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How to Avoid Trouble When Pulled Over By State Troopers

My name is Michael Lowe. I’m a criminal defense lawyer here in Dallas, Texas, board certified in criminal law. I’ve been representing clients here in the State of Texas for 20 years. Today, I want to talk to you about drug investigations conducted by state troopers on Texas highways. I want to talk about five different topics related to drug investigations.

Overview

  1. Top Traffic Violations

These are the top traffic violations that state troopers use to stop individuals and conduct drug investigations in the State of Texas.

  1. Pretext Reasons

Pretext reasons are the real reasons why state troopers target certain individuals traveling across the highway in the State of Texas for a drug investigation.

  1. Legal Scope of a State Trooper

The legal scope of what a state trooper can do to you on the side of the highway and what the limits of their rights are.

  1. Goals of the State Troopers

These are the real goals of the state trooper when they’re conducting a drug investigation.

  1. Techniques Used by State Troopers

Finally and most importantly, I want to share with you my 20 years of experience both as a prosecutor and as a defense lawyer concerning the different techniques that state troopers are trained to use in order to further their goals and take away your rights.

Before we get started I want to make sure you understand that the purpose for this video is for individuals who are traveling in the State of Texas to travel freely pursuant to their constitutional rights to travel throughout the United States. The purpose of this video is not to assist anyone conducting unlawful activity, whether it be a violation of state, Texas law, or a violation of federal law. It is not my intention to assist anyone breaking the law. And if you are breaking the law, you should not break the law in the State of Texas.

Common Traffic Violations

Before the state trooper can pull a vehicle over, the state trooper must first establish probable cause, and probable cause is defined as any violation of the law. And typically, state troopers are going to rely on traffic violations, and in Texas, there’s thousands of traffic violations. I just want to discuss my top-five list of the most common traffic violations that state troopers will look for in order to establish probable cause against the drivers of vehicles whom they’ve predetermined that they want to conduct a drug investigation against.

  1. Following Too Closely

The top traffic violation that I’ve seen is following too closely, and following too closely is simply following the vehicle in front of you too closely or less than three seconds. And this can be measured by a fixed object on the side of the road, that is as the car in front of the driver passes the fixed object, the fixed object reaches the driver’s vehicle less than three seconds later.

  1. Driving in the Passing Lane

Another traffic violation I’ve commonly seen is driving in the passing lane. Most folks don’t realize, but in the State of Texas, there are usually two highway lanes. The furthest left lane is the passing lane, and that lane should only be used for passing another vehicle.

  1. Driving Over the Fog Line or Driving onto the Shoulder of the Highway

The fog line is the white line that separates the shoulder of the highway from the main highway.

  1. Speeding
  2. Changing Lanes Without Signaling

Pretext Reasons

Now that we’ve talked about the probable cause reasons that state troopers will use to pull vehicles over to conduct drug investigations, we should talk about the real reasons, the reasons I call pretext reasons why state troopers will identify certain vehicles to conduct drug investigations against the drivers of those vehicles. So I want to give you my top-five list of pretext reasons.

  1. Out of State Plates
  2. Rental Vehicles

Most people don’t realize this, but rental vehicles have a sticker on the side window that can easily identify the vehicle as a rental vehicle.

  1. Young Driver
  2. Vehicles Traveling in Groups
  3. Large Vehicles with a lot of luggage

These are my top five pretext reasons why state troopers will identify certain vehicles to establish probable cause so that they can conduct a drug investigation on the side of the highway.

Limiting the Scope of Investigation

Most often we hear about individuals having certain constitutional rights. But now I want to shift gears and talk about some of the rights of the state trooper. That’s right, you heard it, state troopers do have rights. But in this context, those rights are limited in scope and the limitation for those rights are actually laid out in a U. S. Supreme Court case called Rodriguez versus United States 2015. And so I want to talk about the five things that Rodriquez says a police officer can do when they’re conducting a traffic violation stop against a citizen or any individual in the United States.

  1. Check for Valid Driver’s License
  2. Check for Valid Insurance
  3. Check Vehicle Registration to ensure it is not stolen
  4. Check the Occupants for Warrants
  5. Traffic Violation

These are the five things that Rodriguez says a state trooper can do on the side of the highway.

Goals of the State Troopers

Once the state trooper has established probable cause to stop a vehicle and the state trooper has also determined that they want to conduct a narcotics investigation or a drug investigation on the side of the highway, the state trooper will have certain goals in mind that they want to accomplish in order to further their investigation. And in order to accomplish their goals, they know that they must consequently try to take away some of your rights so that they can further their goals. And so I want to talk about the different goals that a state trooper may have when they’re conducting an investigation, and think of this more as not a top three list but more of a checklist that the state trooper is going to go down, and the checklist goes in order.

  1. Consent to Search

So the first thing the state trooper is going to try to do is to get the driver of the vehicle to give consent to search. And this is typically done in a very casual way. The state trooper will ask the driver, “Hey, do you mind if I search your vehicle for illegal narcotics or weapons?”

  1. Probable Cause to Search

If the driver of the vehicle refuses the consent, the next thing on their checklist to check for is probable cause to search. Probable cause is established by the smell of marijuana or plain view, something illegal inside the vehicle, for example, an illegal narcotic or an open container.

  1. Use a Drug Dog to Gain Probable Cause

The next thing after that if the state trooper cannot establish the first two things on their checklist is to get the drug dog to come to the side of the highway and establish probable cause through the use of a drug dog. Yes, you heard that correctly. The U. S. Supreme Court in a case called Caballes has established that police officers can use drug dogs. The scent of the drug can be detected by the dog and the dog can hit on the vehicle and determine probable cause to search the vehicle.

Now whether you think this is a reliable science or whether these drug dogs actually work or not is sort of beside the point when you’re on the side of the highway. The point of this presentation is really to preserve your rights, not to fight over whether the drug dog is legitimately used. That can be challenged in court later sometimes.  So in order for the state trooper to use a drug dog most of the time, the state trooper is not going to have the drug dog with them. They have to call another state trooper to bring the drug dog there. And as we talked about before, the state trooper has a very limited scope according to Rodriguez as to what they can do. They can really only do five things, and the one thing that they can do that can extend the traffic stop is very limited. They can only investigate a traffic violation. So the goal of the state trooper at that point is to what I call, “Extend the scope,” of the investigation. And the techniques that they use to extend the scope of the investigation we can talk about later, but I just want to discuss right now why they do that.

Why State Troopers Extend the Scope of the Investigation

Rodriguez says that they can extend the scope of the investigation for the drug dog to get to the scene if they first establish reasonable suspicion that a crime has been committed or is about to be committed. And in order to establish reasonable suspicion, they must be able to come to court and articulate certain facts that can establish a crime having been committed or about to be committed. And those are articulable facts as they’re known in the case law are established through certain techniques that these troopers are trained to elicit from the driver or passengers of the vehicles they’re investigating, and we’ll discuss those techniques in a little bit.

Techniques Used by State Troopers

So what happens if the driver of the vehicle doesn’t give consent to search and there’s not probable cause for the state trooper to search the vehicle but the state trooper nevertheless wishes to search the vehicle? Well, the state trooper is trained to use certain techniques to establish reasonable suspicions so that they can extend the detention for a sufficient amount of time for the drug dog to get there and hit on the vehicle to establish probable cause to search the vehicle. So I want to give you my top five list of the techniques that I’ve seen the state trooper use in order to establish the facts that are needed to extend the detention.

  1. Incoherent Story

The number one technique I’ve seen is called the incoherent story.  And this incoherent story technique is simple. The state trooper will ask the driver, “Where are you coming from and where are you going to?” And if the story doesn’t make any sense, then the state trooper can use that as a fact to establish a reasonable suspicion to extend the detention.

An example of this would be a case that I once had. I had a client who lived in San Diego, California, and he told the state trooper that he flew from San Diego, California all the way up Humboldt County, rented a vehicle there, a minivan, and drove that vehicle all the way through the State of Texas on his way to Florida. And so the state trooper simply asked him, “Why did you fly from San Diego to Humboldt but then drive from Humboldt all the way to Florida?” And his answer didn’t make any sense. That’s an example of an incoherent story.

  1. Inconsistent Story

Another technique that’s used is what’s called the inconsistent story, and this is used in situations where there’s a driver and a passenger. So if the state trooper has a driver and a passenger, he’s trained to separate the driver and the passenger and ask them where are they coming from, where are they going to. And if their stories don’t match up, then that can be used as an articulable fact to establish reasonable suspicion of drug trafficking activity and extend the detention so that the drug dog can get there.

What’s an example of an inconsistent story? Well, if the driver tells the state trooper that he’s going to visit a friend in Florida, and the passenger says, “Well, we’re going to visit grandma in Massachusetts,” well, that’s an inconsistent story.

  1. Luggage

The luggage in the vehicle has to match the length of the duration of the trip. For example, if the driver says that, “I’m driving to Florida for a three-day trip,” but has enough luggage in the vehicle to last a month, then the state trooper is going to be suspicious about what’s inside that luggage.

  1. Rental Issues

Another technique that’s used to establish there’s a problem with the rental car itself or the rental car paperwork. For example, if the driver tries to disguise the fact that it is a rental car by taking the rental car stickers off the car or putting bumper stickers on the car or using air freshener, that can be the basis for a reasonable suspicion. Furthermore, if the rental car agreement name doesn’t match the driver’s name, that can also be used.

  1. Criminal History

And finally, the state trooper is trained to ask the driver about his or her criminal history, and if the driver makes false statements about his or her criminal history, that can be used to further the detention.

Tips When Dealing With State Troopers

Finally, I want to talk to you about some of the techniques that you can use to prevent the trooper from taking your rights away from you as you’re traveling through the State of Texas on your way. I’m going to give you my top techniques.

  1. Limit Your Conversation

It’s okay to talk to the trooper and be polite and be respectful. You should do that, but you should limit your conversation. If the trooper asks you where you’re coming from and where you’re going to, you can answer that question in a coherent, complete fashion but nothing more. If the trooper persists in asking additional questions about your background, your family, your friends, your education, where you work, what you do, how much money you make, you can simply ask the trooper, “Am I required to answer these questions?” And you can also ask the Trooper, “Am I being detained?” “Why am I being detained?” You should ask those questions instead of answering his questions because he has a microphone on his body, a body mic, and all of these is recorded, usually on a dash cam. You should not answer any of those additional questions.

  1. Don’t Answer Questions About Your Criminal History

If the trooper asks you questions about your criminal history, you should simply refer the trooper to the computer. Simply tell the trooper, “Why don’t you look on the computer and see what my criminal history is?” You’re not required to answer any questions about your criminal history.

  1. Don’t Smell Suspicious

You should make sure you don’t smell like marijuana, alcohol, or air freshener.

  1. Don’t Be Under the Influence While Driving
  2. Make Sure All Renter’s Paperwork is Accurate

Make sure that the name on the rental agreement is your name and make sure you have current insurance.

  1. Never Give Consent to Search Your Vehicle

Finally and most importantly, never, ever, no matter what give consent to let the trooper search any part of your vehicle.

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For more information, check out our web resources and read Michael Lowe’s Case Results


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  • Roger Joiner

    State law does NOT authorize the stopping, detaining, arresting or impounding of persons or cars for lack of registration, a driver’s license, or for lack of proof of/actual financial responsibility. The “Registration” chapter is Chapter 502, the “Driver’s License” chapter is Chapter 521, and the “Financial Responsibility Act” is codified in Texas “Transportation” Code Chapter 601.

    The statutory authority for ANY “authorized” officer to make a WARRANTLESS arrest relating to a “transportation” ‘offense’ is found in Sec. 543.001, “Transportation” Code. The warrantless arrest power given is specially and specifically limited by Sec. 543.001 to ONLY those offenses specifically codified “in this subtitle,” meaning Subtitle C of the “Transportation” Code. When you look, you can easily see that Subtitle C encompasses “Transportation” Code Chapters 541 – 600 inclusive. Everything in Subtitle C, other than Chapter 548 Compulsory Inspections, are either moving or mechanical ‘offenses.’

    Notice that the “Registration,” “Driver’s License,” AND “Financial Responsibility Act” chapters ALL fall OUTSIDE of the aforementioned chapters legislatively authorizing warrantless arrest.

    The prosecutor and/or the judge WILL try to argue that the officer IS authorized to perform a warrantless arrest for such ‘offenses’ under the provisions of Art. 14.01(b), Texas Code of Criminal Procedure. The problem with that assertion and foundational argument is that it runs head-first into the judicial rules of statutory construction that the courts themselves have developed.

    One of the primary points of these rules is this, where a statute within a particular code creates a local and specific element or condition to some subject matter controlled by that code, that code’s local provision supersedes and controls over ANY general statute dealing with the same subject matter, unless the local provision specifically states that the general provision will control.

    Well, Art. 14.01(b) of the Code of Criminal Procedure IS a general statute, while the provisions of Sec. 543.001 are local and specific to the “Transportation” Code and makes no mention of Art. 14.01 as being controlling in that instance. Therefore, the rules of statutory construction automatically limit the applicability of any law enforcement officer’s GENERAL authorization to make warrantless arrests under Art. 14.01(b) to those ‘offenses’ that are NOT related to the Texas “Transportation” code.

    In this particular case, the “same subject matter” IS the statutory authority to perform a warrantless arrest for an ‘offense’ allegedly committed in the arresting officer’s “presence or view.” Therefore, the argument is that that “Transportation” Code’s local and specific provision controls over the Code of Criminal Procedure’s general provision in this instance, limiting the officer’s power of warrantless arrest to ONLY those ‘offenses’ found in Subtitle C of same.

    This would tend to work the same way with the towing thing. No authorization exists in statute to tow the car, just as there exists no authorization to perform a “transportation” stop in relation to a license plate scan or computer retrieval that comes back saying “no insurance.” This ALSO becomes an issue because, under Texas case law, the information that comes back to the officers on their cruiser computer is HEARSAY in a court of law, and it is INADMISSIBLE if properly challenged. Therefore, the computer information alone CANNOT be the basis for a seizure any more than it can be for a warrantless arrest. The city is deemed to know and understand this fact, and is opening themselves up to a major law suit for doing it in the first place.

    Finally, there is the issue of Sec. 601.053, “Transportation” Code, in relation to the ‘offense’ of “Failure to Maintain Financial Responsibility,” and that is that it’s completely repugnant to the right of due process, making it UNCONSTITUTIONAL. The statute does three very unlawful things in relation to the right of due process. It unlawfully requires production of potentially incriminating information to an officer, it reverses the burden of proof, taking it from the shoulders of the State and shifting it to the back of the accused, and it makes a presumption of guilt over innocence if the accused fails to provide actual evidence that s/he is NOT guilty. Consider the language it uses by reading just the underlined parts of the statute:

    Sec. 601.053. EVIDENCE OF FINANCIAL RESPONSIBILITY.

    (a) As a condition of operating in this state a motor vehicle to which Section 601.051 applies, the operator of the vehicle on request shall provide to a peace officer, as defined by Article 2.12, Code of Criminal Procedure, or a person involved in an accident with the operator evidence of financial responsibility by exhibiting:

    (b) Except as provided by Subsection (c), an operator who does not exhibit evidence of financial responsibility under Subsection (a) is presumed to have operated the vehicle in violation of Section 601.051.

    (c) Subsection (b) does not apply if the peace officer determines through use of the verification program established under Subchapter N that financial responsibility has been established for the vehicle. If a peace officer has access to the verification program, the officer may not issue a citation for a violation of Section 601.051 unless the officer attempts to verify through the program that financial responsibility has been established for the vehicle and is unable to make that verification.

    Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 18.06, eff. Sept. 1, 1997.

    Amended by:

    Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 15A.01, eff. September 1, 2009.

    Acts 2013, 83rd Leg., R.S., Ch. 153 (S.B. 181), Sec. 1, eff. May 24, 2013.

    Subsections (a) and (b) are responsible for the primary and readily evident due process violations previously mentioned. And you can see that subsection (c) also has issues with violating due process through lack of probable cause, as it does not take into consideration the possibility of the system not having accurate and up-to-date information, even if the officer does have access and gets back bad info, which they very often do. Nor does it make any exception that denies the officer the ability to issue a citation if s/he does NOT have access to the verification system.

    This act and its related statutes are just constitutionally reprehensible all the way-round in the denying and destroying of due process and probable cause, along with the rights of the accused to both, by its blatant attempt to ignore or destroy them altogether.

    The ONLY places that speak directly to a municipalities ability to have municipal police officers certified to enforce the Texas “Transportation” Code are found in the Texas Administrative Code, NOT the “Transportation” Code.

    Start here, especially within §1.2 as to what the “Mission” is, and then look at §§1.3-1.5 to see what programs are specific to that “mission”:

    http://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC

    Then here, especially §4.13:

    http://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC

    Then you can go here and read up in Chapters 15, 16, 17, 21, 23, and 25 for more details about each of the programs specifically if you are so inclined.

    http://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC