In a remarkable decision, Chief Justice Brian Quinn of the Texas Court of Appeals, Seventh District at Amarillo, does something that could destroy the very foundation of the criminal justice system. He’s intellectually honest.
A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, Contreras v. State, 309 S.W.3d 168, 171 (Tex. App.—Amarillo 2010, pet. ref’d), or looking at a peace officer, Gonzalez- 2 Galindo v. State, 306 S.W.3d 893, 895-96 (Tex. App.—Amarillo 2010, pet ref’d), Contreras v. State, 309 S.W.3d at 171; or looking away from a peace officer, GonzalezGalindo v. State, 306 S.W.3d at 896; or a young person driving a newer vehicle, Gonzalez-Galindo v. State, supra; or someone driving in a car with meal wrappers, Deschenes v. State, 253 S.W.3d 374, 383 (Tex. App.—Amarillo 2008, pet. ref’d); or someone driving carefully, Contreras v. State, supra; or driving on an interstate, see Clatt v. State, No. 07-07-0130-CR, 2008 Tex. App. LEXIS 7250, at *2 (Tex. App.— Amarillo September 29, 2008, no pet) (mem. op., not designated for publication) (wherein the official testified that I-35 was a “drug corridor”), most anything can be considered as indicia of drug trafficking to law enforcement personnel. Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”).
Whoa. And what, you may ask, makes a spaghetti eater suspicious?
That is the hurdle we once again face here, and it is made difficult to clear due to the unasked questions by the State about the “knowledge, experience, and training” of its sole witness.
A police officer takes the witness stand and testifies as to what aspect of the defendant’s conduct gave rise to a reasonable, articulable suspicion that he might be engaged in criminal conduct, thus justifying the seizure or extension of the seizure. The first step is stating something, like “he drove the speed limit, which is typical of drug dealers seeking to avoid attention from police.”
How does he know this? Based upon his training and experience. It’s tattooed in every cop’s brain.
Makes perfect sense, right? If you’ve got 20 keys of coke in the trunk, wouldn’t you want to avoid drawing the attention of police? Of course, if you don’t, and you just obey the speed limit, your conduct looks just like this drug mule’s conduct. Ruh roh.
Whether those innocent activities is enough to create reasonable suspicion that crime is afoot depends on whether they indicate the imminence of criminal conduct when viewed as a whole….
To reiterate what we said in Gonzalez-Gilando, just because that bald guy committed a crime while wearing a suit and after eating spaghetti does not mean that other bald guys who wear suits while eating spaghetti are about to engage in crime too.
The word “rhetoric” is often used, especially here, to explain the distinction between a logical argument and stringing words together that give rise to some superficially viable contention that is unproven. Rhetoric is the art of persuasive communication. It doesn’t have to be true or accurate, just sufficient to be persuasive. And the less demanding we are, the less persuasive it has to be to suffice.
To one trained and experienced in the fields of law enforcement, smuggling, human behavior, and drug interdiction, each of the aforementioned indicia have special significance, opined by the deputy here. Yet, what of the deputy’s training and experience and knowledge — what does the record say about it. Our answer is, not much.
Chief Justice Quinn goes on to detail the officer’s recitation of his law enforcement “experience,” which provides no substance to explain much of anything. Notably, the court takes for granted that even if he did go into his training and experience in great depth, it would be accurate and truthful.
Labels themselves mean little, and care must be taken to avoid assigning some level of substance to them merely because they may sound important. And, aside from the deputy simply invoking his “knowledge, training and expertise,” the State did little to illustrate of what it consisted or how it was garnered.
Labels are rhetorical shortcuts. They save us from the burden of having to endure lengthier rhetoric. How, then, to salvage the criminal justice system? More rhetoric:
One cannot ignore the fact that when it comes to uncovering or investigating crime, law enforcement personnel approach the status of experts. Such are not areas or fields generally within common knowledge.
The reasoning may be inductive. The rhetoric may apply with equal force to everything such that no matter what’s observed, there is a spin that will create the appearance that it’s somehow evidence of nefarious conduct afoot. But the message is proffer more rhetoric to bolster the label of “expert” and take the burden off the judge of having to think too hard.
Chief Justice Brian Quinn’s opinion reflects intellectual honesty. The upshot is that the legal system will still believe any nonsensical lie told by a cop on the stand if the prosecution fleshes it out with enough background fluff to satisfy the demand of creating the appearance of expertise.
Now, there’s honesty for you. You’re still screwed, but it will take another fifteen minutes of unprovable crap to make it stick.