Don’t “Look around Like a Drug User” in Austin…

In order to protect the parties involved, I am not disclosing any identifying information for those charged or the officers involved, other than to say, it was Austin Police Department officers and transient individuals.

Just for a brief review of caselaw applicable to this matter:

 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, 392 U.S. at 22, 88 S.Ct. at 1880; Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). An officer conducts a lawful temporary stop or detention when he or she has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has 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. Id. at 492-93. This is an objective standard that disregards any subjective intent of the officer making the detention and looks solely to whether an objective basis for the detention exists. Id. at 492. We look at only those facts known to the officer at the inception of the detention. State v. Griffey, 241 S.W.3d 700, 704 (Tex.App.-Austin 2007, pet. ref’d).

In order to prevent boring anyone to death by reciting a detailed review of these cases, I want to share an excerpt from the Probable Cause Affidavit written by the arresting officer and the information contained in [ ] are my editorial comments:

I noticed four individuals standing on the sidewalk, on the south curbline. [Not criminal, not standing in the roadway] The same four individuals were standing in front of an old vactan lot that was burned several years ago.  Through my training and experience working the downtown area command, I have seen homeless individuals stand in front of this vacant lot and smoke marijuana including crack cocaine.  As we (the officers) were approaching this area, I noticed the same four individuals looking around like drug users do when looking for officers in an area when trying to use a drug or sell a drug. [Does this mean looking around, over shoulders, etc? Wow, I do that all the time!]  As we were getting closer, the same individuals saw us approaching them and all had the "deer in the headlight look" [Surprise! Two cops riding toward you on bicycles---clearly they must be guilty (sic)].

As this continued, ultimately one subject was arrested and charged with possessing .035 ounces of marijuana

The outcome, resulted in a plea, despite my advice that we challenge the stop on the basis of an illegal stop/detention.  However, my client did not want to challenge it.  He was homeless and wanted only to get out of jail (only to go back to the street) … I urged him to allow me to fight for him, but he refused.  Some will say, he refused because he knew he was guilty, but my reason for wanting to fight this was not only to "save him from conviction" but to help end the cycle of bad police practices and habits.