Page 55 - TPA Journal July August 2018
P. 55
anyone in the pursuit of drugs; or possess any a police officer had probable cause to search a
containers, cash, or other paraphernalia which vehicle for drugs when the driver was observed
would suggest that he intended to buy or had reaching over, removing a plastic bag from his
recently bought contraband. Oliver testified pocket, and placing it in the console area.
that officers had “seen [Marcopoulos] at the
location before,” and the parties spend much Our holding was based squarely on the
of their briefing arguing whether the trial court sighting of a plastic bag, as we reasoned that
could reasonably infer from this testimony that the officer’s training and experience indicated
Marcopoulos had “been there multiple times,” to him that “drugs are commonly packaged,
or only “one prior occasion.” But even carried, or transported in plastic bags.”
assuming Marcopoulos had been seen at Similarly, we held in Turner v. State that a
Diddy’s “multiple times,” this hardly leads to police officer had probable cause to search a
the conclusion that, as suggested by the State, vehicle for drugs when the driver
Oliver knew Marcopoulos to be a repeat conspicuously dropped a matchbox to the
narcotics customer. floor as he exited the vehicle.
While we do not discount the We concluded that the presence of the
suspiciousness of Marcopoulos’s unusually matchbox, and the driver’s attempt to hide it,
brief appearance within the bar, this behavior established probable cause as those facts
does not “warrant a man of reasonable caution “could warrant a man of reasonable caution in
in the belief that an offense has been or is believing that the box contained contraband
being committed.” There remains, then, a that appellant wanted to conceal from the
discernible gap between the reasonable officers.”
suspicion aroused by Marcopoulos’s brief
presence at Diddy’s and the proof necessary to We have conversely held that furtive
establish probable cause. We also hold, for the gestures, absent some concrete evidence of
following reasons and by the slightest of drug activity and informed only by an officer’s
margins, that this gap was not bridged by “vague suspicion,” do not give rise to probable
Marcopoulos’s furtive gestures. cause. In Brown v. State, a uniformed police
officer in an unmarked car followed a vehicle
We have repeatedly held that furtive thought to be occupied by armed-robbery
gestures must be coupled with “reliable suspects.43 The officer “observed the two men
information or other suspicious circumstances in the back seat . . . turn and look toward him,”
relating the suspect to the evidence of crime” then saw “their shoulders move and concluded
to establish probable cause. Determining the that they were concealing firearms in the back
nature of “reliable information” or “other seat.” The officer searched the vehicle and
suspicious circumstances” is a fact-driven discovered marijuana, but this Court found the
inquiry that does not lend itself to bright-line search unreasonable: To find the appellants’
rules. We look to prior, analogous cases for conduct in the instant case sufficient to
guidance. We have held twice before that constitute probable cause . . . would be to
furtive gestures, coupled with some concrete assume: (1) that they recognized [the officer]’s
indicator of drug activity, may establish unmarked car as a police car; (2) that these
probable cause. In Wiede v. State, we held that gestures were in response to that awareness;
July/August 2018 www.texaspoliceassociation.com • 866-997-8282 51
