instead, the trial court specifically found that Lane had
      reasonable suspicion to stop Barnett based on the information he
      had received from fellow officers regarding Barnett’s involvement in
      the arrests of Youngstrom and Duval. This finding is supported by
      the law and the facts as determined at the suppression hearing.10

      The issue is not whether the police had sufficient information to provide

probable cause. The issue is why no request for a warrant was submitted to the

scrutiny of a detached, neutral magistrate. Nothing in the record suggests that

no magistrate was available.          The majority does not explain what “law

enforcement exigenc[y]” necessitated this warrantless detention or which

exception to the warrant requirement justifies the warrantless detention.

Because the majority does not explain how the warrantless detention based on

information that Barnett had acted as a party to a crime five hours earlier is

“constitutionally firm,” I must respectfully dissent.

                                                        /s/ Lee Ann Dauphinot
                                                        LEE ANN DAUPHINOT
                                                        JUSTICE

PUBLISH

DELIVERED: June 18, 2015

      10
        Maj. Op. at 9.


                                           7
