Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Slightly before 11 p.m. on June 4, 2004, DPS Trooper Eric Gray noticed a van traveling east on I-20 at 77 mph where the speed limit was 65 mph. He decided to stop it for speeding, but after putting on his emergency lights Gray stated that it took between 30 seconds and a minute for the van to come to a complete stop. The officer was driving with a civilian passenger and mentioned to her the suspicion that the passengers in the van may have been trying to conceal something or corroborate stories. When Gray approached the van, he noticed Jenson, who was the driver, and a woman in the passenger seat and a man in the back seat, both of whom were asleep. Gray informed Jenson he had been stopped for speeding and asked him to step to the rear of the van. Jenson complied and proceeded to answer Gray’s questions concerning Jenson’s employment and the purpose of his trip. Jenson told Gray that he worked in construction with his uncle Cotton and that they were traveling to Bryan-College Station to pick up his uncle’s wife. Jenson and his passengers provided Gray with drivers’ licenses, and Gray ran the licenses to determine whether they were valid and whether there were any outstanding warrants. At 11:02 Gray received word from dispatch that the licenses were clear. It is uncertain when Gray gave Jenson the written warning, though it probably occurred before Gray asked Jenson’s permission to search his vehicle. Gray stated he was “probably close to finishing” the warning at the time he heard from dispatch. He could not recall when he returned the license, though he noted it was his usual practice to return it at the same time he issued the warning. Though Jenson was calm and cooperative at the time of the initial stop, he became excessively talkative, answering questions that he was not asked, which Gray surmised to mean he was nervous. Jenson continued to exhibit this behavior even after being issued the warning, which Gray found odd because in his experience, a driver normally becomes less agitated when he realizes he is not receiving a citation. At 11:04 (two minutes after Jenson’s license cleared), Gray again asked Jenson where he worked, and he replied “Tommie and Cotton,” or “Tommie-Cotton,” presumably referring to his construction business with his uncle. Gray then asked Cotton where he worked, and he replied that he was self-employed and that his business did not have a name. Gray found the discrepancy between the two answers suspicious. Gray then asked for Jenson’s permission to search the van, which was granted. There is no indication that Gray, before requesting permission, told Jenson he was free to leave. Gray then told Jenson that he would need to conduct a pat-down search before he could search the vehicle. Gray later testified that it was standard procedure to frisk occupants of a car before proceeding with a search, to ensure the officer’s safety while he was otherwise occupied. Jenson suddenly became upset and complained of harassment. He started emptying his pockets, at which point Gray unholstered his weapon and told Jenson to put his hands behind his back. Gray conducted the frisk and found a pocketknife and a small “two-shooter” gun on Jenson’s person. Gray put Jenson in his patrol car and ran a criminal background check, which revealed that Jenson was a convicted felon. Jenson was brought to jail, where another officer found a bag of marijuana in his sock. Jenson filed, and the court denied, a motion to suppress evidence for violation of the Fourth Amendment. He was convicted of one count of being a felon in possession of a firearm and one count of being an unlawful user of a controlled substance in possession of a firearm. HOLDING:Reversed and remanded for entry of a judgment of acquittal. In this issue of first impression, the court asks whether taking an unusual amount of time to pull over, coupled with nervous behavior by the driver, amounts to reasonable suspicion to justify prolonged detention. The officer here has not articulated any particular connection between the allegedly suspicious behavior and drug or weapons possession, beyond the fact that the driver’s hesitation in pulling over may have been the product of intent to conceal. The government has not shown reasonable suspicion to prolong Jenson’s traffic stop, the court holds. The government contends that, even if the officer unreasonably extended the traffic stop beyond the point at which the van’s occupants’ ID’s were cleared, Jenson’s consent to search cured any Fourth Amendment problem. To determine whether consent was validly given, the court asks (1) whether consent was voluntary and (2) whether it was an independent act of free will. Assuming that the court correctly concluded that consent was voluntary, it committed error by not applying the second prong of the test: whether consent was an independent act of free will. The consent followed closely on the heels of the illegal detention, and there is no evidence that (a) Jenson knew he was free to leave or (b) that his license had been returned to him, both of which might be viewed as intervening circumstances. The police would not have discovered either Jenson’s gun or marijuana but for the search of his person, and the police would not have searched his person had they not illegally extended the stop beyond the time when reasonable suspicion expired. Therefore, the evidence is fruit of the poisonous tree and must be suppressed. OPINION:Jerry E. Smith, J.; Smith and Stewart, JJ., and Crane, district judge.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.