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| I think your distinction comes in the basic justification under Florida v. Royer and the Texas case law as it has evolved. Though the speeding stop is justified both as to 4th amendment intrusion into the defendant's expectation of privacy and removal of the defendant from the vehicle for officer safety during investigation, the context and length of the detention is likewise limited by objectively reasonable time that an officer would require to to complete the speeding citation.
With extension or reasonable suspicion for DWI, such as your odor of alcohol example, it seems that the courts' constitutional justification does somewhat of a balancing act between what would have been required for the length of the stop (just for speeding) and the extension of that time for the investigation of DWI. If the court finds that the officer's justification for the extension is unreasonable (failure to clearly state the articulable facts on which the DWI r/s was based), the extension of time would be found unreasonable b/c the time allowed for investigation of the speeding stop would necessarily have expired (unless the officer can testify to circumstances that reasonable extended the time for the speeding investigation).
A good discussion with references to quite a few cases on the subject is:
Additionally, the court of criminal appeals has stated: Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983). Here the justified �stop� was in regard to Rodriguez's speeding violation. Absent additional evidence, there was no justification for any �stop� that exceeded what was necessary to ticket Rodriguez for speeding...There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983)...In the present case, the administrative record contains no evidence indicating that Officer Gautier had probable cause to administer field sobriety tests to Rodriguez. In case after case, Texas courts have required some causal link (usually in the form of testimony from the arresting officer) between the probable cause for the stop of the vehicle and the subsequent probable cause to arrest the motorist without a warrant for the offense of driving while intoxicated. See, e.g., Hooker v. State, 932 S.W.2d 712, 714 (Tex.App.-Beaumont 1996, no pet.) (driver appeared sluggish, disoriented, and slow to respond to questions and to find driver's license); *365 Trent v. State, 925 S.W.2d 130, 134 (Tex.App.-Waco 1996, no pet.) (appeared drunk, smelled of alcohol, and was belligerent); Raffaelli v. State, 881 S.W.2d 714, 715 (Tex.App.-Texarkana 1994, pet. ref'd) (after speeding stop, officer noticed slurred speech and staggering); Espericueta v. State, 838 S.W.2d 880, 881 (Tex.App.-Corpus Christi 1992, no pet.) (officer smelled alcohol on breath); Townsend, 813 S.W.2d at 185 (officer noticed that motorist's eyes were glassy and there was a strong odor of alcohol on his breath); Gillentine v. State, 781 S.W.2d 382, 383 (Tex.App.-Houston [1st Dist.] 1989, no pet.) (after speeding stop, officer noticed strong odor of alcohol and inability to maintain balance).
Texas Dept. of Public Safety v. Rodriguez 953 S.W.2d 362, 364 -365 (Tex.App.-Austin,1997)
GM |
