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Hereford v. State

Appellant was arrested for misdemeanor traffic warrants. After the police placed appellant in the back of the police car, officers noticed that he was hiding something that they assumed was cocaine in his mouth. Officers were able to remove crack cocaine from appellant's mouth and hand after repeated use of Tasers and with the assistance of medical personnel. Appellant was charged with possession of a controlled substance with intent to deliver. The jury found appellant guilty of the offense. The court of appeals reversed appellant's conviction and remanded the cause for a new trial. In its ruling, the court found that, given the totality of the circumstances, the force used by the officers to recover the drugs was excessive and unreasonable and held that the trial court had erred in denying appellant's motion to suppress, an error deemed harmful because it affected the outcome of the trial. The state's petition for discretionary review was granted to determine whether the court of appeals erred in reversing the trial court's denial of the motion to suppress and whether the repeated use of a Taser "to prevent a potentially fatal overdose" is inherently excessive and unreasonable. The court of appeals properly deferred to the trial court when the trial court's findings were supported by the record. The judgment of the court of appeals and its finding that the force used to seize evidence in this case was excessive and, therefore, unreasonable is affirmed. 5th U.S. Circuit Court of Appeals, No. PD-0144-10, 04-06-2011

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Johnson, J., delivered the opinion of the Court in which Meyers, Price, Keasler, Hervey, and Cochran, JJ., joined. Womack, J., concurred. Keller, P.J., dissented.

OPINION

Appellant was arrested for misdemeanor traffic warrants. After the police placed appellant in the back of the police car, officers noticed that he was hiding something that they assumed was cocaine in his mouth. Officers were able to remove crack cocaine from appellant’s mouth and hand after repeated use of Tasers and with the assistance of medical personnel. Appellant was charged with possession of a controlled substance with intent to deliver: cocaine. Appellant filed a motion to suppress the evidence based on his claims that the officers lacked probable cause to arrest him and used unreasonable force to recover the drugs he held. The trial court denied appellant’s motion because the arrest of appellant was based on existing arrest warrants. During the guilt phase of trial, appellant renewed his suppression motion and objected to the admission of all of the state’s evidence derived from the officers’ actions. The trial court again denied appellant’s motion, but granted appellant’s running objection. The jury found appellant guilty of the offense charged and assessed appellant’s punishment at 50 years’ imprisonment and a $10,000 fine.

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