Texas Appellate Judge Accuses Majority of Ruling on “Feels”
September 23, 2016 (Fault Lines) — Every appellate lawyer has experienced it. You raise a strong claim that a piece of evidence should have been suppressed, supported by mountains of case-law. The facts are good. The State’s excuses are weak. Then you get the opinion back—an opinion that ignores half your arguments to declare the officer “reasonable.” The finished product, devoid of the facts you were relying on, turns your strong case into what looks like a slam dunk for affirmance. You worry that others reading the case might assume you were raising a frivolous issue.
You have to blame yourself, of course. You won’t get better if you don’t assume that cases rise and fall on the strength of your advocacy. But you wonder. And then you read a dissent like this:
I was originally assigned this case and wrote an opinion holding that the stop and frisk of Appellant were unlawful. See the attached Exhibit A. The majority disagreed with me and has now issued an opinion that is not based on law, but on the feeling that the Appellant should not get relief…
This case highlights how an officer can state even the most elusive characteristics of the interaction between himself and a suspect in order to justify his conduct toward the suspect. A glance, a “furtive” movement, anxiety, and evasiveness of a man in a homeless shelter who appeared to be “kind of out of it” are very tenuous reasons for violating someone’s Fourth Amendment rights. I would go back to the standard where we required specific articulable facts to raise reasonable suspicion that someone is engaged in criminal activity and where anonymous tips had to be independently corroborated for reliability. But I guess this case gives the majority all the feels and it just can’t resist upholding a detention and search.
For those of you whose eyes gloss over during block quotes, this is Judge Lawrence E. Meyers, the sole Democrat on the Texas Court of Criminal Appeals, accusing other members of the panel of reaching their preferred outcome by ignoring relevant law and facts. From a criminal defense attorney, it would have been typical (possibly sanctionable) sour grapes. From a sitting appellate judge, it’s damn near incendiary.
So what drove Judge Meyers to such strong language? A pretty typical drug case, actually. Corpus Christi officers Ayers and Alvarez received an anonymous tip that two white men were doing drugs on a street corner. The two men, naturally, were in a “high drug, high crime area” Near the corner, the officers saw two men looking back over their shoulders at them, figured they must be the guys, and approached. The defendant walked away, into the Mother Teresa Shelter.
Curiosity piqued, the officers followed him into the shelter, where one of them noted that he seemed nervous, sweaty, and out of it. So, naturally, the officer asked the defendant if he had a weapon on him, to which he got no immediate reply. Equally naturally, this required an immediate pat-down for weapons, which recovered a glass pipe (the officer could tell by “plain feel” that it was contraband), followed by a search incident to arrest that recovered a wallet stuffed with two heroin balloons.
So in other words, the typical mountain of lies. Did the officer really fear for his safety when he frisked the defendant? Could he really tell just by patting his pockets that a glass pipe was contraband? Did it really strike the officer as unusual that a man was sweating? In Texas? In summer?
So, factually, this case is remarkably similar to the recent Supreme Judicial Court of Massachusetts opinion, holding that a vague, race-based description and walking away from officers is insufficient to establish a reason to detain someone on the street. The only apparent difference is that the rest of the Texas Court of Criminal Appeals didn’t have quite the same grit as those rock-ribbed Bostonians. While the dissent holds that an ordinary person should be able to safely walk away from police even if an anonymous tip describes someone else of the same race, and that you need more than the bare suspicion of drug use to do a pat down for weapons, the majority is far more sanguine about the stop.
After all, the defendant walked away “furtively.” And people who might have drugs on their person are “innately dangerous.” And you aren’t “really” detained by an officer who follows you into a building and starts questioning you until he actually turns you around and starts patting you down (never mind that if the defendant had continued walking away, the officer likely would have escalated).
Maybe we should be relieved that the Texas court didn’t hold, as Texas requested, that all people who are suspected of using drugs need to be patted down for weapons because they’re innately dangerous. That would make pretextual stop and frisks as easy as a claim to have smelled marijuana in a bad part of town.
But the dissent is right. No reasonable person would have felt free to walk away from an officer who followed him into a building and started questioning him. And vague anonymous tips are a dangerous basis to corroborate stopping any two dudes who happen to, literally, look at an officer the wrong way. The theoretically “objective” standard we’re supposed to abide by in a post-Whren world has subsided into a quagmire of half-assed guesses and feelings, backed up by “training and experience.”
But the opinion is what it is. And to the judges drafting it, it must have “felt” right, not punishing those officers for following up on a hunch that panned out. Who is really going to get all that upset, really, that a small-time heroin user is going to end up spending a couple of years in prison?
Judge Meyers is. And so is anyone who values the promise of liberty over the dubious assumption that freeing the government from its limitations somehow makes us safer. And so I join in the Meyers rallying cry. Freedom over feels.
 I long for the day some ingenious defense attorney brings in an expert to establish a “high constitutional violation zone” or a “permitted perjury penumbra” at a suppression hearing.
 For a good time, ask an officer at a suppression hearing what “furtive” means.