Although the United States Supreme Court has whittled away at the requirement in recent years, most notably in 2016’s Utah v. Streiff, police officers must still have reasonable suspicion of criminal activity before they can detain an individual, or in the case of most DWIs in Harris County, pull over a vehicle.
Typically, the officer sees a criminal offense, and that sight constitutes reasonable suspicion. But in some other cases, the stop is easier to challenge. Under the fruit of the poisonous tree doctrine, if the stop is illegal, anything that happens subsequently, including the DWI arrest, is also illegal.
Offense Within View
Even the most careful driver probably cannot travel more than a few miles without committing at least one moving violation. Some of the more common ones, and their location in the Transportation Code, include:
- Unsafe passing to the left (TRC §545.053) or to the right (TRC §545.057) of another vehicle,
- Failure to maintain a single lane (TRC §545.060),
- Driving with an obstructed view, such as an illegally-placed sticker on the windshield (TRC §545.417), and
- Failure to stop before exiting a private driveway (TRC §545.422).
Note that it is not illegal to weave inside a single lane, and if the officer pulls you over for that infraction, the stop is invalid.
In some other cases, the defendant does not commit a moving violation but does react to the officer’s presence with a furtive gesture, such as a series of nervous glances into the rearview mirror, a sudden change in direction, or some other movement which indicates that the defendant has something to hide.
The law is a little unclear on this point, but the Court of Criminal Appeals has fairly consistently held that furtive movements, by themselves, do not constitute probable cause. However, they may constitute reasonable suspicion, which is a lower standard, in some cases.
Third Party Tips
Finally, the officer may pull over the defendant’s vehicle based on a third party tip. In these situations, the court normally evaluates the tip based on a totality of the circumstances. This analysis includes:
- Specificity: A tip about a “drunk driver in an SUV” is not very specific at all, but a tip about a “blue SUV headed south on Main Street” will probably hold up in court.
- Source: Courts almost always consider tips from other officers to be reliable, anonymous caller tips are on the other end of the spectrum, and everything else falls somewhere in the middle.
Courts will also consider the elapsed time between the tip and the stop, because most tips have very short shelf lives.
Partner with a Tenacious Attorney
Challenging the stop is often an important part of a DWI defense. For a free consultation with an experienced DWI defense lawyer in Houston, contact the Law Office of Jim Medley.