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One of our troopers stopped a truck for a violation and then released it. There was a 21-year-old male in the cab and several 18-year-old males in the bed.

A few minutes after releasing the truck, the trooper was notified by dispatch that he needed to stop the truck again so a deputy could give a trespass warning to one of the occupants. The trooper located the truck and stopped it shortly after it pulled out of a convenience store. He informed the occupants about what was happening, had a "hunch" that they had gone to the store to buy beer and asked them if there was alcohol in the truck. One of the guys in the bed showed him a case of beer that was hidden in a duffel bag. The trooper arrested the 21-year-old for making the alcohol available and wrote MIPs to the 18-year-olds.

One of the minors pleaded not guilty to the MIP and it went to trial- by-judge last week. I could immediately see that something was amiss when the ADA waived his opening statement, asked very few questions on direct exam, none on cross exam and then waived his closing statement.

When the JP recessed to make his decision, the ADA walked back to where the trooper was sitting and said, "We need to talk after this is over!"

The JP came back with a ruling of guilty.

I waited with the trooper to see what the ADA had to say. He said that he was having a hard time "wrapping his brain around the concept" that the 18-year-olds were in possession of the beer since it was in an unopened box.

The trooper explained to him that he felt they were very much in the care, custody and control of the beer, and he could not release a truck full of teenagers and beer. The ADA disagreed and said that he thought the trooper should have released them without taking the 21-year-old to jail or writing tickets to the minors.

I asked the ADA about the potential liability on the trooper's part if an alcohol-releated incident had occurred after he had made contact with them and let them go without taking any enforcement action. He said he didn't think the trooper would be liable.

What's your take on this situation?

[This message was edited by Trooper on 08-18-05 at .]

[This message was edited by Trooper on 08-18-05 at .]
Posts: 23 | Registered: December 06, 2004Reply With QuoteReport This Post
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This forum is probably not the place to ask for criticism of a fellow prosecutor's discretionary choices in pursuing or not pursuing particular criminal cases. A better question would be:

What kind of evidence is sufficient to show possession of alcohol.

Comparing it to drug cases, we have to show care, custody or control over the item. We don't have to show actual custody. Constructive custody is OK, so long as there is proof sufficient to establish beyond a reasonable doubt that the charged person was the one exercising the case, custody or control.

So, when an officer finds drugs under the seat of a car, we look for evidence that a particular person exercised care, custody or control

The Supreme Court, in a case from just this last term, said that there generally is enough to infer that everyone in the car probably exercised such care, custody or control. But that is a probable cause standard. We need much more for conviction.

We want:

-an admission;
-proximity to the drugs;
-evidence of use of the drug (e.g. intoxication);
-witness testimony;
-co-defendant admissions;
-paraphernalia in luggage of defendant;
-criminal history;
and anything else that might help strengthen the case.
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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As to the potential liability issue ...

Those of us who defend law enforcement officers in liability claims are familiar with defenses like "qualified immunity" and "official immunity." Those defenses are premised on the notion that governmental officials, and law enforcement officers in particular, should diligently pursue their duties without hesitation caused by the fear of liability. What all that means is that the decisions to detain or release and to prosecute or decline to file should be made based on whether the evidence gives rise to probable cause at the scene and proof beyond a reasonable doubt at trial. Civil liability shouldn't factor into that calculation.

With that said, lawsuits based on "failure to arrest" have been all-but-uniformly unsuccessful. Under federal law, there is no constitutional right to protection from a private individual's criminal conduct (absent -- in some circuits -- a special relationship that doesn't appear to exist here). Nor is there any constitutional right to the prosecution or nonprosecution of another. State law cases have tended to focus on failure to arrest a DWI defendant or a protective order respondent who then kills someone. Those, too, have been rejected based in large part on the fact that the officer's conduct is too attenunated from the actual injury. Moreover, an officer's evaluation of evidence in determining whether probable cause exists is discretionary and, unless completely incompetently performed, probably protected by qualified and official immunities. That's not to say a court absolutely will not cut against the grain and try to fashion liability, particularly in an extreme case. But the odds are pretty poor.
Posts: 1233 | Location: Amarillo, Texas, USA | Registered: March 15, 2001Reply With QuoteReport This Post
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I re-read my post, realized I'd injected a little bit of personal opinion into it and made a few changes.

We deal with minors and alcohol regularly, and I'll do what my DA wants.

However, I am interested in opinions from other folks.
Posts: 23 | Registered: December 06, 2004Reply With QuoteReport This Post
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Scenerio (oh, and I do have the video): 21 year old male pulled over for speeding at 1 a.m. Minor in back seat. 21 year old fails FST's and is arrested for DWI. Before FSTs, Beer (eight) are lined up on the back bumper of the car (a perp walk of sorts). Minor (18 or 19, I cannot recall) is given custody of the vehicle after he blows a .04 on the PBT, no FSTs. He is given a ticket for MIP and Minor consuming alcohol. The minor's parting question on the video after being given possession of his friend's mother's newer Suburban is 'what do you want me to do with the beer', and the Trooper's parting comment, 'Throw it away if you like'.

What exactly is the law of providing alcohol to a minor?
Posts: 319 | Location: Midland, TX | Registered: January 09, 2002Reply With QuoteReport This Post
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Does anyone have an opinion about the stop of a vehicle "to serve a trespass warning"?

I wonder what would be the best way to justify that stop if the issue were raised in a motion to suppress.
Posts: 71 | Location: Houston, Texas, USA | Registered: January 24, 2003Reply With QuoteReport This Post
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