In 2016, Sergeant Brad Conner with Brandon P.D. received a BOLO for a stolen truck traveling westbound on I-20. Conner observed the truck, which matched the BOLO to include the license plate, speeding and stopped the vehicle. Conner got Roosevelt Harris and his son out of the truck and handcuffed them for his protection as he was alone.
After Mirandizing Harris, he told Conner he owned the truck and gave consent to search for documentation of same. Conner retrieved documents (title, bill of sale, registration) that would later prove to be fraudulent. Conner also discovered a sticker VIN which covered the original VIN that confirmed it was a stolen truck.
Harris was convicted of receiving stolen property and sentenced to ten years. On appeal, Harris argued 1) the officer exceeded the scope of the stop by handcuffing him without probable cause for an arrest and 2) consent was fruit of the poisonous tree. MCOA affirmed (they reversed on making fraudulent statements and representations to defraud the government charge because the title application was not given by Harris to the officer – the officer found the title on a consent search).
A. Traffic Stop
Conner testified that he witnessed Harris committing a traffic violation when Harris drove by him at eighty miles per hour in a sixty mile per hour speed zone. In Austin, we said the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
Furthermore, Harris’s truck not only matched the description of the stolen truck but also had the same license plate number identified in the BOLO that the officer had just received. An investigatory traffic stop is permissible where an officer has reasonable suspicion to believe that the occupants of a vehicle have been, are currently, or are about to be involved in criminal activity.
Reasonable suspicion must be grounded in specific and articulable facts and can arise from an officer’s personal observations, a tip by a trusted informant, or even an anonymous tip. Thus, reasonable suspicion is based on something less than the personal observation of a violation of law. Reasonable suspicion is the standard for a stop or frisk based on suspicious activity that does not yet amount to criminal activity, but which compels an officer to believe that criminal activity has happened, is happening, or is about to happen.
Probable cause, on the other hand, is a higher standard and requires a higher level of suspicion than reasonable suspicion. Most traffic stops are based on probable cause because they are based on a law enforcement officer’s direct observation of a traffic violation. An officer who witnesses an actual violation necessarily has probable cause to stop the vehicle.
Based on these facts, we find no error in the circuit court’s determination that Conner had not only reasonable suspicion but also probable cause to conduct an investigatory stop of Harris’s truck. We further find no merit to Harris’s assertion that Conner exceeded the scope of a permissible traffic stop when he asked Harris and his son to exit the truck and then handcuffed them.
In Wrenn, we said that officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop. In Wrenn, the officer’s gun was drawn and the subject was handcuffed when ordered out of his truck. In this case, Conner didn’t draw his gun.
A person’s consent to search must be knowing and voluntary. For consent to be given knowingly, the person searched must be aware he has the legal right to refuse.
In May, we said that voluntariness is determined from the totality of the circumstances. Factors to consider are whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. The court must also look to the individual’s maturity, impressionability, experience, and education. Further, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. If the consent occurred while the defendant was being generally cooperative, the consent is more likely to be voluntary.
Where consent is given, the State is not required to demonstrate knowledge; rather, the burden is on the defendant to show impaired consent or some diminished capacity.
Harris does not dispute that he consented to Conner’s request to search the truck. Nor does he contend that Conner employed coercive tactics to obtain his consent. Additionally, Harris makes no assertion that he was under the influence of alcohol or drugs, or in any way impaired, when he provided his consent.
Harris had obtained some college education, was an experienced business owner, and had prior convictions that afforded him familiarity with criminal justice proceedings. Prior to giving permission to search the truck, Harris had been advised of his Miranda rights and had indicated that he understood his constitutional rights. Conner’s testimony also reflected that Harris was generally cooperative in answering the officer’s questions about the truck’s ownership. The consent obtained in this case was proper.