Terry vs. Ohio gave us the Terry stop, in which cops can investigate a situation that looks an imminent crime, but where no crime has yet occurred. In Terry, an officer saw individual casing an establishment and he approached to see if a burglary was nigh.
Since then, officers have been able to prevent and investigate imminent crimes. All SCOTUS required was the officer articulate facts showing a particular crime was about to committed. With that background let’s go to our most recent appellate disaster,Derishweiler vs. State-
Facts- Derischweiler was in a McDonald’s parking lot. Derischweiler drove by a car occupied by a paranoid couple of modern day hall monitors, the Holdens. Derisch drove by 2 or 3 times, each time smiling and staring at the Holdens for 10-20 seconds. Naturally, the Holdens did what all beta loser couples do, they demanded immediate state intervention and called 911.
On a side note- I’m not sure the Holdens are capable of functioning in a free society. Perhaps they would prefer a safer country like North Korea, where nothing weird ever happens. Their baseless fear means we all have to lose our 4th Amendent rights. Thanks guys.
Some bored rookie cop shows up with a report of a “suspicious driver” and dutifully pulls over Derischweiler. Bored Rookie Cop did not see Derishweiler commit any offense, nor could BRC articulate any offense that Derisch was about to commit. In short, he pulled him over on an inarticulable hunch, the kind that Terry prevents. Derishweiler was eventually arrested for DWI and convicted. Derisch appealed his conviction, arguing the stop to be FUBAR.
Issue- Can cops pull over whoever they want, without any reason to believe a particular crime has been or will soon be committed?
Holding- It’s ok for cops to detain you without any evidence you have committed, or are about to commit a specific crime as long as a majority of CCA judges believe the conduct is sufficiently bizarre and “related to crime.”
From the majority opinion-
“The appellant’s conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability–a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.”
Here is a cross examination moment from my future-
Me- Why did you stop my client?
Cop- I had reasonable suspicion.
Me- Reasonable suspicion of what?
Cop- Activity related to crime.
Me- Related to crime? What the hell does that mean?
Cop- I’m not sure, but some prosecutor sent a memo that we should put that phrase in all our offense reports when we pull someone over without cause, along with “totality of the circumstances.”
Me- Well, what crime was his activity related to?
Cop- I’m not sure, just crime in general.
Me- Here’s a copy of the penal, transportation, and health and safety codes. Can you show us one crime that you had a reasonable suspicion was about to be committed?
Cop- No, but his behavior struck me as bizarre, and that’s enough in Texas.
We have created a new class of verboten activity in Texas. Anything sufficiently weird that is “related to crime” is enough to bring on the wrath of the police state. Texas has thousands of offenses, how “related” to crime can conduct be if an officer can’t articulate one actual real life crime that has been or will soon be committed?
This Orwellian logic gives cover to racial profiling, paranoid busybodies, and crooked officers looking for a reason to harass their enemies. We traded one more piece of the 4th Amendment, to save a meaningless DWI conviction.