                          PD-0834-15

                        No. ____________________

                  (Court of Appeals No. 02-14-00313-CR
                            _________________

                          IN THE COURT
                  OF CRIMINAL APPEALS OF TEXAS
                        AT AUSTIN, TEXAS
                        __________________

                           ROBERT O’BRYAN,
                                                Petitioner,
                                   v.

                         THE STATE OF TEXAS,
                                                Respondent,
                          ___________________

               PETITION FOR DISCRETIONARY REVIEW
                         ___________________

                       FROM THE SECOND DISTRICT
                          COURT OF APPEALS
                          ____________________

      ARISING IN COUNTY CRIMINAL COURT NUMBER ONE
                   DENTON COUNTY, TEXAS
                (Trial Court No. CR-2013-08057-A)
                       ___________________

                                          RICHARD GLADDEN
                                          State Bar No. 07991330
                                          Law Office of Richard Gladden
        July 7, 2015                      1200 West University, Suite 100
                                          Denton, Texas 76201
                                          940/323-9300 (voice)
                                          940/539-0093 (fax)
                                          richscot1@hotmail.com (email)

July 6, 2015                            ATTORNEY FOR PETITIONER
                       IDENTITY OF PARTIES


COURT OF APPEALS:                   SECOND JUDICIAL DISTRICT:

                                         Justice Lee Ann Daughinot;
                                         Justice Lee Gabrial; and
                                         Justice Bonnie Sudderth

TRIAL COURT:                        THE COUNTY CRIMINAL COURT
                                     NUMBER ONE,
                                     DENTON COUNTY, TEXAS:

                                          Judge Jim E. Crouch

PETITIONER:

Robert O’Bryan
C/O Richard Gladden
1200 West University Street, Suite 100
Denton, Texas 76201
Telephone: 940/323-9300
Facsimile: 940/539-0093

PETITIONER’S ATTORNEY:

Richard Gladden
State Bar No. 07991330
1200 West University Street, Suite 100
Denton, Texas 76201
Telephone: 940/323-9300
Facsimile: 940/539-0093
Email: richscot1@hotmail.com




                                     i
APPELLATE AND TRIAL ATTORNEYS FOR THE STATE OF TEXAS:

Paul Johnson                                     Lisa C. McMinn
Denton County Criminal District Attorney         State Prosecuting Attorney
                                                 P.O. Box 13046
Catherine Luft, Assistant Denton Co.             Austin TX 78711
Criminal District Attorney (appeal only)         Telephone: 512/463-1660
                                                 Facsimile: 512/463-5724
Lara Tomlin, Assistant Denton Co.
Criminal District Attorney (appeal only)

Julie Harbin, Assistant Denton Co.
Criminal District Attorney (trial only)

Denton Co. Criminal District Attorney’s Office
Denton County Courthouse, Third Floor
1450 East McKinney Street
Denton, Texas 76209
Telephone: 940/349-2600
Facsimile: 940/349-2751




                                          ii
                         TABLE OF CONTENTS
                                                                        Page

Identity of the Parties…………………………………………………..                             i

Table of Contents………………………………………………………                                   iii

Index of Authorities..…………………………………………………..                              v

Statement Regarding Oral Argument…………………………………..                         1

Statement of the Case:

   A) Prior Proceedings……………………………………………….. 2

   B) Statement of Facts……………………………………………….                              9

Question Presented for Review………………………………………...                          9

Grounds (or Reasons) for Granting Review…………………………...                    9

Argument (On “Grounds [or Reasons] for Granting Review):

1) The Second Court of Appeals’ decision below directly conflicts
   with the U.S. Supreme Court’s decision in United States v.
   Hensley, 469 U.S. 221, 232 (1985)(Tex.R.App.P. 66.3(c)).
                                                        ………..           10
2) The issue decided by the Second Court of Appeals in this case
   involves   an   important,   recurring   question   of     federal
   constitutional law that should be, but has not been, decided by
   the Texas Court of Criminal Appeals (Tex.R.App.P. 66.3(b)).
                                                       …………. 14




                                   iii
                                                                      Page

3) The Second Court of Appeals’ decision below directly conflicts
  with a near consensus among decisions rendered by other
  intermediate State appellate courts and State courts of last
  resort, as well as with at least one U.S. District Court; and the
  Court of Appeals’ peculiar departure from that consensus on
  the issue at hand has been characterized by an esteemed legal
  treatise as “bizarre” and “clearly wrong.” (Tex.R.App.P.
  66.3(f)).
                                        ……………………………...                15

4) The Panel of the Second Court of Appeals which rendered the
  decision in this case was divided, resulting in the issuance of a
  dissenting opinion (Tex.R.App.P. 66.3(e)).
                                               …………………….              17
Conclusion and Prayer for Relief……………………………………… 18

Certificate of Compliance……………………………………………... 18

Certificate of Service………………………………………………….. 19

APPENDIX:

Majority Opinion and Judgment, O’Bryan v. State, No. 02-14-00313-
CR, 2015 WL 3422093 (Tex.App. Fort Worth, May 28, 2015)(not yet
published)(“Pet.App.-A”)
                                    …………………………….. TAB ONE

Dissenting Opinion, O’Bryan v. State, No. 02-14-00313-CR, 2015
WL 3422093 (Tex.App. Fort Worth, May 28, 2015)(per Dauphinot,
J.)(not yet published)(“Pet.App.-B”)
                                            …………………… TAB TWO


                                   iv
                      INDEX OF AUTHORITIES
Cases:                                                             Page

Albo v. State, 477 So. 2d 1071 (Fla. Dist.Ct.App. 1985)…………...     15

Carter v. State, 305 A.2d 856 (Md. Ct. Spec. App. 1973)………….       16

Maryland v. Garrison, 480 U.S. 79 (1987)…………………………                 13

People v. McElhaney, 552 N.Y.S.2d 825 (N.Y.Sup.Ct 1990)……...       16

People v. Ramirez, 668 P.2d 761 (Ca. 1983)……………………….               15

State v. Mance, 918 P.2d 527 (Wash. Ct. App. 1996)……………...         16

State v. Moore, 614 A.2d 1360 (N.J. Super. Ct. App. App. 1992)…    15

Terry v. Ohio, 392 U.S. 1 (1968)…………………………………...                   13

United States v. Anderson, No. 4:07-CR-0023, 2007 WL 4732033
(N.D. Ohio June 21, 2007)(unpublished)
                                       …………………………...               16

United States v. Hensley, 469 U.S. 221 (1985)……………………..            9-11

Statutes, Codes, Rules, and Constitutional Provisions:

Article 38.23, Texas Code of Criminal Procedure………….............   2

Section 483.041, Texas Health & Safety Code……………………..              2

Rule 9.4, Texas Rules of Appellate………………………………...                  18

Fourth Amendment to the United States Constitution……………...         passim

Other Sources:

LaFave & Baum, Search and Seizure: A Treatise on the Fourth
Amendment (5th ed. 2012).
                          ………………………………………….                        13, 17

                                    v
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF

TEXAS:

       COMES NOW Petitioner Robert O’Bryan, and, pursuant to Rules 66

and 68, et seq., of the Texas Rules of Appellate Procedure, files this Petition

for Discretionary Review.

                     STATEMENT REGARDING ORAL

                                   ARGUMENT

       The Second Court of Appeals’ decision in this case involves an

important question of Federal Constitutional Law that has not been, but

should be, decided by the Court of Criminal Appeals.1 In light of the

importance of the constitutional question presented, the recurrent nature of

the question, and the relative complexity of the legal issue involved,

Petitioner respectfully submits that oral argument would significantly aid the

Court in reaching its decision on the merits and that oral argument should

therefore be granted.




1
  O’Bryan v. State, No. 02-14-00313-CR (Tex.App. Fort Worth, May 28, 2015), slip
opinion at 8 (“While four States have extended the collective knowledge doctrine to
apply prohibitively, Texas is not one of them.”)(not yet published), attached hereto in
Petitioner’s Appendix (hereinafter “Pet. App.-A”); 2015 WL 3422093, *3.


                                          1
                         STATEMENT OF THE CASE

    A) Prior Proceedings.

       On October 31, 2013, Petitioner (hereafter “Defendant”) was charged

by Complaint and Information with two counts of violating Section 483.041

of the Texas Health & Safety Code (“Possession of a Dangerous Drug”), a

Class A misdemeanor.2 On March 28, 2014, Defendant filed a motion to

suppress all evidence and testimony obtained by the State as the result of the

stop and detention of Defendant.3 In his motion Defendant alleged the initial

stop of his motor vehicle and his detention thereafter was without reasonable

suspicion and therefore violated the Fourth Amendment to the United States

Constitution, as made applicable to the States by virtue of the Fourteenth

Amendment. On this basis Defendant’s motion further contended that he

was entitled, as a matter of Texas statutory law under Article 38.23 of the

Texas Code of Criminal Procedure, to an order that rendered inadmissible all

testimony and evidence obtained by police as the result of the stop and

detention.4




2
  Clerk’s Record, 5-6. Hereinafter, references to “CR” are to the “Clerk’s Record,” which
will be followed by a specific page number within the Clerk’s Record; the Reporter’s
Record will be referred to as “RR,” followed by a volume designation, e.g. “II,” and page
number, e.g., “3.”
3
  CR, 33.
4
  CR, 33, 38.


                                           2
        On May 16, 2014, an evidentiary hearing was held on Defendant’s

motion to suppress.5 On May 29, 2014, the Trial Court entered a written

order denying Defendant’s motion.6 On July 11, 2014, the State and

Defendant entered into a plea agreement that disposed of this case without

further trial-court proceedings. Under this plea agreement the State, in

exchange for Defendant’s entry of a plea of guilty, recommended that the

Trial Court enter an order placing Defendant under community supervision

for a period of 12 months, without a finding of Defendant’s guilt, and that

the Trial Court’s order impose of a fine of $400.7 Additionally, the plea

agreement preserved Defendant’s right to appeal from the Trial Court’s

adverse ruling on his pretrial motion to suppress.8 On July 11, 2014, the Trial

Court accepted this plea agreement and entered an order placing Defendant

on community supervision without an adjudication of guilt.9

        On August 7, 2014, Defendant timely filed notice of appeal from the

Trial Court’s denial of his pre-trial motion to suppress.10 On May 28, 2015, a

divided panel of the Second Court of Appeals rendered a published decision




5
  RR II, 1.
6
  CR, 63.
7
  CR, 74.
8
  CR, 76.
9
  CR, 70.
10
   CR, 81.


                                      3
which affirmed the Trial Court’s judgment.11 This petition for discretionary

review followed.

     B) Statement of Facts.

        The material facts in this case are undisputed.12 On August 18, 2012,

Defendant’s father, Charles O’Bryan, reported to the Denton Police

Department that his motor vehicle, a 1994 Pontiac Grand Am, Texas License

Plate “DD6-M895,” had been stolen from near his residence located at 1022

West Congress in the City of Denton, Texas.13 Officer Danny Steadham of

the City of Denton Police Department (“Steadham”) was then dispatched in

response to this report and conferred with Defendant’s father at his home.14

As part of his investigation, Steadham determined that the vehicle in

question had not been reported as “towed” by any towing company.15 Upon

concluding his investigation, Steadham then requested at the end of his

report that a “Teleserve” entry be made reporting the vehicle as “stolen.”16

Apparently in accordance with Denton Police Department policy, a

11
   Pet.App.-A (Majority Opinion); Pet.App.-B (Dauphinot, J., dissenting)
12
   Pet.App.-A (Majority Opinion), at 2; 2015 WL 3422093, *1 (“The facts of this case are
undisputed.”).
13
   CR, 43. Pages 40 through 48 of the Clerk’s Record (CR, 40-48), which originally
comprised a single exhibit attached to Defendant’s motion to suppress, were admitted
into evidence at the hearing on Defendant’s motion to suppress without objection from
the State. See, RR II, 31-32; RR III. For clarity in citation, Defendant herein refers to
these documents as they appear individually paginated in the Clerk’s Record.
14
   CR, 42.
15
   CR, 43.
16
   CR 43, 46.


                                           4
dispatcher at the Denton Police Department who was “certified” to perform

this task then entered that information into the TCIC/NCIC computer data

systems.17

       On September 12, 2012, Officer Landolfo of the Denton Police

Department (“Landolfo”) was dispatched to Motorsports Towing Company

in Denton, Texas.18 Upon arrival Landolfo was informed by Officer Cottrell

(“Cottrell”), a “Parking Officer” with the Denton Police Department, that the

aforementioned vehicle had been ticketed and marked for impoundment on

September 5, 2012, and had been subsequently towed to Motorsports

Towing Company on September 12, 2012.19 After the vehicle had been

towed, Cottrell was notified that the vehicle had been reported stolen, and

Cottrell confirmed this fact in reliance on an electronic data base maintained

by law enforcement authorities.20 Landolfo then contacted Defendant’s

father, the owner of the vehicle, and advised him to contact Motorsports

Towing Company and make arrangements for the return of his vehicle.21 A

short time later Defendant’s father made such arrangements, and retrieved

the vehicle from Motorsports Towing Company.



17
   RR II, 22-23.
18
   CR, 45.
19
   CR, 45.
20
   CR, 45.
21
   CR, 45.


                                      5
       More than five (5) months later, at approximately 3:15 p.m. on

February 23, 2013, Officer Dwight Thornton of the City of Northlake Police

Department (“Thornton”) observed Defendant driving his father’s vehicle on

Interstate 35W traveling northbound.22 Although he observed nothing

unusual about Defendant’s driving and did not observe Defendant commit

any traffic violation or criminal offense, Thornton “ran a routine records

check” on the license plate of the vehicle using his in-car computer.23

Thornton then received a “return” on that inquiry which notified him that the

vehicle being operated by Defendant (Defendant’s father’s vehicle) was a

“stolen” vehicle.24 The Defendant was thereupon stopped by Thornton

without incident, and as the result of this stop and detention, Defendant was

arrested and the contraband made the basis of the present criminal case

against Defendant was obtained by Thornton during a search of the vehicle.25

       Later in the day of Defendant’s arrest on February 23, 2013,

Defendant’s sister, Lori Reeves (“Reeves”), contacted the Denton Police

Department and spoke with Sergeant Frank Padgett (“Padgett”).26 On being

informed by Reeves that the vehicle in question had been recovered by

Denton Police more than five (5) months earlier, Padgett after independent
22
   CR, 47.
23
   CR, 47; RR II, 8, 16-17.
24
   CR, 47; RR II, 21-22.
25
   CR, 47; RR II, 15.
26
   CR, 46


                                     6
inquiry promptly discovered that “[t]he vehicle had not been removed from

TCIC/NCIC when it was recovered in September 2012.”27 As the result of

this discovery, Defendant was subsequently released from the Denton

County Jail, where he had been transported after his arrest, without being

charged with felony theft of the vehicle. The Defendant was, however,

required to post bail to secure his appearance and answer to the charge made

the basis of the present case, i.e., “Possession of a Dangerous Drug.”28

       Testimony at the hearing on Defendant’s motion to suppress revealed

that while dispatchers with the Denton Police Department are responsible for

removing stolen vehicle reports from the TCIC/NCIC systems when they are

recovered, Denton Police Department officers and investigators are

responsible for notifying Denton dispatchers when that should be done.29

Landolfo’s supplemental report (CR, 45), which recorded recovery of the

vehicle, was not in the “paper” file kept by the Denton Police Department

either when the “stolen vehicle” was “confirmed” at the time of Defendant’s

arrest on February 22, 2014, or the following day when Padgett conducted

his own independent investigation into whether the vehicle had been




27
   CR, 46
28
   CR, 5-6, 13.
29
   RR II, 22-24, 26.


                                       7
recovered five months earlier.30 Padgett was apparently able to locate

Landolfo’s supplemental report (disclosing that the vehicle had been

recovered on September 12, 2014) using the “RMS,” which is a system into

which Denton Police officers and investigators enter their reports.31 Denton

Police Department dispatchers, however, do not have access to the RMS

system.32

       Ultimately, testimony at the hearing on Defendant’s motion to

suppress fell short of establishing, conclusively, whether the error that

resulted in Defendant’s detention was the fault of Landolfo, or was instead

the fault of a dispatcher at the Denton Police Department who was on duty at

the time the vehicle was recovered on September 12, 2013.33 In either case,

it is undisputed that the error which resulted in Defendant’s detention five

months after the vehicle had been recovered is assignable to the Denton

Police Department.34




30
   RR II, 23-24, 29.
31
   RR II, 29.
32
   RR II, 28.
33
   RR II, 230 (assigning error to Landolfo), but see RR II, 32-33 (“it could have been
Dispatch” that committed the error).
34
   RR II, 33-34.


                                          8
                 QUESTION PRESENTED FOR REVIEW

        Whether the “Collective Knowledge” Doctrine under the Fourth

Amendment, Approved by the U.S. Supreme Court in United States v.

Hensley, 469 U.S. 221, 232 (1985), Constitutionally Permits the Seizure of

a Motorist When the Law Enforcement Agency Confirming the Existence

of an Electronic “Stolen Vehicle” Report, at the Time of the Seizure, is in

Possession of Information that Conclusively Dispels “Reasonable

Suspicion” to Support the Stop.

         GROUNDS (OR REASONS) FOR GRANTING REVIEW

1) The Second Court of Appeals’ decision below directly conflicts with the

     U.S. Supreme Court’s decision in United States v. Hensley, 469 U.S. 221,

     232 (1985).35

2) The issue decided by the Second Court of Appeals in this case involves

     an important, recurring question of federal constitutional law that should

     be, but has not been, decided by the Texas Court of Criminal Appeals.36




35
   Tex.R.App.P. 66.3(c)(“[W]hether a court of appeals has decided an important question
of… federal law in a way that conflicts with the applicable decisions of…the Supreme
Court of the United States.”).
36
   Tex.R.App.P. 66.3(b)([W]hether a court of appeals has decided an important question
of …federal law that has not been, but should be, settled by the Court of Criminal
Appeals.”)


                                          9
3) The Second Court of Appeals’ decision below directly conflicts with a

     near consensus among decisions rendered by other intermediate State

     appellate courts and State courts of last resort, as well as with at least one

     U.S. District Court; and the Court of Appeals’ peculiar departure from

     that consensus on the issue at hand has been characterized by an

     esteemed legal treatise as “bizarre” and “clearly wrong.”37

4) The Panel of the Second Court of Appeals which rendered the decision in

     this case was divided, resulting in the issuance of a dissenting opinion.38

                                   ARGUMENT

1) The Second Court of Appeals’ decision below directly conflicts with the

     U.S. Supreme Court’s Decision in United States v. Hensley, 469 U.S.

     221, 232 (1985).

        Under what has become known as the “collective knowledge”

doctrine the U.S. Supreme Court has held that when a police officer in the

field, without personal knowledge of facts that would justify a detention, is

alerted by radio to the existence of a “wanted flyer” issued by a police

department, certain circumstances may justify the detention of a person in


37
   Tex.R.App.P. 66.3(f)(“[W]hether a court of appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far sanctioned such a departure
by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of
supervision.”)
38
   Tex.R.App.P. 66.3(e)(“[W]hether the justices of a court of appeals have disagreed on a
material question of law necessary to the court’s decision.”)


                                           10
order to “confirm or dispel” a reasonable belief that the person is, or has

been, engaged in criminal activity. United States v. Hensley, 469 U.S. 221

(1985). In Hensley the Court further ruled however, that the constitutionality

of such a detention does not turn solely on the objective reasonableness of

the patrol officer’s reliance on the existence of the “wanted flyer.” Rather,

the legality of such a detention depends, in this context, on whether “the

police who issued the flyer or bulletin possessed a reasonable suspicion

justifying a stop.” Id., 469 U.S. at 233 (italics in original). In other words,

“[i]f the flyer has been issued in the absence of a reasonable suspicion, then

a stop in the objective reliance upon it violates the Fourth Amendment.” Id.,

469 U.S. at 232-233.

      In the present case the Second Court of Appeals has ruled that a stop

in objective reliance upon an electronic “stolen vehicle” report does not

violate the Fourth Amendment even when the law enforcement agency

confirming the existence of the electronic “stolen vehicle” report, at the time

of the stop, is without “reasonable suspicion” and is in possession of

information that conclusively dispels “reasonable suspicion” to support the

stop. The Second Court of Appeals’ decision warrants review by the Court

of Criminal Appeals, as “it has decided an important question of… federal




                                      11
law in a way that conflicts with the applicable decisions of…the Supreme

Court of the United States.” Tex.R.App.P. 66.3(c).

      The “importance” of the Second Court of Appeals’ decision in the

present case, moreover, cannot be understated, as it seriously endangers the

liberty of virtually all motorists within the State of Texas. As recently

reported in the Denton Record-Chronicle newspaper, law enforcement

authorities Statewide, including those located in Denton County, Texas,

have deployed “Automated License Plate Reader Systems” which “allow

law enforcement officers to capture images of license plates and

instantaneously compare them with millions of ‘Hot List’ records to identify

vehicles of interest.”39 While a spokesperson for the City of Denton Police

Department (the agency responsible for the error in the present case) assured

readers that “if you’re not doing anything wrong, you don’t have to worry

about it,”40 the facts of the present case demonstrate precisely the contrary.

      In the present case Defendant does not dispute that reasonable

suspicion existed to believe the vehicle was in fact “stolen,” at the time that

Officer Steadham entered the “stolen vehicle” report into the TCIC/NCIC

computer systems. What Defendant does contend is that, under the

39
   McPhate, New Tech Keeps Vigilant Eye (Denton Record-Chronicle, Oct. 11, 2014),
available      online      at:       http://www.dentonrc.com/local-news/local-news-
headlines/20141011-new-tech-keeps-vigilant-eye.ece (last viewed 7/3/2015).
40
   Ibid.


                                        12
“collective knowledge” doctrine, reasonable suspicion no longer existed at

the time Defendant was stopped in the vehicle, and that the stop and

detention of Defendant therefore violated the Fourth Amendment.

       As numerous courts have recognized in a variety of circumstances,

under the “collective knowledge” doctrine the fact that a “wanted flyer” (or

“BOLO” bulletin for a stolen vehicle) was supported by reasonable

suspicion at the time it was issued does not end the Fourth Amendment

inquiry.41 Like the validity of an arrest or search without a warrant, the

validity of a warrantless police detention under the Fourth Amendment must

be judged in light of the information available to (or known by) law

enforcement authorities at the time of the detention. Terry v. Ohio, 392 U.S.

1, 21-22 (1968)(Fourth amendment requires that “the facts be judged against

an objective standard: would the facts available to the officer at the moment

of the seizure [justify the detention]?”); Cf., Maryland v. Garrison, 480 U.S.

79, 85 (1987)(constitutional “reasonableness” of warrant’s execution must

be judged in light information available to officers “at the time they acted.”).

In other words, the information to be considered when determining whether

a Fourth Amendment violation has occurred in the present case is not limited
41
   See, 2 LaFave & Baum, Search and Seizure: A Treatise on the Fourth Amendment,
§3.5(d), pp. 358-364 (5th ed. 2012)(constitutional “problems arise when [police] records
do not accurately reflect the current situation”); and see also, 4 LaFave & Baum, supra,
§9.5(j), p. 824 (to avoid Fourth Amendment violation “it will not inevitably suffice that a
reasonable suspicion existed at the source at the time the bulletin was issued”).


                                            13
to information known by law enforcement at the time the motor vehicle was

reported stolen on August 18, 2012; and the judicial inquiry is not confined

to the information personally known by the police officer who actually

detained Defendant five months later on February 23, 2013. Thus, when

assessing whether the detention of Defendant was supported by reasonable

suspicion the Court of Appeals was obliged by U. S. Supreme Court

precedent to consider the “collective knowledge” of all law enforcement

authorities at the time the stop occurred, including police knowledge that the

vehicle had been recovered and returned to its owner prior to the stop. Its

failure to do so eviscerates the Fourth Amendment.

2) The issue decided by the Second Court of Appeals in this case involves

      an important, recurring question of federal constitutional law that

      should be, but has not been, decided by the Texas Court of Criminal

      Appeals.

         As the Second Court of Appeals itself observed in its decision below,

“[w]hile four States have extended the collective knowledge doctrine to

apply prohibitively, Texas is not one of them.”42 This fact also warrants

review of the Second Court of Appeals’ decision in this case.            See,

Tex.R.App.P. 66.3(b)(“[W]hether a court of appeals has decided an


42
     Pet.App.-A, at 8; 2015 WL 342209, *3.


                                             14
important question of …federal law that has not been, but should be, settled

by the Court of Criminal Appeals.”)

3) The Second Court of Appeals’ decision below directly conflicts with a

     near consensus among decisions rendered by other intermediate State

     appellate courts and State courts of last resort, as well as with at least

     one U.S. District Court; and the Court of Appeals’ peculiar departure

     from that consensus on the issue at hand has been characterized by an

     esteemed legal treatise as “bizarre” and “clearly wrong.”

        As observed by the Supreme Court of California in a related context

(invalidating arrest due to unconstitutional reliance on recalled warrant), the

principle invoked by Defendant may be succinctly stated as follows:

        “The ‘fellow officer’ or ‘collective knowledge’ rule cannot
        function solely permissively, to validate conduct otherwise
        unwarranted; the rule also operates prohibitively, by imposing
        on law enforcement the responsibility to disseminate only
        accurate information.”43

        In several State Court decisions, and at least one U.S. District Court

decision, the foregoing rule has been specifically applied to constitutionally


43
  People v. Ramirez, 668 P.2d 761, 765 (Ca. 1983). As previously stated, in addition to
the decision in Ramirez, this application of the “collective knowledge” doctrine has been
widely followed by numerous courts in a variety of circumstances. See e.g., State v.
Moore, 614 A.2d 1360 (N.J. Super. Ct. App. App. 1992)(invalidating arrest in reliance on
vacated bench warrant); Albo v. State, 477 So. 2d 1071 (Fla. Dist.Ct.App.
1985)(invalidating arrest in reliance on stale computer data erroneously stating
defendant’s driver’s license continued to be suspended); and see also id., 477 So.2d at
1073 n. 2 (listing “unanimous authority on this point”).


                                           15
invalidate detentions relying on stale information erroneously reporting that

a motor vehicle continued to be “stolen” when the vehicle had, in fact, been

previously recovered and returned to its rightful owner, as in the present

case. See, Carter v. State, 305 A.2d 856 (Md. Ct. Spec. App. 1973); People

v. McElhaney, 552 N.Y.S.2d 825 (N.Y.Sup.Ct 1990); State v. Mance, 918

P.2d 527 (Wash. Ct. App. 1996); and, United States v. Anderson, No. 4:07-

CR-0023, 2007 WL 4732033 (N.D. Ohio June 21, 2007)(unpublished). No

Texas authorities appear to have addressed the constitutional question.

      In the present case it is undisputed that, at the time Defendant’s

vehicle was stopped, information in possession of law enforcement

authorities conclusively established that five months earlier the vehicle in

question had been returned to its rightful owner and was therefore no longer

“stolen.” The Court of Appeals’ in the present case nonetheless concluded

that the police error after recovery of the vehicle, and the subsequent five-

month delay in correcting police records to show that the “stolen” vehicle

had been recovered, is constitutionally irrelevant because: 1) the police

simply forgot to cancel their teletype in the N.C.I.C. computer; and 2) these

errors were unknown to the officer who relied upon the erroneous record

when initiating the stop of Defendant. This very mode of legal analysis has

been properly characterized as not only “clearly wrong,” but “bizarre” by



                                     16
one esteemed legal treatise. See, 2 LaFave & Baum, Search and Seizure: A

Treatise on the Fourth Amendment, §3.5(d), pp. 363-364 (5th ed. 2012). In

this regard, the Second Court of Appeals truly “has so far departed from the

accepted and usual course of judicial proceedings, [and has] so far

sanctioned such a departure by a lower court, as to call for an exercise of the

Court of Criminal Appeals’ power of supervision,” Tex.R.App.P. 66.3(f).

4) The Panel of the Second Court of Appeals which rendered the decision

      in this case was divided, resulting in the issuance of a dissenting

      opinion.

          In her dissenting opinion Justice Dauphinot has candidly expressed

her inability to “understand the majority’s hypothesis that in Texas, imputed

knowledge may only expand the authority of the prosecution but may not

protect the constitutional rights of the accused.”44 The Petitioner, and no

doubt many others, shares Justice Dauphinot’s view. Yet the majority’s

decision is not merely a “hypothesis.” Rather, it constitutes precedent for a

disturbing new legal maxim which holds that in Texas law it is now “Heads:

suspicionless police detention wins; Tails: individual privacy loses.” The

issue presented by the instant petition involves “a material question of law

necessary to” the majority’s decision below, and it is one on which the

44
     Pet.App.-B, at 1 (Dauphinot, J., dissenting).


                                               17
Justices below disagreed. This disagreement further warrants an exercise of

the   Court’s   power    of   discretionary    review.   See,   Tex.R.App.P.

66.3(e)(“[W]hether the justices of a court of appeals have disagreed on a

material question of law necessary to the court’s decision.”)

                     CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, this Petition for

Discretionary Review should be granted.

                                           Respectfully submitted,

                                              /s/Richard Gladden
                                              Texas Bar No. 07991330
                                              1200 West University, Suite 100
                                              Denton, Texas 76201
                                              940/ 323-9307 (voice)
                                              940/539-0093 (fax)
                                              richscot1@hotmail.com (email)
                                              Attorney for Petitioner

                   CERTIFICATE OF COMPLIANCE

      This is to certify, pursuant to Rule 9.4(i)(3) of the Texas Rules of

Appellate Procedure, that this petition was computer-generated; that it

contains less than 3,343 words (including the items excepted by

Tex.R.App.P. 9.4(i)(1)); and that it therefore complies with the 4,500 word

limitation stated in Rule 9.4(i)(2)(D) of the Texas Rules of Appellate

Procedure.

                                              /s/Richard Gladden

                                      18
                     CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing brief

was served by hand delivery on the Attorneys of Record for the State of

Texas, Denton County Criminal District Attorney Paul Johnson, at his

office located at 1450 East McKinney, Denton, Texas 76201, on this 6th day

of July, 2014; by U.S. mail on the State Prosecuting Attorney, Lisa C.

McMinn, directed to her office mailing address, to wit: P.O. Box P.O. Box

13046, Capitol Station, Austin, Texas 78711, on this 6th day of July, 2015;

and on both of the foregoing counsel, on the same date, using the electronic

filing system operated by TexFile; all in accordance with Rules 9.5 and

68.11 of the Texas Rules of Appellate Procedure.

                                            /s/Richard Gladden




                                    19
     PETITION APPENDIX “A”
                       TO
PETITION FOR DISCRETIONARY
                   REVIEW
Majority Opinion and Judgment, O’Bryan v. State,
   No. 02-14-00313-CR, 2015 WL 3422093
     (Tex.App. Fort Worth, May 28, 2015)
               (not yet published)
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00313-CR


ROBERT O'BRYAN                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
                   TRIAL COURT NO. CR-2013-08057-A

                                    ----------

                                  OPINION

                                    ----------

                                I. Introduction

      In two issues, Appellant Robert O’Bryan appeals the denial of his motion to

suppress, arguing that his stop and detention was without reasonable suspicion

and therefore violated the Fourth Amendment to the U.S. Constitution.        We

affirm.
                                 II. Background

      The facts of this case are undisputed. On February 22, 2013, Northlake

Police Sergeant Dwight Thornton ran a routine records check on a green four-

door Pontiac through the National Crime Information Center (NCIC) and the

Texas Crime Information Center (TCIC); a report from Denton Police Department

(Denton P.D.) indicated that the vehicle was reported stolen. After receiving the

report, Sergeant Thornton contacted Denton County Sheriff Department Dispatch

to verify the information.    Dispatch confirmed that the car was stolen, so

Sergeant Thornton requested additional units. Two other units arrived, and the

officers performed a felony stop on the vehicle. O’Bryan was the only person in

the car.

      After he was detained, Sergeant Thornton reported the VIN number of the

vehicle to Denton County Dispatch, who then matched it with their records and

confirmed with Denton P.D. Dispatch that the vehicle was stolen. While waiting

on the confirmation, Sergeant Thornton began investigating the unauthorized use

of a motor vehicle offense. Upon searching the vehicle, he found a pill bottle with

multiple pills inside and no label on the outside.       Upon further inspection,

Sergeant Thornton discovered the pills to be prescription drugs for which

O’Bryan did not have a valid prescription. O’Bryan was arrested and the car was

impounded.

      As it turned out, the car was not stolen.       Although O’Bryan’s father,

Charles O’Bryan, reported the vehicle stolen in August 2012, it was recovered


                                        2
one month later, in September 2012. O’Bryan filed a motion to suppress all of

the evidence, arguing, in essence, that since the stolen vehicle information

Sergeant Thornton relied upon was erroneous, the stop was without reasonable

suspicion, thereby violating the Fourth Amendment.

      At the suppression hearing, Sergeant Thornton testified to the facts leading

up to O’Bryan’s arrest, and Denton P.D. Communications Officer Patricia

Killebrew testified about her efforts to confirm the status of the vehicle as stolen.

      Officer Killebrew testified that on February 22, she received a dispatch

requesting confirmation of the stolen vehicle. She ran the plate number through

“the system,” and it confirmed that the car was stolen. She then pulled the actual

paper report, which further verified the car was stolen. The following day, Officer

Killebrew learned from Sergeant Frank Padgett that the information she had

obtained and relayed regarding the stolen vehicle was erroneous.1

      Officer Killebrew also provided testimony about departmental policies

regarding the input and removal of data into NCIC.            She stated that when

Dispatch confirms a vehicle as stolen and the officer recovers it in the field, like in

this case, then Dispatch removes the vehicle from NCIC at the time of




      1
        According to the record, her conversation with Sergeant Padgett was
prompted by a telephone inquiry the Sergeant had received from O’Bryan’s
sister, Lori Reeves, who informed Sergeant Padgett that although the impounded
vehicle had at one time been reported stolen, it had since been recovered.
Sergeant Padgett then followed up on this conversation with Officer Killebrew.


                                          3
confirmation.2 In the alternative, if a vehicle is recovered, but there has been no

call for confirmation, then the officer creates a supplemental report that is

forwarded to Dispatch, and Dispatch removes the vehicle from NCIC upon

receipt of the report. In this case, although an officer prepared a supplemental

report when the car was recovered, the NCIC record was not updated.3

      Officer Killebrew testified that the mistake in not removing this vehicle from

NCIC could have occurred in one of two ways. Either the officer never forwarded

the supplemental report to Dispatch, or he did deliver the supplemental report

and Dispatch failed to act on it. Regardless of who made the mistake, Officer

Killebrew confirmed that the error occurred within the Denton P.D.

          The trial court denied O’Bryan’s motion to suppress and entered findings

of fact and conclusions of law.

                                  III. Suppression

      O’Bryan does not dispute that reasonable suspicion existed at the time the

officer entered the stolen vehicle report into NCIC. However, O’Bryan argues

that applying the collective knowledge doctrine, reasonable suspicion ceased to

exist once the vehicle was recovered. Therefore, O’Bryan argues, because



      2
      Officer Killebrew stated that she removed the vehicle from NCIC
immediately after she received Sergeant Thornton’s call for confirmation.
      3
        Nor was the supplemental report included among the documents available
to Officer Killebrew—on the computer or in paper form—in the file she reviewed
to confirm the stolen vehicle.


                                         4
reasonable suspicion no longer existed when Sergeant Thornton pulled him over,

O’Bryan’s Fourth Amendment rights were violated.

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      When the trial court makes explicit fact-findings, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling,

supports those fact-findings. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim.

App. 2006).    We then review the trial court’s legal ruling de novo unless its

explicit fact-findings that are supported by the record are also dispositive of the

legal ruling. Id. at 818. We must uphold the trial court’s ruling if it is supported

by the record and correct under any theory of law applicable to the case, even if

the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d

736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404

(Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).


                                         5
B. Applicable Law

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an

alleged Fourth Amendment violation, the defendant bears the initial burden of

producing evidence that rebuts the presumption of proper police conduct.

Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.

Crim. App.), cert. denied, 558 U.S. 1093 (2009).      A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable. Id. at 672–73; Torres v.

State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005).

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law. Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable

suspicion exists when, based on the totality of the circumstances, the officer has


                                        6
specific, articulable facts that when combined with rational inferences from those

facts, would lead him to reasonably conclude that a particular person is, has

been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This

is an objective standard that disregards any subjective intent of the officer

making the stop and looks solely to whether an objective basis for the stop

exists. Id.

C. Analysis

      O’Bryan asserts that when assessing whether the detention of O’Bryan

was supported by reasonable suspicion we must consider the “collective

knowledge” of all law enforcement authorities at the time the stop occurred,

including police knowledge that the vehicle had been recovered and returned to

its owner prior to the stop. As will be discussed below, theoretically the collective

knowledge doctrine could be applied either permissively or prohibitively. In this

case, O’Bryan seeks a prohibitive application of the doctrine.

      The collective knowledge doctrine, or the fellow officer rule, is the “principle

that an investigative stop or an arrest is valid even if the law-enforcement officer

lacks personal knowledge to establish reasonable suspicion or probable cause[,]

as long as the officer is acting on the knowledge of another officer and the

collective knowledge of the law-enforcement office.” Black’s Law Dictionary 735

(10th ed. 2014). This doctrine was first discussed by the United States Supreme

Court in 1971 in the context of probable cause to support an arrest, see Whiteley

v. Warden, 401 U.S. 560, 91 S. Ct. 1031 (1971), and was extended by the Court


                                          7
in 1985 to encompass reasonable suspicion to detain a person briefly in an

attempt to obtain further information, see U.S. v. Hensley, 469 U.S. 221, 105 S.

Ct. 675 (1985).    Both Whiteley and Hensley apply the collective knowledge

doctrine in a permissive manner. The Texas Court of Criminal Appeals has also

applied this doctrine, but only permissively as well. See Hoag v. State, 728

S.W.2d 375, 380 (Tex. Crim. App. 1987); Woodward v. State, 668 S.W.2d 337,

344 (Tex. Crim. App. 1982) (op. on reh’g).

      O’Bryan points out that while the collective knowledge doctrine has been

applied only permissively in Texas, other jurisdictions also apply the doctrine

prohibitively:

             The “fellow officer” or “collective knowledge” rule cannot
      function solely permissively, to validate conduct otherwise
      unwarranted; the rule also operates prohibitively, by imposing on law
      enforcement the responsibility to disseminate only accurate
      information.

People v. Ramirez, 668 P.2d 761, 765 (Cal. 1986). In urging this court to permit

a prohibitive application of the doctrine in this case, O’Bryan essentially argues

that if collective knowledge can be used to form a basis to find reasonable

suspicion, then collective knowledge can also be used to negate reasonable

suspicion.

      While four states4 have extended the collective knowledge doctrine to

apply prohibitively, Texas is not one of them.


      4
       California, Maryland, New York, and Washington


                                         8
      Whether as a repository for collective knowledge or as an historically

trustworthy source of information, NCIC—and its records—has received

widespread acceptance as providing a sufficient basis for both probable cause

and reasonable suspicion. See Delk v. State, 855 S.W.2d 700, 711 (Tex. Crim.

App.), cert. denied, 510 U.S. 982 (1993) (holding that information obtained from

the NCIC system provides an investigating officer with reasonable suspicion to

detain a driver and conduct further investigation); Stevens v. State, 667 S.W.2d

534, 538 (Tex. Crim. App. 1984) (holding that the NCIC stolen-vehicle return

provided independent probable cause to arrest appellant for theft of the

automobile); see also Williams v. State, No. 14-08-00268-CR, 2009 WL

3643513, at *4 (Tex. App.—Houston [14th Dist.] Nov. 5, 2009, pet. ref’d) (mem.

op., not designated for publication) (holding that NCIC provided reasonable

suspicion to stop appellant who was driving a vehicle that was reported stolen);

Nevels v. State, No. 14-13-00497-CR, 2004 WL 769804, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 13, 2004, no pet.) (mem. op., not designated for

publication) (holding that an NCIC report that a car was stolen is sufficient to

support probable cause); Nunnally v. State, No. 11-03-00237-CR, 2004 WL

292051, at *2 (Tex. App.—Eastland Feb. 12, 2004, pet. ref’d) (opinion, not

designated for publication) (noting that the officer had probable cause to arrest

the appellant based on computer information he received); Givens v. State, 949

S.W.2d 449, 452 (Tex. App.—Fort Worth 1997, pet. ref’d) (recognizing that the

officer’s reliance on NCIC provided probable cause for the arrest).


                                        9
      And while no Texas courts have directly addressed the prohibitive

application of the collective knowledge doctrine when considering reasonable

suspicion or probable cause, in considering NCIC information as a basis for

probable cause and reasonable suspicion, they have addressed the possibility of

error and its effect on these burdens. See Brown v. State, 986 S.W.2d 50, 54

(Tex. App.—Dallas 1999, no pet.) (holding that “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,” and an officer may rely on the information even if it is

later proved to be erroneous); see also Thornton v. State, No. 10-12-00431-CR,

2014 WL 813745, at *2 (Tex. App.—Waco Feb. 27, 2014, no pet.) (mem. op., not

designated for publication) (holding actual ownership of a vehicle was not

relevant to the detention of the appellant because the officer had reasonable

suspicion to detain appellant based on NCIC information, even if it was later

proven to be incorrect), Cardiel v. State, No. 03-11-00220-CR, 2012 WL

2077908, at *1 n.1 (Tex. App.—Austin, June 7, 2012, no pet.) (mem. op., not

designated for publication) (explaining that even though appellant’s stop was

based on a stolen vehicle report that turned out to be incorrect, the fact the report

was mistaken did not render the stop or arrest invalid); Mount v. State, 217

S.W.3d 716, 728 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (op. on reh’g)

(“An investigatory detention or an arrest is not invalid merely because an officer

relies upon reasonably trustworthy information that later proves to be




                                         10
erroneous.”); Givens, 949 S.W.2d at 451 (holding that extrinsic proof of NCIC

accuracy is not required to overcome a motion to suppress).

       In Brown v. State, the Fifth Court of Appeals states that

       [I]t is well established an arrest is not invalid merely because an
       officer relies on reasonably trustworthy information which later
       proves to be erroneous. Therefore, 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. On the basis of the current
       record, we have no reason to question whether stolen vehicle
       information obtained from the NCIC is reasonably trustworthy.
       Accordingly, we conclude the NCIC information available to the
       officers here established probable cause for the warrantless arrest.

986 S.W.2d at 53–54 (internal citations omitted).

       For the reasons stated above, we hold that the NCIC report was sufficient

to establish reasonable suspicion and therefore conclude that O’Bryan’s

constitutional rights were not violated by his warrantless arrest. We overrule his

first issue.5

                                  IV. Conclusion

       Having overruled O’Bryan’s dispositive issue, we affirm the trial court’s

judgment.


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE


       5
       Having overruled O’Bryan’s first issue, we need not reach his second
issue. See Tex. R. App. P. 47.1.




                                         11
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: May 28, 2015




                                      12
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00313-CR

Robert O'Bryan                            §    From County Criminal Court No. 1

                                          §    of Denton County (CR-2013-08057-
                                               A)
                                          §

v.                                        §    May 28, 2015

                                          §    Opinion by Justice Sudderth

                                          §    Dissent by Justice Dauphinot

The State of Texas                        §    (p)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS

                                       By _/s/ Bonnie Sudderth________________
                                          Justice Bonnie Sudderth
    PETITION APPENDIX “B”
                      TO
PETITION FOR DISCRETIONARY
                 REVIEW
    Dissenting Opinion (Per Dauphinot, J.)
O’Bryan v. State, No. 02-14-00313-CR, 2015 WL
 3422093 (Tex.App. Fort Worth, May 28, 2015)
               (not yet published)
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00313-CR


ROBERT O’BRYAN                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
               TRIAL COURT NO. CR-2013-08057-A

                                     ----------

                          DISSENTING OPINION

                                     ----------

      Respectfully, I cannot join the thoughtful majority. I do not understand the

majority’s hypothesis that in Texas, imputed knowledge may only expand the

authority of the prosecution but may not protect the constitutional rights of the

accused.

      The obligations stemming from imputed knowledge within the prosecution

team have long been recognized in Texas courts.           In 1989, in an early
exoneration case, the Texas Court of Criminal Appeals concluded that Randall

Dale Adams had been convicted of capital murder on perjured testimony. 1 The

Texas Court of Criminal Appeals explained,

              The issue of Miller’s perjurious testimony regarding her
      identification of the applicant involves both the suppression of
      evidence favorable to the accused and the State’s knowing use of
      false testimony. During the applicant’s trial, after the three rebuttal
      witnesses had testified and Miller had identified the applicant, the
      State closed. The applicant’s attorney then belatedly requested a
      hearing outside the presence of the jury in order to determine
      whether Miller’s identification testimony had been tainted by an
      improper photo spread or lineup. The trial judge observed that the
      request was untimely because Miller had already identified the
      applicant. Nevertheless, he permitted the hearing to allow the
      applicant to perfect a bill of exception. It was during this hearing that
      Miller perjured herself by testifying falsely that she had identified the
      applicant in a lineup and that no one had influenced her in her
      identification. After the hearing the trial judge commented that he
      considered the issue of a tainted identification to have been waived
      by the defense, but emphasized that the defense had the right to go
      into it in front of the jury. In this regard it must be remembered that
      at this time the applicant had no knowledge of the truth about the
      identification or the prior inconsistent statement.

             Following his comments to counsel, the judge concluded[] that
      Miller’s identification testimony “was not influenced either by the
      witness having seen photographs of the defendant or by the witness
      having viewed the defendant in a lineup of people conducted by law
      enforcement authorities.” He further stated: “The Court finds there
      is no taint, that the identification of the witnesses in court is based
      solely on the witnesses having viewed the defendant at the time and
      place where the offense was committed as alleged in the
      indictment.” He also comment[ed] that irrespective of his factual
      findings a waiver of a defect in the identification had occurred.

           Mulder testified that he did not know Miller had identified
      someone other than the appellant in the lineup, nor did he know that

      1
      Ex parte Adams, 768 S.W.2d 281, 290–91 (Tex. Crim. App. 1989).


                                         2
      the officer in charge of the lineup told her who she should have
      identified. However, this is insufficient to remove the taint of the
      prosecution’s knowing use of perjured testimony. As previously
      noted, the United States Supreme Court has expressly recognized
      that when confronted with perjurious testimony the prosecutor has a
      duty to correct it. Further, whether the prosecutor had actual
      knowledge of the falsity of the testimony is irrelevant. If the
      prosecutor should have known is sufficient. Thus, the Supreme
      Court has endorsed the imputation of knowledge, at least from one
      prosecutor to another. However, the extent of this imputation of
      knowledge has been expanded. In Williams v. Griswald, the court of
      appeals stated: “It is of no consequence that the facts pointed to
      may support only knowledge of the police because such knowledge
      will be imputed to state prosecutors.” In United States v. Antone, the
      court of appeals observed that it has “declined to draw a distinction
      between different agencies under the same government, focusing
      instead upon the ‘prosecution team’ which includes both
      investigative and prosecutorial personnel.”

             The Dallas police officer that “helped” Miller was by her own
      admission in charge of the lineup. Consequently, as a part of the
      investigating team his knowledge of Miller’s lack of identification at
      the lineup and his assistance to her is imputed to Mulder.
      Consequently, when Miller testified that she had identified the
      applicant in a lineup Mulder had an obligation to correct the perjured
      testimony.2

The Adams court “declined to draw a distinction between different agencies

under the same government, focusing instead upon the ‘prosecution team’ which

includes both investigative and prosecutorial personnel.”3




      2
       Id. at 291–92 (citations omitted).
      3
       Id. at 292; see also Ex parte Castellano, 863 S.W.2d 476, 484–85 (Tex.
Crim. App. 1993) (holding that peace officer who was not assigned to an arson
case but who took it upon himself to assist and engage in perjury for private
reasons was nevertheless acting under color of law and part of the prosecutorial
team).


                                            3
      The imputed knowledge rule is still alive and well. In 2014, the Texas

Court of Criminal Appeals stated,

             In Moulton, the Supreme Court indicated that a Massiah
      violation occurs only if the State “knowingly circumvented” the right
      to counsel. The court of appeals’s opinion suggests that a knowing
      circumvention did not occur because Midland law enforcement was
      unaware that appellant had counsel. Appellant’s position is that the
      knowledge of Ector County law enforcement should be imputed to
      Midland County law enforcement.

            Appellant has the better of the argument. In Michigan v.
      Jackson, the Supreme Court held that the State is responsible, in
      the Sixth Amendment context, for the knowledge of all of its actors:

            Sixth Amendment principles require that we impute the
            State’s knowledge from one state actor to another. For
            the Sixth Amendment concerns the confrontation
            between the State and the individual. One set of state
            actors (the police) may not claim ignorance of
            defendants’ unequivocal request for counsel to another
            state actor (the court).

            In so concluding, the Supreme Court cited and quoted from
      Moulton, a Massiah case. It is true that, in Montejo v. Louisiana, the
      Supreme Court overruled Jackson insofar as it imposed a
      prophylactic rule forbidding interrogation once the accused has
      requested counsel. But the Montejo decision expressly stated that it
      was not concerned with the substantive scope of the Sixth
      Amendment right to counsel, and in so saying it cited both Moulton
      and Massiah. We do not agree with the court of appeals that the
      Supreme Court’s decision to overrule Jackson constituted an
      abandonment of the rule of imputing knowledge to the State.4

      The majority is correct that, generally, the police may detain a person

based on an entry in NCIC. But in the case now before this court, the Denton


      4
        Rubalcado v. State, 424 S.W.3d 560, 573–74 (Tex. Crim. App. 2014)
(citations omitted).


                                        4
police department was aware that the car was not stolen and that there should

be no NCIC entry reporting that it was stolen. No one knows why the stolen

vehicle report was not properly withdrawn. But the knowledge of the Denton

police department is imputed to Northlake police.5 Consequently, police had no

reasonable suspicion to support their original detention of Appellant.

      The majority appears to suggest a good faith exception to the warrant

requirement when the police rely on NCIC. But Texas recognizes only the good

faith exception found in the Texas Code of Criminal Procedure:

      It is an exception to the provisions of Subsection (a) of this Article
      that the evidence was obtained by a law enforcement officer acting
      in objective good faith reliance upon a warrant issued by a neutral
      magistrate based on probable cause.6

      In the case now before this court, there is no warrant, and there is no

requirement that a neutral magistrate screen the information before it can be

entered on NCIC. Under the facts of this case, good faith does not justify the

unlawful detention of Appellant, nor does the NCIC entry that should have been

withdrawn because the Denton police candidly explained that they knew the car

had not been stolen, that it had been reported to them as stolen in error, and that

the entry should have been withdrawn. The original detention of Appellant was

unlawful.



      5
       See id. at 574.
      6
       Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).


                                         5
     For these reasons, I must respectfully dissent.




                                                 /s/ Lee Ann Dauphinot
                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PUBLISH

DELIVERED: May 28, 2015




                                       6
