Page 28 - Texas Police Journal November- December 2013

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

November-December, 2013

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods and
provide guidance for officers on an operational level. Much of the information pertaining to these cases is
lifted verbatim from the court opinion or syllabus with independent analysis inserted as appropriate. Due
to clarity for training purposes, the distinction between quotes from the opinions and inserted analysis is
not always identified and legal citations within the opinion are often omitted. Emphasis is placed upon
reported decisions from the Fifth Circuit Court of Appeals and the Texas Court of Criminal Appeals.

described the make, possible model, and color of the vehi-
INFORMANTS. RELIABILITY
cle.
VEHICLE SEARCH FOR DRUGS He also recounted the first three characters of the
license plate. Bracy did not inform Officer Gerber that he
The suspects Powell and Akin were convicted in had cooked the crack cocaine which Little Book had
Federal Court of Conspiracy with intent to distribute drugs
just purchased. Officer Gerber took this information to the
and possession with intent to distribute drugs. On appeal,
Midland Police. He called Detective Marker, conveying
Powell claimed his co-defendants inculpatory statements
the tip he had just received and stating that, in his belief,
should have been excluded and Akin claimed the evi-
Bracy was sufficiently reliable for the tip to provide prob-
dence was insufficient. There was also a challenge to the able cause for a vehicle stop.
sentencing which is not addressed in this Digest summary.
Officers set up surveillance and had a marked K-9
Defendants lived together at college and had a child patrol unit stop the vehicle once a traffic violation was
together. Officer Dwayne Gerber, of the Lubbock Police observed.
Department, received a call from Cory Bracy (Bracy), a Approximately ten minutes into the traffic stop, Officer
confidential informant who had worked with Officer Welch ran Powells and Akins names through law
Gerber since 2010.1 Gerber testified that he had received enforcement databases to check for warrants. At this point,
credible information from Bracy in the past, but he learned Officer Welch testified that he asked Powell for consent to
that Bracy had lied to him about whether he was cooking search the vehicle, which was given. Powell disputes this
crack cocaine and dealing drugs while serving as an infor- fact. Midland Police policy requires occupants be
mant. Bracy told Officer Gerber that a man called Little removed from a car before it is searched. There was no
Book and a woman who had just left his home had pur- safe location at the scene for Akin and her infant daughter
chased a quantity of crack cocaine and were en route to to wait during the search. It was a cold winter s evening
Midland, where they intended to sell the narcotics. Bracy on the side of a busy Texas state highway.

26 www.texaspoliceassociation.com • 866-997-8282 Texas Police Journal