                                                                                 ACCEPTED
                                                                             03-15-00490-CR
                                                                                     8168375
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        12/9/2015 5:14:50 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
             No. 03-15-00490-CR & 03-15-00491-CR

                 IN THE COURT OF APPEALS                   FILED IN
                                                    3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
        FOR THE THIRD SUPREME JUDICIAL           DISTRICT
                                                    12/9/2015 5:14:50 PM
                                                      JEFFREY D. KYLE
                                                            Clerk
                           OF TEXAS



                   ERNEST PEREZ, Appellant

                               VS.

                THE STATE OF TEXAS, Appellee




                  From the 274th District Court of
                       Hays County, Texas,
           the Honorable Judge R. Bruce Boyer, presiding



                     APPELLANT’S BRIEF


                                     Ken Mahaffey
                                     Counsel for Appellant
                                     P. O. Box 684585
                                     Austin, Texas 78768
                                     Phone & Fax (512) 444-6557
                                     St. Bar No. 12830050
                                     Ken Mahaffey@yahoo.com


ORAL ARGUMENT REQUESTED ONLY IF STATE REQUESTS ARGUMENT
                                        TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        Because the dispatcher failed to tell the stopping officer that there
        was no arrest warrant for suspect he was seeking, the officer lacked
        reasonable suspicion to stop Appellant’s vehicle.

        I. Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   2
        II. The call to police did not justify a stop. . . . . . . . . . . . . . . . . . . . . . . . . . .                 3
        III. Collective Knowledge Doctrine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   3
        IV. Failure to communicate complete information not litigated in Texas. . .                                        4
        IV. Collective Knowledge Doctrine should apply both
               “Permissively and Prohibitively.”. . . . . . . . . . . . . . . . . . . . . . . . . . . .                    5
        VI. Stop not supported by reasonable suspicion.. . . . . . . . . . . . . . . . . . . . . .                         7

POINT OF ERROR NUMBER TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        When moments after the stop, the officer learned Appellant was not
        involved in the investigation he was undertaking any extension of
        the detention was improper.

        I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
        II. Warrantless detentions should not exceed the purpose of the stop. . . . . . 8

                                                            i
        III. Any reason for detaining Appellant was dispelled when the
               officers determined Appellant was not involved in the incident
               being investigated.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        IV. Further detention based on observation of bullet box was
               unwarranted.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
        V. Conclusion - the stop was improperly prolonged beyond its
               original purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12



PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE . . . . . . . 13




                                                         ii
              IDENTITY OF JUDGE, PARTIES AND COUNSEL

      The following is a list of all parties to the trial court's final judgment and their

counsel in the trial court:

      1. Trial Judge:                    R. Bruce Boyer
                                         274th District Court
                                         712 S. Stagecoach Trail, 3rd Fl.
                                         San Marcos TX 78666

      2. Appellant:                      Ernest Perez
                                         Holliday Unit
                                         02016895
                                         295 I.H. 45 North
                                         Huntsville, TX 77320-8443

      3. Defense Counsel:                Todd Dudley
                                         Attorney at Law
                                         812 San Antonio St., G5
                                         Austin Texas 78701

      4. The State of Texas:             John Crouch
                                         Hays Co. D. A.'s Office
                                         712 S. Stagecoach Trail
                                         San Marcos TX 78666




                                           iii
                               INDEX OF AUTHORITIES

CASES:

State Cases:

    Albo v. State, 477 So.2d 1071 (Fla. App. 3 Dist. 1985). . . . . . . . . . . . . . . . 6

    Brown v. State, 986 S.W.2d 50 (Tex. App. -
         Dallas 1999, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Commonwealth v. Hecox, 35 Mass.App.Ct. 277,
        619 N.E.2d 339, 344 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

    Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997). . . . . . . . . . . . . 9, 12

    Jackson v. State, 745 S.W.2d 4 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . 3

    Jameson v. Commonwealth, 2012-CA-1478-MR
         (Ct. App. Ky. September 27, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 5

    Morfin v. State, 34 S.W.3d 664 (Tex. App. -
          San Antonio 2000, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    O'Bryan v. State, 464 S.W.3d 875 (Tex. App.-
         Fort Worth 2015, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

    Ott v. State, 600 A.2d 111, 325 Md. 206 (Md. 1992).. . . . . . . . . . . . . . . . . . 6

    People v. Fields, 785 P.2d 611 (Colo.1990).. . . . . . . . . . . . . . . . . . . . . . . . . 6

    People v. Ramirez, 668 P.2d 761 (Cal. 1986).. . . . . . . . . . . . . . . . . . . . . . . . 6

    St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007). . . . . . . . . 9, 12

    State v. Moore, 614 A.2d 1360, 260 N.J.Super. 12
           (N.J.Super.A.D. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                                                  iv
     State v. O'Cain, 31 P.3d 733, 108 Wn.App. 542
            (Wash.App. Div. 1 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

     State v. Peterson, 830 P.2d 854, 171 Ariz. 333
            (Ariz.App. Div. 1 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




 Federal Cases:

     Florida v. Royer,460 U.S. 491 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

     Ohio v. Robinette, 519 U.S. 33 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

     United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . 7

     United States v. Valadez, 267 F.3d 395 (5th Cir. 2001).. . . . . . . . . . . . 10, 12

     Whiteley v. Warden, 401 U.S. 560 (1971). . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7



Constitutional Provisions:

 Federal Constitution:

     U.S. CONST. AMEND. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9




                                                    v
                 STATEMENT OF PROCEDURAL HISTORY

      Ernest Perez was indicted for Unlawful Possession of a Firearm by a Felon and

Possession of Methamphetamine more than 4 grams but less than 200 grams. The

offenses were alleged to have been committed on October 30, 2013 in Hays County,

Texas. Appellant entered a plea of not guilty. After a trial before a jury, Appellant

was convicted and sentenced to 30 years. On July 6, 2015, Appellant perfected an

appeal to this Court.




                                         vi
                           STATEMENT OF FACTS

I. Overview.

      The principal issues in this case are the propriety of an initial warrantless

detention and extension of that detention after any suspicion concerning the stop was

dispelled. An eventual search of Appellant’s truck revealed a hand gun and

methamphetamine. More methamphetamine was found on Appellant’s person when

he was booked into jail. Because Appellant had a prior felony conviction, he was

charged with both unlawfully possessing the firearm and possession of

methamphetamine. A jury found him guilty. The trial court assessed punishment and,

after finding two prior convictions, sentenced Appellant to 30 years to run

concurrently.


II. The Stop.

      Around 8:00 p.m. on October 30, 2013, Officer Samuel Myers of the San

Marcos Police Department was dispatched to a 7-11 convenience store in San

Marcos, Texas. (RR4 11 - 12). A video from his patrol car recording the stop and

search was admitted as State’s Motion Exhibit 1.1 (RR4 22).

      The information available to Myers as he arrived at the scene was as follows:

      1
     The Exhibits Volume of the Reporter’s Record lists this exhibit as “STATE’S
EXHIBIT MTS NO. 1.” (RR8 6).

                                         vii
The dispatcher told him a woman had called 911. (RR4 12, 17). The caller stated a

female suspect had damaged her car a few days earlier. (RR4 13, 17). The suspect’s

name was Kristin Watts. (RR4 13). Watts was currently at the 7-11 and the caller was

observing her get into a gray truck. (RR4 13). The dispatcher also reported that the

caller said that she had reported damage incident and she believed the police had

obtained a warrant for Watts. (RR4 12, 17 - 18). A tape of the 911 call admitted into

evidence revealed Watts did not tell the dispatcher there was a warrant. (SX1 2:42).

      When Myers arrived, he saw the truck and activated his lights. (RR4 14; SX

MTS 1 07:58:10). Another officer, Daniel Royston, arrived at the scene as backup.

(RR4 16). Both officers testified Appellant was not free to leave from that point.

(RR4 37, 49). Myers went to the truck and spoke with Appellant through the driver’s

window. (RR4 14; SX1 07:58:20). Royston approached the passenger side. (RR4 71;

SX MTS 1 07:58:20).

      Myers saw there were two males in the front seat and a female in the back seat.

(RR4 14). Appellant was the driver. (RR4 14). Myers recognized Appellant from an

unrelated call earlier in the day. (RR4 23). Meyers then asked if Appellant had been

in any accidents and learned he had not. (RR4 15, 43). He did not observe any

collision damage to Appellant’s truck. (RR4 38). Myers also confirmed Watts was in

the vehicle. (RR4 14).

                                        viii
II. The Initial Search by Flashlight.

      While Myers spoke with Appellant, Royston walked up and down the

passenger side of the truck, shining his flashlight. (RR4 72 - 73; SX1 07:58:20 -

07:58:40). The truck had tinted windows and he was not able to see inside

completely. (RR4 72). The record is conflicting, but Royston eventually either opened

the passenger door or had the passenger roll down a window. Compare RR4 73 -

(Royston said he opened door) with RR4 90 - 91 (Royston said he instructed

passenger to open window). In any event, Royston testified he saw a box of .45

caliber ammunition on the back seat. (RR4 24, 92, 102 - 103). He added that this

made him suspect there was a firearm in the truck. (RR4 74 ).

      After a brief 15 second conversation with Appellant (SX1 07:58:20 -

07:58:45), Myers went to interview the caller who was waiting by the gas pumps.

(RR4 14, 17). As both Myers and Royston walked away from the truck, Myers told

Royston that Appellant was a criminal gang member. (RR4 23, 75; SX1 07:58:49).

Myers had no knowledge that Appellant had any felony criminal history. (RR4 29).


III. Focus and Abeyance of Suspicion.

      Myers then spoke with the caller and was told the incident occurred several

days previously. (RR4 17). He decided to check to see if there were any warrants for

                                         ix
Watts’ arrest. (RR4 18). At that point, the video records Myers unequivocally telling

Royston that, “[T]he guys didn’t do anything except that she happens to be in their

car.” (SX MTS 1 08:00:04).

      Myers then proceeded to get Watts out of the truck. (RR4 18; SX MTS 1

08:00:04). Approximately 15 seconds later, Royston opened the truck passenger door.

(RR4 74 - 75; SX1 08:00:15). Royston then approached Watts and asked if there was

a gun in the truck. (RR4 79 - 80). She replied, “not that I am aware of.” (RR4 80;

SX1 08:01:53). Royston testified that at this point he had decided to search the truck

for weapons. (RR4 80).

      Myers learned there were some unrelated municipal warrants for Watts. (RR4

20 - 21). She was arrested. (RR4 21). Myers had previously determined there were

no warrants for Appellant during his encounter with him two hours before. (RR4 37).

Neither officer witnessed any traffic offense. (RR4 38, 86). Both officers testified that

at the time of the stop they had no reasonable suspicion that Appellant was involved

in any crime. (RR4 43, 86).


III. Physical Search of the Truck.

      After Myers arrested Watts on the warrants, Royston removed Appellant and

the passenger from the truck. (RR4 81). He patted both down looking for weapons


                                           x
and found none. (RR4 81). His basis for the search was the box of ammunition. (RR4

81 - 82). He noticed after removing the occupants from the truck that the ammunition

box had been moved from where he saw it previously. (RR4 82, 104).

      Royston physically searched the truck finding a .357 caliber pistol in a

backpack between the two front seats along with ammunition clips for other guns and

additional types of ammunition. (RR4 83). The .45 caliber ammunition box was

found under the back seat. (RR4 238). Royston also found a glass pipe he suspected

was used to smoke methamphetamine and a marijuana “grinder.” (RR4 84). Further

search of the truck by a canine unit located suspected drugs in a cigarette package

between the driver’s seat and the front console. (RR4 528).

      Although he was seated next to the back pack with the gun and near the

cigarette package, the passenger was released at the scene. (RR4 132, 209, 213).


IV. Additional Evidence Unrelated to Stop and Search.

      Appellant was transported to jail and searched upon arrival. (RR4 255). More

suspected drugs were discovered underneath Appellant’s “scrotum.” (RR4 255 - 256).

Both the substance from the cigarette package and that seized at the jail were tested

and found to be methamphetamine. (RR5 149; SX 25). The aggregate amount

consisted of 10.45 grams. (RR5 147; SX 25).


                                         xi
       Appellant’s driver’s license and additional ammunition and ammunition clips

were found in a red bag in a closed area of the pickup truck. (RR4 239 - 240). The

clips matched those found in the black bag containing the pistol. (RR5 117). Video

from a police car recorded Appellant asking the passenger to take responsibility.

(RR5 109 - 114; SX 25 09:01:30) Although Appellant denied to police that the bag

was his, (RR4 239), he described it as his bag in a recorded phone call from the jail.

(RR5 188; SX 26).


V. Jury Charge and Verdict.

       Appellant requested two charges under Art. 38.23, Tex. Code Crim. Proc.

(2013). (RR6 5 - 10). The trial court denied an instruction concerning Officer Myers’

reasonable suspicion to stop Appellant. (RR6 17). The court did, however, grant an

instruction concerning whether Officer Royston saw the box of bullets. (RR6 17 -

18).

       The jury found Appellant guilty of both offenses. (RR6 86). Appellant elected

for the trial judge to decide punishment. (RR6 89). After a punishment hearing where

the trial court found two enhancement allegations to be true, Appellant was sentenced

to 30 years in each case to run concurrently. (RR7 75). Appellant appealed the

judgment of conviction to this Court.


                                         xii
                          SUMMARY OF ARGUMENT

      1. Point One. The stopping officer was led to believe by his dispatcher that

there was a warrant for a female in Appellant’s truck. What the dispatcher was

actually told by the caller was that the female had not been charged with any offense

and that any incident occurred several days prior at another location. Under the

collective knowledge doctrine information known to all officers involved in an

investigation can be used to justify a stop even if the officer making the stop does not

know each specific fact supporting the stop. Conversely, there is a duty on law

enforcement to ensure they have accurate information and to communicate that

information properly. While it has not been addressed in Texas, many other

jurisdictions have applied this collective knowledge doctrine to not just permit

detentions but also to prohibit detentions when law enforcement fails to ensure it has

accurate information and communicate this to the detaining officer.

      2. Point Two. When the suspicion that justifies a stop is dispelled it is

improper to extend a detention further. Here, the stopping officer determined within

minutes that Appellant was not involved in any offense concerning the female. He

admits this fact by informing the other officer that Appellant “. . . had nothing to do

with it . . .” The detention should have ceased at that point.




                                          xiii
                         IN THE COURT OF APPEALS

             FOR THE THIRD SUPREME JUDICIAL DISTRICT

                                    OF TEXAS



                            ERNEST PEREZ, Appellant

                                         VS.

                        THE STATE OF TEXAS, Appellee


                              APPELLANT’S BRIEF


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW Ernest Perez, Appellant, through counsel, Ken Mahaffey, and

respectfully submits this Brief.

                          STATEMENT OF THE CASE

      This is a case where Appellant challenges the stop of his truck because the

police dispatcher led stopping officer to believe there was an arrest warrant when the

911 caller he relied upon explicitly told him that the person had not been charged.

Appellant also challenges extension of the detention after it was determined that he

was not involved in the incident the officer was investigating. Appellant now

respectfully tenders this brief on appeal.


                                             1
                               POINTS OF ERROR

POINT OF ERROR NUMBER ONE:

      Because the dispatcher failed to tell the stopping officer that there was no
      arrest warrant for suspect he was seeking, the officer lacked reasonable
      suspicion to stop Appellant’s vehicle.


                       ARGUMENT AND AUTHORITIES

I. Overview.

      Police received a call that they should detain a particular person for allegedly

breaking a car windshield wiper several days prior to the call. That call also related

that the caller had reported the incident and there was no charge against the

individual. This information, while known to the dispatcher, was not conveyed to the

officer who initiated the stop. Because he was not sufficiently informed, he was also

confused as to whether the event had just occurred. Essentially, the officer based his

stop on the belief that there was a warrant for the arrest of the identified person. The

“collective knowledge” doctrine will support a finding of reasonable suspicion for a

stop when other officers have information that would permit a fellow officer to make

a stop even when that officer does not know all the underlying facts. Appellant

submits this collective knowledge also imparts a duty on law enforcement to use all

that information to protect citizens from improper stops. The officer should have been


                                           2
told there was no charge or arrest warrant.


II. The call to police did not justify a stop.

      A recording of the 911 call was offered by the State and admitted at trial. (RR4

145; SX 1). In this call, the caller said there was a lady named Kristin Watts who had

damaged her car by removing her windshield wiper. She said the police had

previously told her to call if she saw Watts because she had not been arrested or

charged. Specifically, the caller said “I know she has not been charged with that case

yet.” (SX1 2:42). The fact that Ms. Watts had not been charged with an offense was

not relayed to Samuel Myers, the officer who stopped Appellant’s truck to detain

Watts. Instead, Myers testified he was told the caller thought there was a warrant for

Watts’ arrest. (RR4 12, 18, 165).


III. Collective Knowledge Doctrine implies correct information.

      When there has been some cooperation between law enforcement officers,

reasonable suspicion for a stop can be supported by the collective information

available to all officials involved in the investigation. Jackson v. State, 745 S.W.2d

4, 8 (Tex. Crim. App. 1988). However, that information still must be accurate to

support the stop. Whiteley v. Warden, 401 U.S. 560, 569 (1971). Here, the dispatcher

knew there were no charges pending against Watts but did not communicate that fact

                                          3
to the stopping officer. The officer then proceeded on inaccurate information

believing there was a warrant for Watts. The question is to what extent does law

enforcement owe a duty to communicate accurate information.


IV. Failure to communicate complete information not litigated in Texas.

      The closest corollary in Texas Jurisprudence is a case from the 2nd District

Court of Appeals. See O'Bryan v. State, 464 S.W.3d 875 (Tex. App.- Fort Worth

2015, pet. ref’d). In O'Bryan, supra, the defendant was stopped based on a report the

car he was driving was stolen. Id. at 875. The report had been withdrawn but police

did not update their records. Id. The Court decided the issue based on cases where

police were entitled to rely on reasonably reliable sources of information like NCIC

reports of stolen vehicles citing Brown v. State, 986 S.W.2d 50, 54 (Tex. App. -

Dallas 1999, no pet.) (“it is not necessary for the NCIC database of stolen vehicles

to be accurate on every occasion for an NCIC hit to establish probable cause”).

      The situation here is very different. Here, the dispatcher did not rely on any

reasonably reliable data base. The dispatcher was told by the caller that some

unidentified police officer had allegedly told the caller to contact police she saw

Watts. But, most importantly, the caller told the dispatcher Watts had not been

charged. This key information was not communicated to the stopping officer who was


                                         4
led to believe there was a warrant for Watts’ arrest.


IV. Collective Knowledge Doctrine should apply both “Permissively and
Prohibitively.”

      O'Bryan, supra, did not reach the issue of whether the collective knowledge

rule should be applied both “permissively and prohibitively.” Id. at 875. The Court

noted that Texas has applied the doctrine “permissively” to justify stops based on

collective information. Id. This means that collective information that could support

a conclusion of reasonable suspicion would “permit” a proper stop. Appellant argues

that communication of collective wrong information should also “prohibit” a finding

of reasonable suspicion.

      While Texas has not decided this issue, other jurisdictions have plainly applied

the doctrine both “permissively” and “prohibitively.” For instance in Kentucky, the

courts held collective knowledge should also apply to erroneous information not

corrected by police so an improper report of a stolen vehicle would not support a stop.

See Jameson v. Commonwealth, 2012-CA-1478-MR (Ct. App. Ky. September 27,

2013). Many other state courts have agreed. See e.g., Washington: State v. O'Cain,

31 P.3d 733, 108 Wn.App. 542, 556 (Wash.App. Div. 1 2001)(incorrect information

concerning whether car stolen required suppression of illegally possessed firearm);

New Jersey: State v. Moore, 614 A.2d 1360, 1362, 260 N.J.Super. 12, 16

                                          5
(N.J.Super.A.D. 1992)(“While the officer who made the arrest no doubt did so

blamelessly and in good faith reliance on the records. . .,” arrest under a recalled

warrant was illegal); Maryland: Ott v. State, 600 A.2d 111, 119 325 Md. 206 (Md.

1992)(collective knowledge doctrine includes duty to communicate withdrawal of a

warrant); Arizona: State v. Peterson, 830 P.2d 854, 171 Ariz. 333, 336 (Ariz.App.

Div. 1 1991)(execution of withdrawn warrant required suppression); California:

People v. Ramirez, 668 P.2d 761, 765 (Cal. 1986)(suppressing evidence obtained by

arrest on withdrawn warrant); Colorado: People v. Fields, 785 P.2d 611 (Colo.1990)

(arrest pursuant to incorrect computer information invalid and required suppression);

Massachusetts: Commonwealth v. Hecox, 35 Mass.App.Ct. 277, 619 N.E.2d 339,

344 (1993)(arrest on warrant for which bail was already posted improper); Florida:

Albo v. State, 477 So.2d 1071 (Fla. App. 3 Dist. 1985)(“just as the police may

permissibly act upon their collective knowledge, so they are restrained by their

collective ignorance.”).

      Moreover, the U.S. Supreme Court also spoke definitively on this issue in

Whiteley v. Warden, 401 U.S. 560, 569 (1971). There the Court acknowledged the

arresting officer acted with pure motives when he executed a warrant. Id. However,

because the warrant affidavit stated no facts that would support a probable cause

determination, the arrest was invalid. Id. Whiteley, supra, is still good law despite

                                         6
some later authority addressing “good faith” reliance on improper information.


V. Good faith not applicable.

      All of the above cited cases from other jurisdiction rejected the good faith rule

of United States v. Leon, 468 U.S. 897 (1984)(officer may properly rely in good faith

on an otherwise valid search warrant even if issued on less than probable cause).

They rejected application of the rule because there is an expectation that law

enforcement must maintain integrity in the information it compiles itself and acts

upon. The Court in Hecox, supra, considered decisions from other states and

concluded succinctly “. . . Leon did not allow law enforcement authorities to rely on

an error of their own making.” Id. 619 N.E.2d at 342. Texas should be no different.


VI. Stop not supported by reasonable suspicion.

      Because law enforcement has responsibility to disseminate complete and

accurate information, the stop was not supported by reasonable suspicion. Whiteley

v. Warden, 401 U.S. 560, 569 (1971). Here, the stopping officer was misled by his

dispatcher to believe there was a warrant for Kristin Watts for criminal mischief.

Appellant was not observed committing any sort of traffic or criminal offense. If not

for this incorrect information, there was no reason to stop him. Therefore, the stop

violated his right to be free of unreasonable searches and seizures. See U.S. CONST.

                                          7
AMEND. IV. The evidence should have been suppressed.



POINT OF ERROR NUMBER TWO:

      When moments after the stop, the officer learned Appellant was not
      involved in the investigation he was undertaking any extension of the
      detention was improper.

                      ARGUMENT AND AUTHORITIES

I. Introduction.

      Appellant’s truck was stopped by officer Samuel Myers solely on the suspicion

that a caller to 911 said Kristin Watts had committed criminal mischief and had a

warrant for her arrest. (RR4 13 - 14). Neither Myers nor the backup officer, Daniel

Royston observed any traffic violation or criminal activity by Appellant. Appellant’s

truck contained Appellant, a male passenger and Watts. Moments after the stop,

Myers spoke with the caller. At that point, he determined that any suspicion focused

only Watts. Indeed, the video records Myers telling Royston, “[T]he guys didn’t do

anything except that she happens to be in their car.” (SX1 08:00:04). Any reason for

Appellant’s continued detention ended at that point.



II. Warrantless detentions should not exceed the purpose of the stop.

       “An investigative stop must be temporary and must not last longer than

                                         8
necessary to accomplish the purpose of the investigation.” Davis v. State, 947 S.W.2d

240, 243 (Tex. Crim. App. 1997), quoting Florida v. Royer, 460 U.S. 491, 500

(1983). “This limitation means that once the reason for the stop has been satisfied, the

stop may not be used as a ‘fishing expedition for unrelated criminal activity’” Id.,

quoting Ohio v. Robinette, 519 U.S. 33, 117 (1996). “Consequently, a detention that

is not temporary and reasonably related in scope to the circumstances which justified

the interference, is unreasonable and, thus violative of Appellant’s right to be free of

unreasonable searches and seizures. See U.S. CONST. AMEND. IV; Davis, supra, at

243.


III. Any reason for detaining appellant was dispelled when officers determined
appellant was not involved in the incident being investigated.

       This case is similar to Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997).

In Davis, the defendant was initially stopped for suspicion of driving while

intoxicated. Id. at 241. The officers did not detect any odor of alcohol or intoxication.

Id. Nevertheless, the officers continued to detain the defendant for unrelated

questioning. Id. Because the reason for the initial detention was resolved, the Court

of Criminal Appeals held any evidence seized during the continued detention should

have been suppressed. Id. 246; see also St. George v. State, 237 S.W.3d 720, 727

(Tex. Crim. App. 2007) (continued questioning of passenger after citation issued to

                                           9
driver improperly prolonged the detention and warranted suppression of evidence).

      Federal Courts have reached similar conclusions. In United States v. Valadez,

267 F.3d 395 (5th Cir. 2001), the defendant was stopped to see if his registration

sticker was valid and to determine if his window tinting was legal. Id. at 398. These

were the only reasons for the detention and the suspicion of both violations. Id. The

officer’s investigation dispelled any suspicion of either violation. Id. As a result,

subsequent questioning whether he had a firearm in the car exceeded the scope of that

detention. Id. The firearms had to be suppressed. Id. at 398 - 399. The same result is

necessary here because the detaining officers had already determined that Appellant

was not involved in the incident they were investigating and any evidence discovered

as a result of the continued detention should have been suppressed.


IV. Further Detention Based on Observation of Bullet Box Unwarranted.

      At trial, the State argued further detention was necessary because Officer

Royston had observed a box of bullets in the truck. (RR4 111). It is not a violation

of law to possess bullets in one’s car. The officer even agreed this was so. (RR4 60).

While at least one case has held continued detention was justified when an officer

observed a bullet in a stopped vehicle, that case had many other factors not present

in this situation. See Morfin v. State, 34 S.W.3d 664 (Tex. App. - San Antonio 2000,


                                         10
no pet.).

      In Morfin, supra, an officer observed a car stopped in a dark area of a “. . .

very high crime that was one block away from a bar that was a Mexican Mafia

hangout.” Id. at 666. The officer had responded to calls at that location “. . . for

everything from murder to public intoxication.” Id. When he spotlighted the car he

observed the defendant fumbling around with something on the floor board. Id. When

checking the occupant’s identification he observed a bullet on the center console. Id.

The court held a detention and search was justified at that point. Id. at 668.

      The facts here are very different. There was no evidence that Appellant was

in a dark high crime area. Indeed, he was at an ordinary 7-11 convenience store open

for business. (RR4 12, 50). The video also shows it was well lit. (SX MTS 1). Officer

Myers knew there were no warrants for Appellant because he had encountered him

two hours earlier in an unrelated incident. (RR4 37). Neither officer observed any

furtive movements inside the truck. While Myers did allege Appellant may have had

a gang association he did not give any basis for that opinion. (RR4 25). Indeed, later

evidence presented to the trial court indicated this information was untrue. See DX

2 (not suspected of gang membership). Under the totality of the circumstances, the

continuing detention based on observing a box of bullets was improper.




                                          11
V. Conclusion - the stop was improperly prolonged beyond its original purpose.

      Once the suspicion that justified an initial stop had been dispelled, continued

detention violates the Fourth Amendment. St. George v. State, 237 S.W.3d 720, 727

(Tex. Crim. App. 2007); Davis v. State, 947 S.W.2d 240, 246 (Tex. Crim. App. 1997);

United States v. Valadez, 267 F.3d 395, 398 - 399 (5th Cir. 2001). Here, at the point

the stopping officer concluded Appellant was not involved in the incident the officer

was investigating, there was no justification for further detention. It is not against the

law to possess bullets in a vehicle and no other factor indicated that Appellant was

committing a crime or posed a danger to the officers or any other person. The

detention was improperly extended to fish for evidence of another crime. The

evidence should have been suppressed.




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                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that

the judgment of conviction be reversed and the matter be remanded to the trial court

for a new trial.


                                                    Respectfully Submitted,



                                                    Ken Mahaffey
                                                    Counsel for Appellant
                                                    P.O. Box 684585
                                                    Austin, Texas 78768
                                                    Phone & Fax (512) 444-6557
                                                    St. Bar. No. 12830050
                                                    Ken Mahaffey@yahoo.com




    CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE

      The above signature certifies that on December 9, 2015, this document was

sent by electronic service to the Hays County D.A.’s Office, 712 S. Stagecoach Trail,

San Marcos TX 78666 and to Ernest Perez, 02016895, 295 I.H. 45 North, Huntsville,

TX 77320-8443. The above signature also certifies that this document contains 4893

words in compliance with Rule 9.4, Tex. R. App. Proc. (2015)(not to exceed 15,000

words).

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