


 







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1946-03


MATTHEW FORD, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS

HARRIS  COUNTY



 Keller, P.J., filed a dissenting opinion in which WOMACK and
COCHRAN, JJ., joined.

DISSENTING OPINION


 This case presents a difficult question: how specific must an officer's testimony about his
observations be in order to support a finding of reasonable suspicion?  At issue here is an officer's
opinion, based on his observations, that the accused was "following too close."  I would hold that
the officer's opinion constituted prima facie evidence sufficient to support a finding of reasonable
suspicion, but the defendant or the trial court could have requested greater specificity, and if greater
specificity were not forthcoming, then the evidence would have been subject to suppression. 
Because greater specificity was not requested in this case, I would affirm the trial court's judgment.
	In Terry v. Ohio, the fountainhead case on the "reasonable suspicion" standard applicable to
"stops," the Supreme Court said that a police officer had reasonable suspicion if he could "point to
specific and articulable facts which, if taken together with rational inferences from those facts,
reasonably warrant" the intrusion in question. (1)  The requirement of "specific and articulable facts"
serves the function of subjecting the police officer's actions to meaningful judicial review:
The scheme of the Fourth Amendment becomes meaningful only when it is assured
that at some point the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of the particular
circumstances. (2)

That meaningful judicial review carries over to the appellate context, which requires a de novo
review of the circumstances relied upon to support a trial court's finding that reasonable suspicion
did indeed exist. (3)  But it is also true that appellate courts must give "due weight" to the "factual
inferences drawn by resident judges and local law enforcement officers." (4)  Texas recognized  these
principles in Guzman v. State, where we explained that, in the search and seizure context, "almost
total deference" should be given to questions of historical fact, and application-of-law-to-fact
questions turning on credibility and demeanor, while other application-of-law-to-fact questions are
reviewed de novo. (5)
	Whether the bare testimony "he was following too close" is sufficient to support a trial
court's finding of reasonable suspicion has not been squarely addressed in any jurisdiction.  There
are a handful of published appellate opinions in which "following too close" or "tailgating" was at
issue, and in each of these cases, the appellate court found the observed conduct to be sufficient to
show reasonable suspicion or probable cause. (6)  In two of these cases, the court recited a specific fact
testified to by the officers in support of their conclusions: following less than two seconds behind
another vehicle. (7)  In the other cases the appellate court simply remarked that the officer had validly
pulled over the accused on the basis of an anti-tailgating traffic law. (8)  None of these cases addressed
whether the testimony in question was sufficiently specific. (9)
	The testimony at issue is an opinion based on a witness' perception.  As such, it implicates
the concerns underlying Texas Rule of Evidence 701, which provides that the opinion of a witness
is admissible if it is "rationally based on the perception of the witness" and "helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue." (10)  Our Rule 701 is
based on its federal counterpart, which was adopted in part due to the "practical impossibility" of 
determining what is a "fact," as opposed to mere opinion, "demonstrated by a century of litigation." (11) 
The advisory committee for the federal rules cited McCormick's treatise for the proposition that "a
standard for permitting opinions and conclusions has proved too elusive and too unadaptable for
purposes of satisfactory judicial administration." (12)  As a result of the immense difficulty in sorting
"fact" from "opinion," a recent edition of McCormick's treatise has concluded that trial courts
should be "accorded a wide range of discretion at least in classifying evidence as 'fact' or 'opinion'
and probably in admitting evidence even where found to constitute opinion." (13)
	We have recognized the role of Rule 701 in permitting the admission of opinions, where the
opinion constitutes a "shorthand rendition of the facts." (14)  These types of opinions, sometimes also
called "collective facts," are permitted because a "catalogue of particulars may be inadequate to
convey important ideas that lay witnesses are competent to express." (15)  The opinion "may sum up
and give the full flavor and character of the particulars (to which the witness also testifies) or may
substitute for a catalogue the witness may be unable to provide." (16)  "Prototypical" examples of this
type of opinion include those relating to "the appearance of persons or things, identity, the manner
of conduct, competency of a person, degrees of light and darkness, sound, size, weight, [and]
distance." (17)  Other common examples include speed (18) and intoxication. (19)
	Authority considering the intersection of Rule 701 with search and seizure law appears to be
sparse, but one interesting case was decided in Minnesota.  In State v. Nolting, a law enforcement
agent requested a warrant to search a particular piece of mail based in part on his declaration that "I
was advised that the parcel was found [in the post office by a mail clerk], who has discovered
numerous parcels of this type containing controlled substances." (20)  Although the defendant argued
that the clerk's statement was conclusory and should be given no weight, the Supreme Court of
Minnesota found it to be a legitimate opinion of the type covered by Federal Rule of Evidence 701. (21) 
The court remarked: 
The conclusion drawn by the mail clerk is a simple one, drawn directly from his
personal sensory experience.  It is the kind of conclusion that courts and juries may
legitimately credit in resolving factual questions.
*     *     *

If the affidavit had set forth the respects in which the parcel resembled the earlier
packages, the magistrate might have been more certain of the clerk's conclusion.  But
we think detailing the basis of this conclusion, while desirable, goes to its probative
value to establish probable cause and not to whether the conclusion can be
considered by a magistrate. (22)

	The fact that a Rule 701 type of opinion can be considered in determining a search and
seizure question does not necessarily mean that the opinion is sufficient to support the trial court's
resolution of the issue.  But a key to how to review this type of evidence may be found in one of the
reasons that has been given for liberally allowing its admission: abuses can be effectively checked
by cross-examination.  The federal rules advisory committee explained:
The rule assumes that the natural characteristics of the adversary system will
generally lead to an acceptable result, since the detailed account carries more
conviction than the broad assertion, and a lawyer can be expected to display his
witness to the best advantage.  If he fails to do so, cross-examination and argument
will point up the weakness. (23) 
 
	The officer's opinion that appellant was "following too close" is a broad factual assertion
based on the officer's observations.  Substantiating that factual assertion with more detail - the
number of car lengths separating appellant's vehicle from the one being followed, or the number of
seconds between the time each vehicle passed a fixed point, for example - would be preferable, but
the officer's unchallenged assertion of what he observed was a sufficient basis for the trial court to
rule as it did.  The trial court could reasonably infer from the officer's testimony that he did indeed
observe appellant following too closely.   The information imparted was enough to convey to the trial
court a factual basis for believing that appellant may have broken the law.  
	Cross-examination might have shown otherwise.  If, upon cross-examination, the officer
could offer no basis whatsoever for his conclusion that appellant was following too closely, the trial
court might then have been required to find that the officer's "following too close" conclusion did
not constitute specific, articulable facts to support a stop.  Or perhaps cross-examination would have
revealed that the officer's definition of "following too close" was not in fact a description of conduct
proscribed by the statute in question.  On the other hand, cross-examination might have elicited
details further supporting the officer's conclusion.  The trial court could have chosen to disregard
the officer's testimony due to its generality, (24) but it was also within the trial court's discretion to
credit the testimony, and under the circumstances present here, I believe the testimony was sufficient
to support the trial court's finding of reasonable suspicion.
	I respectfully dissent.
							Keller, Presiding Judge
Date filed: March 9, 2005
Publish
1.   392 U.S. 1, 21 (1968).
2.   Id.
3.   United States v. Arvizu, 534 U.S. 266, 275 (2002).
4.   Id. at 273-274.
5.   955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
6.   United States v. Perez, 200 F.3d 576, 577-579 (8th Cir. 2000); United States v. Lyton,
161 F.3d 1168, 1169-1170 (8th Cir. 1998); United States v. Beck, 140 F.3d 1129, 1132-1134 (8th
Cir. 1998); United States v. Rivera, 867 F.2d 1261, 1262-1264 (10th Cir. 1989); Peters v. State,
859 So. 2d 451, 452-454 (Ala. Crim. App. 2003); State v. Cohen, 549 So. 2d 884, 886 (La. App.
1989), cert. denied, 559 So. 2d 135 (La. 1990); State v. McGinnis, 8 Neb. App. 1014, 1016-1020,
608 N.W.2d 605, 608, 610 (2000).
7.   Perez, 200 F.3d at 578; McGinnis, 608 N.W.2d at 608.
8.   Lyton, 161 F.3d at 1169-1170; Beck, 140 F.3d at 1132-1134; Rivera, 867 F.2d at 1262-1263; Peters, 859 So. 2d at 452; see also Cohen, 549 So. 2d at 886 (rejecting challenge against
constitutionality of anti-tailgating statute).  The discussion in Peters strongly suggests that the
officer did not give more specific testimony, but the court's remark about the sufficiency of this
testimony to support the stop was dicta.  See Peters, 859 So. 2d at 452-454.  
9.   See previously cited cases.
10.   Tex. R. Evid. 701.
11.   Advisory Committee Notes, Fed. R. Evid. 701.
12.   Id.
13.   McCormick on Evidence, 5th ed., §11, p. 46 (1999).
14.   Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001); Fairow v. State, 943
S.W.2d 895, 900 (Tex. Crim. App. 1997).
15.   Mueller & Kirkpatrick, Federal Evidence, 2nd ed., §346 (1994).
16.   Id.
17.   Advisory Committee Notes, 2000 Amendments to Rule 701 (quoting Asplundh Mfg.
Div. V. Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3rd Cir. 1995))(bracketed material and
emphasis added).
18.   Mueller & Kirkpatrick, supra; Ho v. United States, 331 F.2d 144 (9th Cir. 1964).
19.   Mueller & Kirkpatrick, supra; United States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir.
1989); Loof v. Sanders, 686 P.2d 1205, 1212-1213 (Alas. 1984)(citing Esquivel v. Nancarrow,
104 Ariz. 209, 450 P.2d 399, 403 (1969)).
20.   312 Minn. 449, 450-451, 254 N.W.2d 340, 342 (1977)(bracketed material substituted
for original, emphasis in original).
21.   Id. at 454-455, 454 n. 3.
22.   Id. at 454-455 (ellipsis inserted).
23.   Advisory Committee Notes, Fed. R. Evid. 701.
24.   See  State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000).  And nothing prevents the
trial court from asking the witness for more specificity before deciding to credit the opinion
testimony.  See McCormick, §11, p. 50 ("provided personal knowledge is adequately
established the witness need not recite the observed matters that are the basis of opinion,
although the judge has discretion to require preliminary testimony abut the facts observed" -
emphasis added).
