Crittenden v. State, 576-93

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 899 S.W.2d 668
• Docket Number: No. 576-93,576-93
• Parties: John CRITTENDEN, Appellant, v. The STATE of Texas, Appellee. .
• Decision Date: 17 May 1995

Page 668

899 S.W.2d 668

63 USLW 2771

John CRITTENDEN, Appellant, v. The STATE of Texas, Appellee.

No. 576-93.

Court of Criminal Appeals of Texas,

En Banc.

.

May 17, 1995.

Roy E. Greenwood, on appeal only, Austin, for appellant.

Ronald Earle, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

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 Crittenden v. State, No. 91-2720 (Tex.App.--Austin, April 14, 1993) (unpublished).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.R.App.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 Amador-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 Causey, 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[s] 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...