Page 53 - July August 2019 TPA Journal

drugs were inside. Probable cause to believe a government’s interest in making sure that a loose
vehicle contains contraband allows a warrantless tire does not pose a safety threat strongly
search because of the car’s mobility. outweighs the intrusiveness of an officer’s
tapping the tire for a second or two.
Did that probable cause exist before Gonzales
tapped the tire? The information Gonzales had by The judgment of the district court is
that time—the wobbly tires, stripped bolts, AFFIRMED.
Richmond’s nervousness, and the new
registration on an older vehicle stopped in a U.S. v. Richmond, No. 17-40299, 5 th Circuit
trafficking corridor—certainly gave him the th
Court of Appeals, Feb. 08 , 2019.
reasonable suspicion of drug trafficking needed
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to justify extending the traffic stop to investigate
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further. But probable cause is a higher rung on
the probability ladder than reasonable suspicion.
See Navarette v. California, (explaining that the
EVIDENCE – CORROBORATION OF
evidence required for reasonable suspicion “is
INFORMANT TESTIMONY
obviously less than is necessary for probable
(concurring opinion only)
cause” (citation omitted)). Demonstrating the
greater showing required for probable cause,
I concur in the majority’s disposition, but I write
evidence rising to that level would be enough to
separately to address an issue which continues to
have supported an arrest of Richmond for drug
deserve attention.
trafficking or a grand jury indictment charging
that crime.
A defendant cannot be convicted upon the
testimony of only an accomplice unless that
But if probable cause of drug trafficking did not
testimony is “corroborated by other evidence
yet exist, the government argues that the physical
tending to connect the defendant with the offense
inspection of the tire served another interest:
committed . . . .” TEX. CODE CRIM. PROC. art.
“ensuring that vehicles on the road are operated
38.14 (accomplice-witness rule). Similarly, a
safely and responsibly.” Indeed, the wobbly tires,
defendant cannot be convicted upon the
the truck veering outside its lane, and the stripped
testimony of only a “jail house” informant unless
bolts gave a reasonable officer probable cause to
the informant’s testimony is “corroborated by
believe that the tire posed a safety risk. TEX.
other evidence tending to connect the defendant
TRANSP. CODE § 547.004(a) (making it a
with the offense committed.” It appears that, as
misdemeanor to operate a vehicle that is “unsafe
those laws are currently written, the testimony of
so as to endanger a person”). On that basis, the
an accomplice might be able to corroborate the
tapping of the tire was justified. It does not
testimony of a “jail house” informant and vice
matter that Gonzales also wanted to find out if
versa because the testimony of each would be
drugs were in the tire.
“other evidence” under the statutes. But as I
noted in Mata v. State, 542 S.W.3d 582 (Tex.
Pulling back from the discrete Fourth
Crim. App. 2018) (Hervey, J., concurring on
Amendment doctrines we have examined, finding
refusal of discretionary review), it seems illogical
no constitutional violation makes sense in terms
to allow two witnesses whose uncorroborated
of the overall Fourth Amendment balance. The

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