PD-0700-22 04/05/2023
1. “The Court of Appeals’s majority erred in holding that Officer Pope had reasonable suspicion to prolong Appellant’s detention to conduct a canine sniff after the purpose of the traffic stop had concluded.”
2. “The Court of Appeals’s majority erred in viewing Appellant’s refusal to give consent to search his vehicle as an indicium of criminal activity.”
Lall was convicted of a controlled substance offense arising out of a traffic stop. Lall was observed loading things into his vehicle at a house under surveillance for suspected narcotics activity. Lall was wearing a black fanny pack across his chest. He then started his vehicle, pulled almost entirely into the road, and then backed up into the driveway before leaving. An officer described this activity as a “heat run,” used to reveal whether the house was under surveillance by causing law enforcement to react to a suspect’s anticipated departure. After Lall left, an officer in an unmarked vehicle saw Lall follow another vehicle too closely and noticed his paper tag was partially obstructed. Officer Pope, driving a marked vehicle with his drug-canine Czar, effectuated the stop. As Lall stood outside his vehicle, he appeared nervous to the point his carotid artery was pounding. He looked into his backseat but did not appear to be looking for anything in particular. Lall consented to a pat-down and provided his license number, and the check for license, registration, and warrants came back clean. Pope issued a verbal warning for the citations and requested consent to search the vehicle. Lall denied consent. Pope then ran Czar around Lall’s vehicle. Czar alerted to narcotics. Lall’s motion to suppress the narcotics was carried with trial and denied.
Lall challenged that ruling on the basis that his detention was illegally prolonged prior to Czar discovering his narcotics. The court of appeals affirmed. It agreed that the dog sniff prolonged the stop, albeit for less than two minutes. However, it held Pope had reasonable suspicion based on the facts outlined above. It discounted attacks on individual circumstances as a prohibited “divide and conquer” approach. And it specifically held that Lall’s refusal to consent was properly considered, noting the Court of Criminal Appeals’s refusal to say it can never be, so long as it is not “the prominent factor.” See Wade v. State, 422 S.W.3d 661, 674-75 (Tex. Crim. App. 2013). Given the circumstances, including Pope’s diligent investigation during the short period of prolonged detention, the court of appeals held Lall’s rights were not violated.
Lall frames the issue, unresolved in Wade, as “whether a refusal to consent occurring after the completion of the stop can be viewed as any indicium of criminality, let alone the prominent one in a reasonable suspicion analysis.” He contends that invocation of one’s right to refuse a search, regardless of prior cooperation, should play no role in the analysis. Regardless, that refusal did not occur until after the “mission” of the stop was over. Viewed thus, there was no reasonable suspicion to prolong the stop other than nervousness and prior presence at a location in which police suspected but did not demonstrate that drugs were present. Nervousness, Lall argues, is a notoriously weak factor. And without any evidence as to why police suspected the location he had been at was involved with narcotics, that assertion was a conclusory statement that deserved no weight.
