Crittenden v. State

899 S.W.2d 668, 1995 Tex. Crim. App. LEXIS 57, 1995 WL 296354

• Court: Court of Criminal Appeals of Texas
• Decided: May 17, 1995
• Docket: 576-93
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant pled nolo contendere to a charge of possession of controlled substance (heroin), and was sentenced in accordance with a plea bargain to seven years, probated. His conviction was affirmed by the Third Court of Appeals. Crittenden v. State, No. 91-2720 (Tex.App.—Austin, April 14, 1993) (unpublished). We granted discretionary review on a single ground, viz: “Did the court of appeals err in holding that the stop of appellant’s vehicle, and his subsequent detention, was not a ‘pretext arrest’ under the provisions of Article I, Section 9 of the Texas Constitution?” Tex.RApp.Pro., Rule 200(c)(2).

I.

The parties do not dispute the facts. Austin Police Sergeant Duane McNeil was on patrol in East Austin when he received a radio dispatch requesting that he check on a suspicious white vehicle at 2513 East 11th Street. A resident had called to complain that the occupant of the vehicle was “possibly trying to buy drugs.” McNeil found a white pickup truck parked at that address. Appellant was the driver and sole occupant of the pickup. McNeil and appellant conversed briefly. After appellant drove off, McNeil observed him make a right turn without giving a proper signal. At this point, McNeil was approached by a woman, who told him, “that was the vehicle.” McNeil then pursued the truck and stopped it.

After the stop, the officer asked appellant for his driver’s license and proof of insurance. Appellant was cooperative, but could not immediately find his insurance papers. McNeil asked him to step out of the vehicle; he then asked for consent to search his person. Appellant consented, the contraband which is the subject of this appeal was discovered, and appellant was subsequently arrested.¹ At a pretrial hearing McNeil testified that, although he did not carry a citation book with him in his patrol car, he had stopped appellant intending to give him a traffic citation. He also characterized the stop as a “kind of research-type situation.”

Appellant complained on appeal that the stop was pretextual in this cause, and was thus illegal under both the Fourth Amendment and Article I, § 9 of the Texas Constitution. The court of appeals, speaking through our former Presiding Judge Onion, rejected his Fourth Amendment complaint, citing this Court’s opinion in Garcia v. State, 827 S.W.2d 937 (Tex.Cr.App.1992). Id., (Slip op. at 4). Appellant does not challenge the disposition of his Fourth Amendment claim here.

Turning to appellant’s contention that the traffic stop was a pretext, and therefore illegal under Article I, § 9 of the Texas Constitution, the court of appeals responded:

“Further, an issue of pretext stop is not raised simply because the police validly stop a vehicle for a traffic violation when they have a more generalized suspicion that the driver of the vehicle was involved in a separate crime. Hamilton v. State, 831 S.W.2d 326, 330 (Tex.Crim.App.1992); Goodwin v. State, 799 S.W.2d 719, 726 (Tex.Crim.App.1990). Because the facts of the instant case do not raise the issue of a pretext arrest, we need not address the constitutionality of the stop under Article I, Section 9 of the Texas Constitution. Hamilton, 831 S.W.2d at 330.”

Id. Thus, the court of appeals seems at least nominally to have avoided the question whether the stop of appellant in this cause violated Article I, § 9.² We nevertheless granted appellant’s petition for discretionary review in order to address the legality of so-called pretext stops under our state constitutional analog to the Fourth Amendment.

II.

Whether Article I, § 9 admits of a pretext doctrine is not a wholly novel issue in this Court. The cases discussing the pretext doctrine, or cited by this Court as support for the pretext doctrine, are legion.³ After reviewing these cases, however, we are forced to admit, as Presiding Judge McCormick opined recently in a different context, that our efforts in this area have failed as “a model of clarity and concise legal analysis.” Lyon v. State, 872 S.W.2d 732, 734 (Tex.Cr. App.1994).

As appellant and amicus curiae note, three “tests” have been used by American courts in the hotly debated context of pretextual seizures: the “subjective” test, the “objective” test, and the “modified objective” test.⁴ The pivotal Texas case of Black v. State, 739 S.W.2d 240 (Tex.Cr.App.1987) has been cited as an example of a “subjective” approach; yet, nothing about our analysis in Black is inconsistent with a “modified objective” approach. We based our holding in Black in part on the Fifth Circuit’s opinion in Ama-dor-Gonzalez v. United States, 391 F.2d 308 (CA5 1968), another case which has been cited for its “subjective” approach. But Amador-Gonzalez was overruled in United States v. Causey, 834 F.2d 1179 (CA5 1987) (en banc), in which the Fifth Circuit adopted an “objective” approach to pretextual seizures. On the strength of Causey, a plurality of this Court then purported to overrule Black, in Gordon v. State, 801 S.W.2d 899 (Tex.Cr.App.1990) (plurality opinion).

Because Gordon was premised both on the Fourth Amendment and Article I, § 9 of the Texas constitution, it would seem to have answered the question before us today. But, as we noted later in Garcia v. State, 827 S.W.2d 937 (Tex.Cr.App.1992), because Gordon was a plurality opinion it could not operate to overrule established precedent. Although Garcia adopted the Fifth Circuit’s objective approach to pretextual seizures under the Fourth Amendment, it expressly reserved the state constitutional question for another day. Garcia, supra, at 943 n. 8. The question before us today is thus one expressly left open by Garcia, supra, viz: How should we review claims of pretextual seizure brought pursuant to Article I, § 9 of the Texas Constitution?

III.

A pretextual seizure, in the most general sense, is one that is effectuated for an ulterior (i.e., pretextual) motive. The three approaches courts have taken toward claims of pretextual seizure — the objective, subjective and modified objective — are merely different ways courts review a defendant’s claim that a particular seizure was illegal because pretextual. The “subjective” and “objective” approaches represented by Black and Cau-sey, both supra, are generally considered to be polar opposites. See Garcia, supra, at 942 (contrasting the “objective approach” with a “wholly subjective analysis”). Under an “objective” approach, a seizing officer’s subjective motivation in effectuating a seizure is deemed irrelevant to the determination of whether the seizure was reasonable. This, of course, is nothing more than the complete abandonment of any sort of pretext doctrine; because an officer’s “subjective intent” in effectuating a seizure is irrelevant, there can never be an illegal “pretext” for a seizure. See United States v. Reeves, 798 F.Supp. 1459, 1464 (E.D.Wash.1992) (objective approach “effectively eliminate^] the pretext rule”). The subjective approach has been less than fully developed. However, its basic premise is that “subjective intent” is relevant, even determinative, in gauging the reasonableness of a seizure. Id. The “modified objective” approach has been described in various ways, and under various names, but is most often summed up as a judicial inquiry into “not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of an invalid purpose.” United States v. Smith, 799 F.2d 704, 709 (CA11 1986); see also United States v. Crotinger, 928 F.2d 203, 206 (CA6 1991); United States v. Guzman, 864 F.2d 1512 (CA10 1988).

Both appellant and amicus curiae now urge us to reject the objective approach that we adopted to analyze claims of pretext seizures under the Fourth Amendment in Garcia v. State, supra, and to adopt instead a modified objective approach under Article I, § 9. We decline to do so. First, it is at least arguable that the Court has tacitly adopted a purely objective approach under Article I, § 9 already, in Hamilton v. State, supra. Even had we not, it would be anomalous, having found in Garcia that the decisions of the federal circuit courts that have adopted an objective standard are more persuasive than those adopting a modified objective test, to about-face and announce that a modified objective approach should be adopted for purposes of our own state constitutional analysis.

The court of appeals was able to avoid expressly deciding whether Article I, § 9 renders appellant’s seizure unlawful by concluding that the facts as developed at the suppression hearing did not raise the issue of pretext stop. Crittenden v. State, supra (Slip op. at 4). Writing for the court, Judge Onion relied for this proposition upon this Court’s opinions in Hamilton v. State and Goodwin v. State, both supra. Close scrutiny of those cases suggests, however, that we did not avoid the issue of pretext seizures so much as we simply concluded, sub silentio, that as long as the arresting officer made an objectively reasonable traffic stop, neither the Fourth Amendment nor Article I, § 9 mandates any inquiry into his subjective motivation.

In Goodwin, a police officer, although lacking articulable grounds for suspicion, nevertheless grew suspicious that the occupants of a car the defendant was riding in might be engaged in or about to engage in unlawful activity. He followed the car until it made a turn without signalling, and then stopped it, ostensibly for this minor traffic violation. The seizing officer denied from the witness stand, however, that he had been “looking for a reason to stop them so [he could] check them out.” Goodwin claimed on appeal that this was an illegal pretext stop under the Fourth Amendment. Under the modified objective test, these facts would surely raise an issue of pretext seizure. Although the officer denied that his motivation for making the traffic stop was to “check out” his inarticulable hunch, the surrounding circumstances are sufficient to create an issue of fact whether that was in fact true. The question would then become whether, but for the illegitimate subjective motivation (if any), the officer would have made the traffic stop. Nevertheless, the Court concluded that the issue of pretext was not raised by the facts. We reasoned that because the officer “acted lawfully in stopping [the car] for failure to signal ... [the officer’s] generalized suspicion of possible illegal activity ... did not invalidate a legal stop for a traffic violation.” Goodwin, supra at 726. Thus, the Court apparently held that so long as the traffic stop was objectively justified, the officer’s motivation for making it did not raise a Fourth Amendment issue. In essence, we adopted an objective approach to claims of pretext stop under the Fourth Amendment without expressly acknowledging we were doing so.⁵

In Hamilton we arguably did the same thing for purposes of Article I, § 9. There officers noticed a parked ear that seemed out of place in the neighborhood they were patrolling. When a register check revealed the car belonged to a business, the officers decided to drive by the car again, but before they could, the car came at them in the wrong lane of traffic. The officers ordered appellant, the driver, to pull over. When he could not provide a license or proof of insurance, the officers decided to cite appellant for all of the above infractions. Moreover, because he would not give them definite information about where he lived or who owned the car, pursuant to what one of the officers testified was “proper police procedure,” they arrested appellant so that he would be required to post a cash bond. On authority of Goodwin we reiterated the holding that police motivation will not vitiate an otherwise lawful traffic stop, and once again held that the facts therefore did not raise an issue of pretext stop. Because Hamilton argued under the aegis of Article I, § 9, rather than the Fourth Amendment, by citing Goodwin we seem to have adopted a purely objective test for purposes of Article I, § 9 as well.⁶

It appears, then, that neither Goodwin nor Hamilton truly avoided the issue of whether a pretext stop is constitutionally prohibited. Instead, they effectively decided that a stop will not be invalidated based on the subjective motivation of a police officer so long as there is an objectively valid basis for the stop. Each case thus appears to have implicitly, but necessarily, adopted a purely objective test for analyzing pretext stop claims. Because the court of appeals relied upon these cases for its own disposition in the instant cause, it essentially adopted that test too. Although nominally side-stepping the Article I, § 9 question, the court of appeals really held that there is no such thing as an illegal pretext stop under Article I, § 9.⁷

Given the way we disposed of the analogical Fourth Amendment question in Garcia, supra, we are constrained to agree. In Garcia we expressly rejected the modified objective approach. We rejected it not because we were constrained by Supreme Court precedent precisely on point — there is none. Rather, we rejected it for two reasons. First, we perceived the weight of authority among the federal circuit courts of appeals to preponderate in favor of the objective test over either a modified objective or a subjective approach. 827 S.W.2d at 942. Second, and more importantly for present purposes, we opined that “the objective approach clearly makes more sense, and is more reasonable in terms of application,” id., at 943, and we expressly described the modified objective approach as “at worst unworkable and at best highly problematie[.]” Id., at 942, & n. 7, at 942-43. Having adopted the objective approach under the Fourth Amendment, not because of binding precedent, but because it “makes more sense” than the alternatives, we can hardly justify concluding otherwise for purposes of Article I, § 9. Indeed, we would abuse our prerogative to construe even like provisions of the state and federal constitutions differently, see Richardson v. State, 865 S.W.2d 944, 948 (Tex.Cr.App.1993),⁸ and stretch judicial credibility to the breaking point, were we somehow to hold that what “makes more sense” for purposes of the Fourth Amendment does not also “make more sense” under our own state constitutional analog.⁹

We therefore hold, instead, that an objectively valid traffic stop is not unlawful under Article I, § 9, just because the detaining officer had some ulterior motive for making it. Because that is what the court of appeals effectively held in this cause, we affirm its judgment.

MALONEY, J., concurs in the result. OVERSTREET, J., dissents.

1 . At the pre-trial hearing, appellant denied that he consented to the search. However, his denial was contradicted by both McNeil's testimony and that of a backup officer, and the trial court “state[d] on the record as a finding of fact [that] consent was asked for and given by the defendant for the search."

2 . The State Prosecuting Attorney contends that the question whether Article I, § 9 admits of a pretext doctrine is not before us in this cause. Because the court of appeals held on authority of Hamilton that the facts do not raise pretext in any event, the State Prosecuting Attorney argues, that issue was not decided by the court of appeals, and therefore is not ripe for our consider- • ation. See e.g., Lee v. State, 791 S.W.2d 141 (Tex.Cr.App.1990). For reasons given post, however, we conclude that both this Court in Hamilton, and hence, the court of appeals in this cause, did in fact address the pretext issue under Article I, § 9, albeit not expressly but by necessary implication.

3 . Our research reveals more than thirty cases from this Court that either address the pretext arresVstop doctrine or that we have cited as authority for the doctrine. See McDonald v. State, 415 S.W.2d 201 (Tex.Cr.App.1967); Adair v. State, 427 S.W.2d 67 (Tex.Cr.App.1967); Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973); Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973); Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App.1975) (opinion on rehearing); Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976) (opinion on rehearing); McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App. 1977); Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976); Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977); Fatemi v. State, 558 S.W.2d 463 (Tex.Cr.App. 1977); White v. State, 574 S.W.2d 546 (Tex.Cr.App.1979); Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978); Razo v. State, 577 S.W.2d 709 (Tex.Cr.App.1979); McMillan v. State, 609 S.W.2d 784 (Tex.Cr.App.1980); Armitage v. State, 637 S.W.2d 936 (Tex.Cr.App.1982); Dodson v. State, 646 S.W.2d 177 (Tex.Cr.App. 1983) (opinion on rehearing); Bain v. State, 677 S.W.2d 51 (Tex.Cr.App.1984); Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985); Black v. State, 739 S.W.2d 240 (Tex.Cr.App.1987); Webb v. State, 739 S.W.2d 802 (Tex.Cr.App.1987); Boyle v. State, 820 S.W.2d 122 (Tex.Cr.App.1989); Goodwin v. State, 799 S.W.2d 719 (Tex.Cr.App.1990); Gordon v. State, 801 S.W.2d 899 (Tex.Cr.App. 1990); Garcia v. State, 827 S.W.2d 937 (Tex.Cr. App.1992); Hamilton v. State, 831 S.W.2d 326 (Tex.Cr.App.1992); Bobo v. State, 843 S.W.2d 572 (Tex.Cr.App.1992); Nelson v. State, 848 S.W.2d 126 (Tex.Cr.App. 1992).

4 .Texas Criminal Defense Lawyers Association has filed an amicus curiae brief in this cause.

5 . In fairness, there is an alternative, and perhaps in context, more likely interpretation of the Court’s analysis in Goodwin. It may well be that by observing that generalized suspicion will not vitiate an otherwise valid traffic stop, the Court meant to distinguish traffic stops that are a subterfuge to allow police to check out inarticulable suspicions from those made to foster investigation of a reasonable suspicion or even probable cause. Such a distinction, if that is what the Court meant, however, would evince a profound misunderstanding of what a claim of illegal pretext is all about. An officer with reasonable suspicion or probable cause to suspect criminal activity is afoot does not need the additional justification of a traffic violation to make a lawful investigative detention. See Bobo v. State, 843 S.W.2d 572, 574-75 (Tex.Cr.App.1992). That an officer with reasonable suspicion also may have observed a traffic violation, and stopped a car for that reason too, would not under any of the tests for pretext render the stop illegal. It is, therefore, only when officers have only generalized (i.e., inarticulable) suspicion that the issue of pretext stop can be raised — not vice-versa, as this alternative reading of Goodwin tends to suggest.

6 . Having thus resolved whether the evidence raised an issue of a pretextual stop, we next turned in Hamilton to the question whether the evidence raised an issue whether the full custodial arrest was an illegal pretext under Article I, § 9. In that context we concluded that pretext was not raised, but for an altogether different reason. Given the testimony that it was "proper police procedure” to effect an arrest under the circumstances, we held the evidence showed that any reasonable officer in the same position would have arrested Hamilton, and therefore no pretext was involved. This is, in effect, to measure pretext arrest, vel non, against the modified objective test, as our citation to § 1.4(e) of Professor LaFave's treatise in Hamilton underscores. 831 S.W.2d at 331.

Thus, Hamilton seems to have utilized a purely objective test to determine whether an allegedly pretextual stop was unlawful under Article I, § 9, but a modified objective test to determine whether an allegedly pretextual arrest was violative of that same state constitutional provision. Why we should treat a claim of pretext stop under a different standard than we would analyze a claim of pretext arrest is something that, frankly, we cannot now explain. It is therefore impossible to say definitively that Hamilton stands for the proposition that any claim of pretext seizure should be measured under the objective rather than the modified objective approach under Article I, § 9.

7 . Thus we reject the State Prosecuting Attorney’s contention that the issue is not raised in this cause. See n. 2, ante.

8 . In Richardson we were called upon to decide whether use of a pen register could ever constitute a "search" under Article I, § 9. The Supreme Court had authoritatively held that a pen register is not a search for Fourth Amendment purposes, in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). We were persuaded by the weight and persuasiveness of critical and judicial authority that the Supreme Court was wrong to conclude in Smith that there was no objectively reasonable expectation of privacy in the numbers one dials on the telephone. We therefore exercised our prerogative to construe Article I, § 9 differently than the Supreme Court had construed the Fourth Amendment.

In the present context the Supreme Court has not authoritatively spoken. We adopted the objective approach in Garcia because we believed it to be the preferable interpretation of the Fourth Amendment among the alternatives we considered. Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different than our preferred interpretation of the Fourth Amendment. We will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply because we can.

9 .Judge Baird accuses us of adopting an objective test out of "judicial convenience,” whatever it is exactly he means by that. Dissenting op. at 674, 676-677, 679-680, and 681. We simply cannot credit his suggestion that the instant writer would engage in what he calls "a transparent attempt to avoid mature deliberation and thoughtful resolution of the issue presented.” Id., at 681. Having himself engaged in what we have no doubt was “mature deliberation” of the issue, Judge Baird argues that an objective test should be rejected because it tolerates "the use of a valid traffic stop as a pretext to search for evidence of a greater crime[,]” and that a search under these circumstances “is unreasonable” for purposes of Article I, § 9. Id., at 679. Of course, “reasonableness" is as much the linchpin of Fourth Amendment analysis as it is of our own state constitutional analog. Yet Judge Baird presumably believed that a pretext arrest was reasonable enough under the Fourth Amendment, for he joined the Court’s opinion in Garcia without reservation. (The instant writer did not.) Certainly Judge Baird’s view in Garcia was not dictated by Supreme Court precedent. See n. 8, ante. The opportunity for “thoughtful resolution” came and went when Garcia was decided. We cannot hold that what this Court believed was reasonable under the Fourth Amendment is somehow not reasonable under Article I, § 9.