The Llano Ledger
Newsletter Text V82
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Publisher's Note: Posting of the March 12, 2001 Newsletter has
begun early. Be sure to read the current edition, March 5, 2001 on
Newsletter Text V81. T.C. March 8, 2001.
*************March 12, 2001*************
Before continuing with the Mirelez series of articles in this edition,
posting of a Court of Appeals opinion highly unflattering to the 33rd
Judicial District Narcotics Enforcement Team (NET) will begin. Quite
apparently, lying is endemic to this abusive Nazi police agency, as
will be demonstrated by the following document.
... Finally, something positive can be said of Llano County Judge J.P.
Dodgen, however. -- It's been a long time coming, right J.P.? All
joking aside, his order granting appellee John Thomas Daly's motion to
suppress illegally and unconstitutionally obtained evidence was upheld
by the Court of Appeals. -- Indeed, a victory for the Fourth Amendment.
As many readers may know, Robert Byler is a San Saba police "officer"
permanently assigned to NET. Why? It was a convenient and expedient way
to get this highly abusive "officer" out of San Saba at least part of
the time. ... Dear Ole' Bob's Nazi reputation rivals that of NET
Sergeant Brent Nichols'. ... Something to be intensely proud of, right,
"Boys"? -- Nothing quite like a little "sibling" rivalry, no?
Sadly, what is graphically detailed in the following judicial
opinion regarding Byler is equally applicable to other NET "officers".
It provides valuable insight into how this highly abusive, corrupt Nazi
organization operates. This writer has taken the liberty of injecting
biting commentary in Publisher's Notes sprinkled throughout the
document:
"Court of Appeals of Texas, Austin.
The STATE of Texas, Appellant,
v.
John Thomas DALY, Appellee.
No.03-00-00244-CR.
December 21, 2000
FROM THE COUNTY COURT OF LLANO COUNTY, NO. 11,147, HONORABLE J.P. DODGEN, JUDGE PRESIDING.
Before Justices JONES, KIDD and YEAKEL.
KIDD.
*1 The State appeals the county court's order granting appellee
John Thomas Daly's motion to suppress evidence. See Tex.Code
Crim.Proc.Ann. art. 44.01(a)(5) (West Supp.2000). The underlying
prosecution is for possession of less than two ounces of marihuana. See
Tex. Health & Safety Code Ann. Ch.481.121(a), (b)(1) (West
Supp.2000). We will affirm the order.
On April 14, 1999, Daly was driving through the Hill Country with
his wife and one-year-old daughter, looking at the wildflowers. At
12:30 that afternoon, they were stopped on Highway 29 about four miles
west of Llano by Robert Byler, a San Saba police officer permanently
assigned to the 33rd Judicial District Narcotics Enforcement Team.
Officer Byler, who was patrolling the highway in a marked vehicle,
testified that he stopped Daly after seeing him make a turn without
signaling. Daly and his wife testified that Daly did signal the turn.
The roadside encounter following the stop was videotaped by a
camera mounted in Byler's patrol vehicle. The videotape was introduced
in evidence, and we have watched it during our review of the record.
The officer was dressed in his "NET uniform": black shirt, black
utility pants, and black combat-style boots. He did not carry his
pistol in the usual Sam Browne belt, but instead had it strapped to his
thigh. Byler introduced himself to Daly as being with "State
narcotics." Byler explained to Daly why he had been stopped, took
Daly's driver's license, and returned to his patrol vehicle, leaving
Daly standing at the rear of his car. A radioed check disclosed no
outstanding warrants for Daly. Byler returned to Daly and issued him a
warning for failing to signal his turn. [FN1]
******************
FN1. Although Byler was ostensibly on traffic patrol, he testified
that he was not provided a book of "regular citations," and carried
only warning tickets. It seems apparent from the records that Byler's
primary interest was narcotics interdiction. On the videotape, Byler
tells Daly that the improper turn "gave me a reason to stop you."
******************
At this point, there is a conflict between the testimony at the
suppression hearing and the events shown on the videotape. [Publisher's
Note: ... Translation? Byler lied. T.C.] Byler testified that after
issuing the warning, he returned Daly's driver's license and told him
he was free to go. Daly testified that he did not remember Byler
returning his license and that Byler did not tell him he could leave.
The videotape shows that the officer did return Daly's driver's
license, but that he did not tell Daly he was free to go. Instead,
Byler asked Daly if he would mind answering some questions. [FN2] Daly
replied that he did not mind. At the hearing, Daly explained that he
believed that he was in no position to ignore Byler's questions and
walk away "unless he gave me my license and that piece of paper and
said, 'You may go.'" Daly added, "I never heard or felt that I was free
to go... I wouldn't leave until the officer would say, 'Okay. You can
go,' you know. And I never heard that. Believe me, I would have gotten
in my car and gone." Daly also said that Byler's appearance that
afternoon "was downright scary to me," citing the officer's all-black
uniform, sunglasses, and low-slung pistol.
*********************
FN2. Byler testified that the purpose of the questioning was to
develop reasonable suspicion of a narcotics violation. According to the
officer, "We're trained to go through conversations or look--while
you're standing at the window look for any paraphernalia or anything.
That way you can develop reasonable suspicion before you ask for
consent to search."
*********************
Byler began his questioning by asking Daly if he had ever been
arrested. [FN3] Daly admitted that he had. Thereafter, in response to a
series of questions by the officer, Daly revealed that he had been
arrested for driving while intoxicated and for possession of marihuana,
the latter offense occurring in the 1970's. After asking Daly for other
details regarding the marihuana possession, Byler inquired when Daly
had last smoked marihuana. Daly told the officer that it had been
several weeks earlier. Byler asked if Daly "had any pot on [him]," Daly
said he did not. The officer then asked if Daly had any "roaches"
(butts of smoked marihuana cigarettes) in the car. Daly told Byler that
there was a roach under the floor mat on the driver's side of the car.
*********************
FN3. The offer testified that this was a "standard question" he was
taught to ask at "interdiction schools." Byler stated, "I usually ask
it, no matter what."
*********************
*2 Byler frisked Daly, asked Daly's wife and child to get out of
the car, and retrieved the remains of the marihuana cigarette. Byler
then asked for and received Daly's permission to search the car. The
officer found a pill in the glove compartment. Daly testified that this
was an analgesic for which he had a prescription.
Daly's motion to suppress challenged the legality of both the
initial stop and the subsequent questioning and search. [FN4] The
county court granted the motion in a written order. In the order, the
court expressly declined to rule on the propriety of the stop, citing
the "conflicting evidence". [Publisher's Note: The Founders must be
rolling in their graves. T.C.] Assuming the propriety of the stop, the
court went on to find that Daly was lawfully detained while Byler
checked for outstanding warrants and issued the written warning. The
court concluded, however, that Daly was unlawfully detained thereafter,
and that his consent to the questioning and search was involuntary.
**********************
FN4. The motion cited article 38.23, the Texas exclusionary rule,
but did not specify the constitutional provision or law allegedly
violated. See Tex.Code Crim.Proc.Ann. art 38.23 (West Supp.2000). The
State did not challenge the adequacy of the motion. It was Daly's
contention at the hearing that Byler's actions violated the federal and
state constitutional guarantees against unreasonable searches and
seizures. See U.S. Const. amend. IV; Tex. Const. art.I, Ch.9.
**********************
An "average" citizen (definition being a citizen not fully versed
in applicable law and one not accustomed to questioning by law
officers) will be marginally intimidated by a uniformed officer. They
normally would not know that they are "free to go" when the cause of
detention is completed.
Notwithstanding that the defendant had a prior criminal history, he
obviously did not know he was no longer being detained and was "free to
go." It further is the opinion of the court that the officer's uniform
(described during testimony as a "SWAT uniform and only seen on TV")
was intimidating to the defendant to the point that he felt
uncomfortable and therefore an element that led him to feel compelled
to not leave. Questioning for the purpose of developing reasonable
suspicion was congenial and appropriate in the opinion of the court,
although the detention after conclusion of the traffic stop is another
question. [Publisher's Note: Again, the Founders must be rolling in
their graves at the first half of the last sentence. T.C.}
The court rules that consent to questioning and search of the vehicle
were involuntary, based on the aforementioned reasons, all evidence is
suppressed subsequent to issuance of the traffic citation, and the
Motion to Suppress is GRANTED in its entirety.
The standard of review on an appeal from an order granting or
denying a motion to suppress evidence is as follows:
[A]s a general rule, the appellate courts should afford almost total
deference to a trial court's determination of the historical facts that
the record supports especially when the trial court's fact findings are
based on an evaluation of credibility and demeanor. The appellate
courts ... should afford the same amount of deference to trial courts'
rulings on "application of law to fact questions," also known as "mixed
questions of law and fact," if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor. The
appellate courts may review de novo "mixed questions of law and fact"
not falling within this category. Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App.1997)(citations omitted).
*3 A traffic stop is a Fourth Amendment seizure analogous to a
temporary detention. Berkemer v. McCarty, 468 U.S.420,439 (1984);
Delaware v. Prouse, 440 U.S. 648, 653 (1979). The detention may last no
longer than is necessary to effectuate the purpose of the stop. Florida
v. Royer, 460 U.S. 491 ,500 (1983). A detention becomes unreasonable
when it is not reasonably related in scope to the circumstances which
justified the detention in the first place. Davis v. State, 947 S.W.2d
240,244 (Tex.Crim.App.1997)
Daly was stopped solely on the basis of the observed traffic
violation. There is no evidence of any suspicious behavior or
incriminating circumstance arising after the stop that would have
warranted the officer in detaining Daly beyond the time needed to issue
the warning ticket. Indeed, Byler acknowledged at the hearing that
after the ticket was issued, "Our business was concluded."
Nevertheless, Byler thereafter sought to question Daly for the purpose
of "developing reasonable suspicion." But the existence of reasonable
suspicion must precede a detention; a detention that is not based on
reasonable suspicion is unlawful. Terry v. Ohio, 392 U.S. 1, 30 (1968);
Davis v. State, 829 S.W.2d 218, 221 (Tex.Crim.App.1992). On this
record, there was no basis for continuing to detain Daly after the
traffic warning was issued.
The State argues that Daly was not detained beyond the issuance of the
warning ticket. Instead, the State contends Daly voluntarily remained
at the scene to answer the officer's questions.
The Fourth Amendment does not proscribe voluntary cooperation. Florida
v. Bostick, 501 U.S. 429, 439 (1991). A police officer may approach a
citizen without probable cause or reasonable suspicion to ask questions
or even to request a search. Florida v. Royer, 460 U.S. 491, 497-98
(1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995).
[Publisher's Note: Again, the Founders must be turning in their graves,
particularly over the latter portion of the last sentence. T.C.] "When
officers have no basis for suspecting a particular individual, they may
generally ask questions of that individual... as long as the police do
not convey a message that compliance with their requests is required."
Bostick, 501 U.S. at 435. As long as the citizen to whom the officer
puts the questions remains free to disregard the questions and walk
away, neither the Fourth Amendment nor article I, section 9 is
implicated. Royer, 912 U.S. at 497-98; Johnson, 912 S.W.2d at 235.
[Publisher's Note: Notice how the Fourth Amendment has been bastardized
by the courts with each subsequent ruling over a period of many years?
T.C.]
Whether a person's consent was in fact voluntary or was the product
of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances. Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). The State must show by clear and
convincing evidence that consent was voluntarily given. State v.
Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App.1997). "'Consent' that is the
product of official intimidation or harassment is not consent at all."
Bostick, 501 U.S. at 438. [Publisher's Note: Well, duh. When the hell
are our corrupt and abusive prosecutors finally going to wake up?
Right, Sam? Cheryll? T.C.]
*4 The county court concluded that Daly did not voluntarily consent
to Byler's questioning or to the search of his car on the basis of two
findings. First, the court found that an average citizen will feel
"marginally intimidated" by a uniformed officer, and that Daly himself
felt uncomfortable in the presence of Byler's SWAT-style uniform.
"[M]ost confrontations with the police are uncomfortable-- given the
implicit difficulty in refusing any request from a peace officer who
stands cloaked in the authority of law enforcement...." Carmouche v.
State 10 S.W.3d 323, 333 (Tex.Crim.App.2000). "But the Constitution
does not guarantee freedom from discomfort. And the test is not whether
a timid person would feel free to terminate the interview. Instead, the
[courts use] a 'reasonable person' standard." State v. Velasquez, 994
S.W.2d 676, 679 (Tex.Crim.App.1999). The Constitution "presumes that an
actor is invested with a vibrant sense of his own constitutional rights
and will assert those rights when they are implicated." Carmouche. 10
S.W.3d at 333.
[Publisher's Note: If only the last statement still rang true. After
all, the Constitution has been systematically bastardized by fascist
police agencies and courts that are usually no better than mindless
shills for police officers. Worse yet, schools no longer fully teach
the Constitution and Bill of Rights. Many "conservatives" when quoted
the Bill of Rights have ludicrously responded it is part of the
Communist Manifesto. -- Nothing quite like aggressive stupidity, is
there? T.C.]
The question is not whether Daly felt uncomfortable telling Byler
he did not want to answer the officer's questions, but whether Byler,
by word or deed, conveyed the message that compliance with his request
was required.
The county court also found that an average citizen will not know
that he is free to go when the cause of a detention is completed, and
that Daly himself did not know that he was free to leave after the
warning ticket was issued. Such knowledge was not essential to a
finding that Daly voluntarily consented to answer Byler's questions.
Voluntary consent is not equivalent to a knowing waiver. "[W]e cannot
accept the position... that proof of knowledge of the right to refuse
consent is a necessary prerequisite to demonstrating a 'voluntary'
consent." Schneckloth, 412 U.S. at 232-33. "[W]hile the subject's
knowledge of a right to refuse is a factor to be taken into account,
the prosecution is not required to demonstrate such knowledge as a
prerequisite to establishing a voluntary consent." Schneckloth, 412
U.S. at 249, see also Ohio v. Robinette, 519 U.S. 33, 39-40 (1996).
(Fourth Amendment does not require officer to inform detainee that he
is free to go before consent to search may be deemed voluntary).
[Publisher's Note: The hell it doesn't. -- One more example of how
corrupt and abusive "judges" have bastardized the Constitution and Bill
of Rights. ... Then these very same hypocritical "jurists" expect
citizens to fully understand and assert these constitutional rights
when confronted by abusive police officers. Interesting, isn't it?
T.C.] The dispositive question is not whether Daly knew he had the
right to refuse to answer Byler's questions, but whether his agreement
to answer the questions was the result of duress or coercion, either
express or implied. Schneckloth, 412 U.S. at 248.
While neither Daly's feeling of discomfort nor his lack of
knowledge of his rights is dispositive, both are circumstances that may
be considered in determining whether a reasonable person in Daly's
situation would have understood that he could ignore the officer,
return to his car, and drive away. This cause does not involve a
situation in which an officer approaches a person with whom he has had
no previous contact and initiates a conversation. Instead, Daly had
been seized by Byler within the meaning of the constitution when he was
stopped for the traffic offense. Byler identified himself to Daly as
"State narcotics," was driving a vehicle bearing the words "narcotics
enforcement team," and had his trained narcotics-sniffing dog in the
patrol vehicle. While the legal justification for the seizure ended
with the issuance of the warning ticket, Daly did not know and was not
told that he was free to go about his business. [FN5] It is
understandable that Byler did not tell Daly that he was free to go,
since by his own admission the officer intended to question Daly in
order to "develop reasonable suspicion" of a narcotics violation.
Indeed, the videotape demonstrates that even as he was handing Daly the
ticket and his driver's license, Byler was asking Daly if he would
answer a few questions. A reasonable person in these circumstances
would have believed that his detention continued and that compliance
with the officer's request was required.
**********************
FN5. By finding that Daly did not know he was free to go, the
county court implicitly found that Byler's testimony on this point was
not credible. See Carmouche v. State, 10 S.W.3d 323, 328
(Tex.Crim.App.2000). In any event, the videotape presents indisputable
evidence contradicting the officer's testimony that he told Daly he
could go before questioning him. See id. at 332.
**********************
[Publisher's Note: Translation? NET "Officer" Robert Byler lied like hell under oath. T.C.]
*5 We hold that the State failed to present clear and convincing
evidence that Daly voluntarily remained at the scene to answer the
officer's questions. The county court properly concluded that Daly was
unlawfully detained after the issuance of the warning ticket. See
California v. Hodari D., 499 U.S. 621, 625-26 (1991); Johnson, 912
S.W.2d at 235 (Continued On Newsletter Text V83)
Tim Chorney, Publisher
P.O. Box 997
Buchanan Dam Tx. 78609
llanoledger@mailcity.com
Page Updated Wed Jun 13, 2001 6:16pm EDT