Reasonable Suspicion

Reasonable Suspicion — not so fast. . .

Ramirez-Tamayo v. State, No. 07-15-00419-CR (Tex. App.—Amarillo Oct. 5, 2016) (pet. granted, No. PD-1300-16).

Be careful with this case! State’s PDR has been granted.

The court held the officer had no reasonable suspicion to prolong detention after stopping Ramirez-Tamayo for going 78 in a 75mph zone on I-40 but telling him he was going to let him off with a warning. The court summed up the various factors supporting the officer’s RS as follows: “Smoking in a car while driving [a rental car] despite the presence of “no smoking” stickers, wearing cologne, driving a rental car, driving with windows rolled up, opening a car door, not rolling down a car window, travelling to casinos, and driving to Miami, Florida are activities committed by people who have no relationship to criminal activity.” The court went a long way to say that many behaviors that have previously qualified as RS are the very same as those by completely innocent folk: riding in a car with meal wrappers, driving a clean car, looking at an officer, looking away from an officer.

Okay, REVERSE, no RS, moving on.

Practical Implications:

First, the SPA has filed a PDR, which really doesn’t matter to me. I include this case on the blog only as a good start if you need to brainstorm your arguments against RS. Ask yourself: is the officer’s particular observation simply an opinion or conclusion? How does his training and experience support the conclusion that a guy smoking with the windows up merits continued detention?

If you are practicing in a place where the prosecutors can read and conform their behavior to case law, BE CAREFUL citing this case! The court repeatedly castigated the trial prosecutor here for not asking the officer sufficient questions to amplify his basis for concluding the various factors supported RS. By citing this case in a motion, you might just be inviting the state to study up on just how to win your MTS.

The court said, “what elevates [unusual behavior] to the level of reasonable suspicion is not that it fits a profile but that it is unusual and the officer can explain why it is suspicious in the particular scenario before him. “ (quoting Veal v. State, 28 S.W.3d 832, 837 (Tex. App.—Beaumont 2000 pet. ref’d). They were exhaustive in analyzing just why the twelve traits the officer (incorrectly) said merited further detention, and it should help form your arguments against RS. Hint: there’s no way to compress this part of the opinion (sorry).

Finally, in note 3, the court threw some major shade at any Memphis High Cyclones out there, suggesting that wearing one of their caps might alone support RS, while wearing a Wellington Skyrockets cap would not. Gotta love it!

Author: txcriminalappeals

Appellate lawyer in Rockwall and Dallas Counties focusing on criminal cases and now accepting civil appeals.