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August 23, 2005, 08:05
Martin Peterson
Beck, your premise is wrong. Dismissal of the charge is not the only available teaching aid for the police. Indeed, that is why the exclusionary rule finally developed a "good faith" exception.
August 23, 2005, 08:56
P.D. Ray
Seems to me that this circumstance turns on the fact determination regarding the crack in the brake light.

Perhaps you should prep the officer for a loss, explaining why you think that the observable light on the video tape doesn't meet the qualifications as you understand them, then allow the officer to testify in the suppression hearing.

Let the officer read the caselaw, then go forward on the hearing.

Show the judge the case, then explain that you're not sure that the case applies based on the video and the observations of the officer.

If the judge sees the facts the way you think they may be seen, then you'll lose. I don't see why we should avoid losing if that is the proper outcome.

I don't think you're making the judge the bad guy if you explain to the officer what you expect, then verify your opinion by letting the judge get it right. I know there are twenty different ways to resolve the circumstances, but perhaps the education of the officer will stick more if it comes from the judge.
August 23, 2005, 09:32
Originally posted by John Bradley:
You are rather quick to blame the officer, and I suppose that is the American way. And you say nothing about the criminal actions of the driver. When does that weigh into your moral self-righteousness?

This is a point that gets raised far too seldom when people start pointing to the prosecutors duty to see that justice is done: where is justice defined as letting a guilty criminal go free?

Whether evidence is suppressible or not has NO BEARING AT ALL on whether a defendant actually committed the crime. Infact, while the exclusionary rule is designed to discourage police from violating the rights of the innocent, in practice it is only applied in cases where the police have recovered probative evidence of guilt.

Don't get me wrong, I understand the reason for the rule, and why we have it. But don't try and tell me that justice is served when a guilty person goes free because the evidence against him is suppressed. Even if you assume his rights were violated in some way, that does not excuse his crime. The exclusionary rule may protect the innocent, but it is a windfall for the guilty.
August 23, 2005, 23:26
<Dennis Foster>
When Mr. Bradley says that I am blaming the officer for this he is entirely correct. I blame the officer for either ignoring or not knowing about nearly twenty-years of CCA case law that says that you cannot make this kind of a traffic stop based on a cracked taillight.

Twenty-years of case law, ladies and gents.

And who says that the defendant is guilty? In our country, a person is not "guilty" until a final judgment has been rendered saying that they are. As we all know, you cannot take someone's life, liberty, or property without due process of law.

Justice IS served when a "guilty" person goes free because the evidence was suppressed because under our system of justice, that's how it is supposed to be - like it or not.

While I might be new to the practice/study of law, I was a law enforcement officer for many years before changing my vocation. So I know how it is in the trenches and having to make decisions quickly and on your own. But that is where training comes in along with continuing education and proper supervision.

Based on the PC the officer used to justify his detention of the alleged offender, there is no way that charges should have been filed. When I was a supervisor I looked over every guy's paperwork before passing it upstairs for the filing of formal charges. The cop's supervisors either did not know the law or chose to ignore it, or hoped that maybe nobody would notice or look at things too closely.

Everybody bitches and moans when some technicality results in a "guilty" person going free. But last time I checked, neither the Fourth Amendment, Fifth Amendment, or the Sixth Amendment are "technicalities".

And I am truely surprised to see Mr. Bradley wanting to cite foreign jurisdictions as examples for how our laws should be. Is that not what the Supreme Court did when it stopped executions for the mentally retarded, or for people under 18, or struck down Texas's ban on homosexual conduct (foreign being every other state/jurisdiction but our's)? Keep in mind that in the UK, there is no constitutional protections for free speech and the like. And Canada for a long time only had what they called an "implied bill of rights". See Canada (A.G.) v. City of Montreal, [1978] 2 S.C.R. 770. What they call the Canadian Bill of Rights is simply a federal statute enacted in 1960 that ONLY applies to federal jurisdiction. It was only in 1982 when they finally got around to making a Canadian Charter of Rights and Freedoms that is similar (but not equal to) our own constitution.

I am not trying to flame John or anybody else here with this post. But either the guy is guilty under our system and rules of law or he isn't.
August 24, 2005, 05:27
Martin Peterson
There is no doubt our society chooses to emphasize and protect individual rights and freedoms more, much more, than some (maybe arguably all) others. But the criminal law is by definition a chosen curb on the individual. So, we (all of us Americans) necessarily have a tough time defining "justice" because of the competing interests. Reminds me of the current debate about the true meaning of "judicial activism".

But, I guess I will continue to hold the thought that a proper functioning adversarial system and our judges have greater responsibility in such matters as the exclusionary rule than the State's attorney. If that means I am incapable of seeking to do justice as someone else would like to interpret that term, so be it. My position does not mean I waste resources on futile things or like fine distinctions. When important issues boil down to the size of a crack or amount of white light we surely must be talking about a technicality- on both sides of the issue and whether we are in Texas, Canada, or elsewhere. Thor, let us know your ultimate outcome. Maybe we will all learn something.
August 24, 2005, 08:04
Dennis, why so much anger? This is a discussion of values, not a challenge to manhood. Perhaps being so black and white served you well as an officer, where the rules of behavior need clear lines drawn, but the world of law is not so rigid.

The exclusionary rule has evolved considerably since its inception. Many exceptions have arisen based on arguments made in cases that appeared otherwise to be open and shut. The rule is designed to encourage the officer to respect a defendant's right to privacy but it is not so rigid as you suggest. The Fourth Amendment's own langauge is quite flexible, telling us all to act reasonably. Such reason is based on an evaluation of numerous circumstances.

I like your fire, just bring the flame down a notch. Give me a call. I would enjoy meeting you and hearing about what its like to be in law school after being an officer.
August 24, 2005, 08:38
Shane Phelps
Interesting topic. In our county, if we know that a stop is no good and have a case directly on point telling us that the stop is no good, we reject the case. It makes no sense to waste our limited resources on a case that stands a very good chance of not going anywhere or being reversed on appeal. We also take every opportunity to contact the officer and educate him or her on why the case was rejected. As my boss says, "prosecutors are the glue that holds society together." If we fall too far into the "prosecutor as advocate" paradigm, bad mistakes happen more often and if there is one priority every prosecutor should have, it is to prevent such mistakes. Our client is justice and we must play by the rules. In my opinion, if we know of caselaw that torpedos our case, we must act on it by either rejecting the charge or disclosing the case. I have to say, I don't see any middle ground given that the issue in question is so cut and dry. If there is a good faith argument to be made to distinguish my circumstance from the controlling case or to change the law, I will be the first prosecutor to make the argument. But, if it is a certainty that the law has been violated in the course of an arrest or stop, how is it consistent with the duty to see justice done to proceed? Just my opinion, I could be wrong.
August 24, 2005, 09:27
Shane, given the limited circumstances set up in the first post, I don't disagree. And, we, too, would use the rejection as an educational experience.

But, wouldn't you think about it a little longer and harder if the officer had found a body in the trunk?
August 24, 2005, 10:53
Shane Phelps
August 24, 2005, 13:10
I don't hold myself out to be a great legal researcher but Vicknair v. State, 670 S.W.2d 286, was overturned by the Court of Criminal Appeals and is BAD LAW! This case is out of Houston but since it went up, it was overturned.

Two arguments: First, for our young law student friend... the law would appear to be on our side now. What do you think of the accused defendant now? Is he guilty and should be held accountable or are you gonna continue to go off on the incompetent officer who is (if my legal research skills are correct) a good officer?

Second, I went back and read the postings. This Houston case is persuasive but doesn't apply necessarily in Waco. Anybody can find a persuasive case "on point" but doesn't mean any legal issue is not subject to argument before a court.

Gee, hope I'm right on that case that I looked up! Cool
August 24, 2005, 13:15
Clay A.
Thanks Thor, and all the posters, you just gave me a new Hypo for my next version of Prosecutorial Ethical Dilemmas. Be proud, don't forget your answers I will be soliciting them at a presentation near you!
August 24, 2005, 13:19
Tim Cole
Surely the defense attorney in this case has heard about this posting and made the issue moot by this point. If not, he or she really is incompetent.
August 24, 2005, 13:44
Thor Schmidt
I'm not going to hold myself out as the world's greatest researcher either, but I'm not seeing where Vicknair was overturned. According to Westlaw, the Houston court's decision was affirmed by the CCA, although J. McCormick wrote a very convincing dissent which I had planned to rely on heavily had this situation come to a head. I keycited both decisions and I didn't see where either had been subsequently overturned.

FYI--It was determined in our office that we were required to disclose the case to the court, but not until we actually appeared for pre-trial to argue the suppression motion. At that point, when we were before the court and on the record, we would certainly have an obligation to disclose anything that we felt was controlling authority that the defense had overlooked.

The morning of pre-trial, however, the defense attorney contacted me for our absolute rock-bottom offer. We offered two years (the minimum) and the defendant elected to take it.

The way we looked at it, our obligation under the Model Rules (3.3) differs from that of our obligation under Brady in that it is to the court, not the defendant. Since we never actually got before the court on the suppression motion, or anything else for that matter, we were never formally confronted with this obligation.
August 24, 2005, 14:28
Glad to hear it all worked out Thor. That was a "thorny" situation Wink Seriously, I found that case on Lexis with a BIG stop sign next to it and I also read it. Looked like BAD law to me. Hopefully, all prosecutors will always be faced with more than white light coming out of the back of brake lights!
August 24, 2005, 14:49
P.D. Ray
Why didn't the law student do the Shepardizing?


Unrestricted Shepard's Summary
Subsequent appellate history contains negative analysis.
Citing References:
Citing Decisions: Citing decisions with no analysis assigned (7)

Other Sources: Law Reviews (1), Statutes (1), American Law Rpts/Lawyers' Edition Annos (1)

LexisNexis Headnotes: HN1 (2), HN2 (2), HN3 (1)

Show full text of headnotes

PRIOR HISTORY ( 0 citing references ) Hide Prior History

Vicknair v. State, 670 S.W.2d 286, 1983 Tex. App. LEXIS 5769 (Tex. App. Houston 1st Dist. 1983)

SUBSEQUENT APPELLATE HISTORY ( 5 citing references ) Hide Subsequent Appellate History

Select for Delivery
1. Petition for discretionary review granted, (Apr. 18, 1984)

2. Reversed by:
Vicknair v. State, 751 S.W.2d 180, 1986 Tex. Crim. App. LEXIS 820 (Tex. Crim. App. 1986)

3. Motion for rehearing on petition for discretionary review granted by, (Apr. 8, 1987)

4. Different results reached on rehearing at:
Vicknair v. State, 751 S.W.2d 180, 1988 Tex. Crim. App. LEXIS 65 (Tex. Crim. App. 1988)

5. Motion for rehearing on petition for discretionary review denied by, (May. 18, 1988)


The Act commands that no person shall drive a motor vehicle on any highway unless its equipment is "in good working order and adjustment as required" in the Act. [**10] (Sec. 141(d)). Is a cracked taillight lens emitting white light "in good working order and adjustment" as required in the Act? Not by the criteria promulgated by the Department pursuant to authority conferred in Article XV of the Act. According to those criteria, a cracked taillight lens emitting white light "discloses the necessity for adjustment[] . . . or repair[]." (Rules and Regulations, etc.; Sec. 140(b)).

The only remaining issue is whether the criteria of good working order and adjustment established by the Department under authority of Article XV of the Act constitute the criteria of what good working order and adjustment are "as required in th[e] Act" (Sec. 141(d)). Put another way, can equipment unable to pass inspection nevertheless be in "good working order and adjustment" as required in the Act? HN10In Article XV of Art. 6701d, supra, the legislature has authorized the Public Safety Commission and the Department of Public Safety to promulgate standards of safety and performance for all equipment subject to inspection on motor vehicles. We hold that the criteria promulgated by the Department under authority of the Act constitute the criteria of good working order [**11] and adjustment as required in the Act.

HN11A person who drives on any highway a motor vehicle with equipment that is not in "good working order and adjustment" as required in the Act violates a prohibition of the Act. Sec. 141(d). Any person operating a vehicle on the highways of this State in violation of the provisions of the Act is guilty of a misdemeanor. HN12Sec. 140(g). Section 153 of Art. 6701d provides: "Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act."

Officer Illingworth had probable cause to stop appellant's vehicle and statutory authority to stop it without a warrant.

BUT THEN IN the EN BANC hearing in '88:

We find that HN7in making the determination whether the tail light lens on appellant's motor vehicle constituted a violation of the Motor Vehicle Code of this State we must not evaluate that tail light lens under the criteria for inspection found in the County Clerks' offices or in licensed vehicle inspection stations throughout the State, because such would be an unreasonable requirement on the motorists of this State. Instead, we will make the determination whether a violation of Art. 6701d, � 111, supra, occurred when the arresting officer stopped appellant's motor vehicle.

We find that the court of appeals application of � 111 to the present case was an appropriate one. n4 There is no evidence in the record before us [**11] that the tail light on appellant's vehicle failed to emit a red light as required by a plain reading of � 111. Nor is it logical to conclude that a sliver of white light, which did not "wash out" the red hue of the tail light, presented a safety hazard to anyone or anyone's property, including appellant's vehicle and the persons then located therein when the police officer stopped the vehicle.

[This message was edited by Philip D Ray on 08-24-05 at .]
August 24, 2005, 15:05
Martin Peterson
Vicknair is a rather amazing situation when you think about. On original submission a majority of the CCA agreed that the officer was justified in making the stop. A year and a half later, on Appellant's motion for rehearing, it changed its mind. If it was that hard for the court to determine the validity of the stop, then Officer Illingworth could hardly be faulted for his misinterpretation of the traffic law in question. Whether the Corsicana case presented a minutia equipment flaw rather than a safety hazard might have been an interesting question to argue. Whether subsequent caselaw allows any more leeway for determination of the validity of a stop based on "wash out" might also prove interesting. But, certainly, I agree that Vicknair should be mentioned in officers' training and must be taken into account before a stop is initiated. Whether it must be disclosed as a potential "authority" applicable to the facts of the case or in order to assure justice seems extremely complex. Fortunately, in those situations, the law allows for plea bargains, so we really do not have to get too analytical.
August 24, 2005, 15:48
I was working as a briefing attorney for the Court of Criminal Appeals when Vicknair was decided and then redecided. It provided a very interesting inside look at how a seemingly minute case could become a rather large issue within an institution.

Martin, it was rather amazing to see that 9 judges could decide a case one way and then a year later go another way. Actually, during that time period, that was not so unusual for the CCA. There was a very interesting group of judges on the court at that time with very active agendas.

Anyway, there is a lot more to the story than the black and white (or red and white, as the case may be) in the final Vicknair.
August 25, 2005, 15:05
Martin Peterson
Ah, but you are still bound to secrecy. Too bad. My guess is that there are cases that provide intrigue of one sort or another almost all the time.
August 26, 2005, 02:46
<Dennis Foster>
Many thanks to Thor and the rest of you for providing a very interesting, lively, and insightful discussion!!!!

This thread was a lot more interesting than any of the other threads that I have seen here over the past few months since the discussions about probation reform.

Again, many thanks to all that participated! Smile Smile
February 05, 2007, 15:22
East Texas Attorney
I'm in agreement that Vicknair still seems to be controlling law. Is there any thoughts on legislative changes? Also, how does Vicknair coexist with 547.303? I'm losing someone on there 8th dwi because the officer said the light emitted some red along with the white.