CAUSE NO. 

THE STATE OF TEXAS			§	IN THE _________ COURT
												§

V.						§	OF
						§

JOHN DOE					§	_________COUNTY, TEXAS

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT: 
	Defendant, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this Court on March 1, 2004.
Procedural History
	The Defendant allegedly committed the offense which is subject of Cause No. _______ on July 6, 2003.  The Defendant was arrested as a result of this offense, and was subsequently indicted for the offense of Possession of a Controlled Substance.
Statement of Facts
	 On July 6, 2003, while on routine patrol, Texas Department of Public Safety Trooper Smith and Trooper Taylor clocked the Defendant driving 65 miles per hour in a 55 mile per hour zone.  Trooper Smith pulled behind the Defendant’s vehicle and activated his emergency lights.  The Defendant pulled onto the shoulder of the road and stopped his vehicle.  Trooper Smith made contact with the Defendant, took the Defendant’s driver’s license, and advised the Defendant that he was being stopped for speeding.

	Trooper Smith asked the Defendant to step out of the car so that Trooper Smith could issue the citation for speeding from a safer location.  While issuing the citation, Trooper Smith noted that the Defendant was cooperative and seemed eager to continue his trip, but that the Defendant was “visibly nervous”.
	After the citation was issued, Trooper Taylor asked the Defendant if he had anything illegal in his vehicle or on his person, to which the Defendant replied that he did not.  Trooper Taylor then asked the Defendant for consent to search his person and his vehicle.  The Defendant then consented to search both his vehicle and his person. 
	The Defendant was then asked to empty his pockets.  The Defendant did as he was asked and produced $1,999.05 in cash from his pockets.  The troopers then searched the Defendant’s person which turned up a small plastic baggie containing a white powdery substance.  When the troopers asked what the white powdery substance was, the Defendant replied that it was cocaine.  A search of the Defendant’s vehicle failed to turn up any contraband.  The Defendant was then placed under arrest and transported to the Yoakum County jail.       
Argument
I.  	Evidence seized should be suppressed as fruit of the poisonous tree because, when the troopers detained the Defendant after issuing the speeding citation, they violated the Defendant’s constitutional rights under the Fourth Amendment because the continued detention was not reasonably related to the purpose of the initial stop and was not based on articulable facts.  

	The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment.  United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000) citing United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).  The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...”  U.S. Const. amend. IV.  The Fourth Amendment does not forbid all searches and seizures, but unreasonable searches and seizures.  Unites States v. Wadley, 83 F.3d 108, 111 (5th Cir. 1996) quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960).
	An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App. 1997); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983). To determine reasonableness of an investigative detention, a court must determine (1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.  Id. at 242; Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).
 	Consistent with Terry, Texas courts require reasonable suspicion before a seizure of the person or property can occur.  Id. at 244.  The second prong limits the scope of the investigative detention to exigencies which justify its initiation.  Id. at 243; Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882.  Indeed, Texas courts recognize that investigative detentions become unreasonable when they are not reasonably related in scope to the circumstances which justified the interference in the first place.  Id. at 244; see Dortch v. United States, 199 F.3d 193, 198 (5th Cir. 1999) (Fourth Amendment violation occurs when the detention extends beyond the valid reason for the stop); see also United States v. Brigham, 343 F.3d 490, 500 (5th Cir. 2003) (questioning unrelated to the justification for the stop that extends the duration of the stop violates the Fourth Amendment).

	  In Davis, the Court of Criminal Appeals held that the purpose of the stop was effectuated when officers determined that the motorist was not intoxicated, that continued detention was not based upon articulable facts, and that there was no basis for the continued detention.  947 S.W.2d at 246.  The appellant was stopped for suspicion of driving while intoxicated but, in part because the officers did not detect the odor of alcohol or any other drug, the officers determined that the appellant was not intoxicated.  Id at 241.  However after determining that the appellant was not intoxicated, the officers questioned the appellant and his passenger separately, and the officers believed the appellant and the passenger gave conflicting statements regarding the purpose of their trip.  Id.  
	After questioning the appellant and the passenger, one of the officers asked appellant for permission to search the car, but the appellant refused to give consent. Id.  Officers then informed appellant that he was free to leave but that the vehicle was going to be detained.  Id.  A canine unit was called to the scene which turned up a suitcase containing marijuana.  Id.  
	To determine the reasonableness of the detention, the court applied the two-prong test set forth in Terry v. Ohio.  Id. at 242.  The court focused on the second prong under Terry and noted that an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  Id.  The court stated, “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 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsberg, J., concurring). 
	Applying Terry to the facts of the case, the court noted that the appellant was stopped for suspicion of driving while intoxicated, therefore, the stop could last no longer than was necessary to determine whether or not the appellant was intoxicated.  Id. at 245.  The court stated that the officers’ suspicion was dispelled when the appellant explained that he was tired, not intoxicated, and when the officers did not notice any odor of alcohol.  Id.  The court stated, “[T]he purpose of the investigative detention was effectuated when the officers determined appellant was not intoxicated.”  Id.  Finally, the court noted that when viewed from an objective standard, no known fact or rational inference from those facts would support the conclusion that the appellant was engaged in or soon would be engaged in criminal activity.  Id.  

	In Dortch, the Fifth Circuit held that continued detention of the appellant who was stopped for following a car too closely was unreasonable when the detention extended beyond the valid reason for the initial stop.  199 F.3d at 198.  After being stopped, the appellant produced his driver’s license and rental papers, and officers conducted a pat down search which failed to produce a weapon.  Id. at 195.  The appellant and his passenger were then questioned by officers concerning their destination and purpose of their trip, to which the officers believed the appellant and the passenger gave inconsistent answers.  Id. at 196.  
	While one of the officers questioned the appellant the other officer took the appellant’s driver’s license and rental papers and called the dispatcher to run a warrant check.  Id.  While the warrant check was pending, one of the officers asked the appellant for consent to search the car, to which the appellant stated the officers could search the trunk but not the car.  Id.  The officers then told the appellant that he would be free to leave after the warrant check was complete, but that the car would be detained for a canine search.  Id.  Then, the officers patted down the appellant a second time and found nothing.  Id.  Approximately 19-20 minutes after the stop, the canine unit arrived and alerted officers, but no contraband was found.  Id.  Officers then conducted a third pat down search of the appellant, which this time turned up several baggies of cocaine.  Id.  

	The appellant argued that the prolonged detention that followed the traffic stop and the warrantless search of his person were unreasonable in violation of the Fourth Amendment because once the officers issued the oral warning for the traffic violation and received information that the appellant had no outstanding warrants, the justification for the stop ended.  Id. at 197.  The court agreed with the appellant and stated that, “the detention extended beyond the valid reason for the initial stop.”  Id. at 198.  The court noted that there was not reasonable or articulable suspicion that the appellant was trafficking in drugs and that once the warrant check came back negative the appellant should have been free to leave.  See Id. at 199; Brigham, 343 F.3d at 500 (completion of a computer check is not the exclusive dividing line between constitutional and unconstitutional detention.).  The court held that under the fruit of the poisonous tree doctrine, all evidence should have been suppressed.  Id. at 201.
	In the present case, the detention was unreasonable because it extended beyond  the valid reason for the initial stop when the officers asked for consent to search after they issued a speeding citation to the Defendant.  As in Davis and Dortch where the reasons for the stop had been satisfied, here the reason for the stop was satisfied once the officers issued the citation.  The Defendant was stopped for speeding and the detention could last no longer than was necessary to effectuate the purpose of the stop.  Once the officers issued the citation the purpose of the stop was effectuated and the Defendant should have been allowed to go on his way.  Clearly, the traffic stop in this case was used as a fishing expedition for unrelated criminal activity.
	Also as in Dortch, here no reasonable or articulable suspicion existed which would justify continued detention of the Defendant.  The police report states that the Defendant was stopped for speeding and that the officers advised him of this fact.  The report further states that while issuing the citation, the Defendant appeared nervous and anxious to get on his way, and that after the citation was issued Trooper Taylor asked for consent to search the Defendant and his vehicle.  Other than being nervous and anxious, the report gives no indication as to why the officers requested consent to search.  Being nervous is not indicative of guilt when a person is confronted by police officers.  See Davis, 947 S.W.2d at 248.  From an objective standard no known fact or reasonable inference drawn from those facts leads to the conclusion that the Defendant was caring contraband, and once the speeding citation was issued the Defendant should have been free to leave.
	The detention in this case violated the Defendant’s Fourth Amendment rights because the detention was not reasonably related to the initial purpose of the stop and there was no reasonable or articulable suspicion that would justify further detention after the troopers issued the speeding citation.  Under the fruit of the poisonous tree doctrine, the evidence seized should be suppressed because it was obtained as a result of the troopers violating the Defendant’s rights under the Fourth Amendment.
II.  	The Defendant’s consent to search was not valid because it was tainted by the illegal detention in violation of the Fourth Amendment.

	Consent to search may, but does not always, dissipate the taint of a prior Fourth Amendment violation.  Dortch, 199 F.3d at 201 citing United States v. Chavez-Villareal, 3 F.3d 124, 127 (5th Cir. 1993).  When there has been a constitutional violation, the State’s burden to prove the defendant consented becomes all the more difficult.  Id.  The state must prove by the preponderance of the evidence that consent is free and voluntary.  Id.
	Consent given after a Fourth Amendment violation is evaluated using a two-pronged inquiry: (1) whether the consent was voluntarily given, and (2) whether it was an independent act of free will.  Id.  Voluntariness focuses on coercion and the second prong considers the causal connection between “consent” and the prior constitutional violation.  Id.
	In evaluating voluntariness, six factors must be considered, although no single factor is dispositive: (1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found.  Id.  When considering the causal connection between the “consent” and the constitutional violation,  three factors are examined: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct.  Id. at 202.  	In Dortch, the court held that even if the appellant’s consent was voluntarily given, the consent was invalid because causal chain between the illegal detention and the consent was not broken.  Id.  After conducting two pat-down searches of the appellant, officers requested consent to conduct a third pat-down search and the appellant agreed.  Id. at 196.
	In reaching its holding, the court noted that there was a close temporal proximity between the illegal conduct and the consent because the detention continued until the officers obtained the appellant’s consent.  Id. at 202.  The court also stated that there were no intervening circumstances between the detention and the consent because there was no reason to think that the appellant believed he was free to leave.  Id.  Finally, in considering the purpose and flagrancy of the initial misconduct, the court stated that although the purpose of the officers’ conduct could not be known, it was apparent that the officers intended to detain the appellant until the canine unit could arrive.  Id.  Based on these factors the court concluded that the appellant’s consent was not consensual because the causal chain between the illegal detention and the consent was not broken, and because there was no probable cause to search the appellant’s person, the evidence obtained from that search should have been suppressed.  Id. at 202-03.
	Here, although the Defendant’s consent may have been voluntary, the consent was not valid because there was no break in the causal chain between the illegal detention and the consent.  Like Dortch, there was a close temporal proximity between the consent and the illegal conduct because consent was obtained during the illegal detention.  Further, there were no intervening circumstances because, as in Dortch, the Defendant had no reason to think that he was free to leave.  Finally, although the reason the troopers asked for consent to search cannot be known, it seems apparent that from the outset the troopers intended to detain the Defendant even after issuing the citation because the report does not indicate what articulable facts lead the troopers to conclude the Defendant might possess contraband.  
	The Defendant’s consent to search was not valid because it was tainted by the Fourth Amendment violation.  Because no break in the casual chain removed the taint of the constitutional violation from the Defendant’s consent, the evidence obtained as a result of the consent should be suppressed.

Respectfully submitted,
							
CHAPPELL & LANEHART, P.C.
ATTORNEYS AT LAW
1217 Avenue K
Lubbock, Texas 79401
Ph. No. (806) 765-7370
Fax No. (806) 765-8150

By:___________________________________
Chuck Lanehart
State Bar No. 11891400

CERTIFICATE OF SERVICE
	This is to certify that a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress Evidence was delivered to the Criminal District Attorney of Yoakum County, Texas on the _____ day of . 

___________________________________________
Chuck Lanehart