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Texas Court of Criminal Appeals: Furtive Gestures, Brief Visit Not Probable Cause

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that “furtive gestures” alone did not give police probable cause to search a vehicle under the automobile exception to the Fourth Amendment’s warrant requirement.

When a marked police car pulled behind Andreas Marcopoulos’ truck, police said he made “furtive gestures” toward the center console. Police watched Marcopoulos visit a bar known for its drug scene for about three to five minutes, then pulled him over after he reportedly committed a traffic violation. He was immediately arrested. The officers searched his truck and found three small baggies of cocaine.

Marcopoulos pleaded guilty after the trial court denied his motion to suppress, but he reserved his right to appeal the issue. On appeal, Marcopoulos again argued that the search was unreasonable and had exceeded the scope of his arrest. A divided First Court of Appeals, however, rejected his claims and upheld the search under the automobile exception. The court ruled that Marcopoulos going to a bar “known for selling narcotics,” his short visit there, and his furtive gestures gave the police probable cause to search his truck under the exception. The CCA agreed to hear Marcopoulos’ case.

The narrow question before the Court was whether probable cause existed to search Marcopoulos’ truck under the automobile exception to the warrant requirement of the Fourth Amendment based upon the specific facts of the case. The Court held that it did not.

The CCA reiterated the general rule that under the Fourth Amendment a warrantless search is per se unreasonable, unless it falls within an exception to that requirement. The automobile exception allows a warrantless search of a vehicle if the vehicle is readily mobile and there is probable cause to believe it contains contraband. The U.S. Supreme Court stated in Brinegar v. United States, 338 U.S. 160 (1949), that probable cause exists where the circumstances would make “a man of reasonable caution” believe an offense has been or is being committed. The Brinegar Court instructed that a reviewing court must evaluate “the totality of the circumstances” known to the officer in determining whether there was probable cause.

The CCA explained that “[w]e have repeatedly held that furtive gestures alone are not a sufficient basis for probable cause.” Furtive gestures are merely indicia of mens rea (guilty mind), and must be coupled with reliable information or suspicious activity relating to evidence of a crime in order to rise to probable cause, according to the Court. Thus, his alleged furtive gestures did not necessarily give rise to probable cause.

The Court then addressed Marcopoulos’ brief appearance at a bar known for drug activity. It cited to the U.S. Supreme Court decision in Sibron v. New York, 392 U.S. 40 (1968), in rejecting the State’s argument that this fact provided officers with probable cause. In Sibron, police surveilled the defendant for eight hours, during which time he had several conversations with known drug addicts. Based upon those observations, a police officer approached defendant, reached into his pocket, and confiscated heroin. The U.S. Supreme Court ruled that the defendant’s behavior did not give rise to probable cause because police did not hear the conversations, observe any drug transactions, or otherwise detect the presence of drugs.

The Court explained that it interpreted Sibron to severely limit the probative value of Marcopoulos’ visit to the bar. Like the defendant’s conversations with known drug addicts in Sibron, Marcopoulos’ brief stop at the bar, without more, does not amount to probable cause. His brief presence was suspicious, but it did not “warrant a man of reasonable caution” to believe that a crime was committed.

According to the Court, there was a “discernible gap between the reasonable suspicion aroused by” his brief visit to the bar and “the proof necessary to establish probable cause.” That gap was “not bridged” by his furtive gestures. The Court noted that it has repeatedly held that furtive gestures without “some concrete evidence of drug activity” do not give rise to probable cause.

Further, Marcopoulos’ furtive gestures of reaching into the console were not in response to police “action (e.g., wailing sirens or flashing lights), but rather police presence,” the Court stated. Though provoking someone’s reasonable “suspicion,” Marcopoulos’ actions did not amount to probable cause to justify a “full-blown search,” the Court concluded.

“A search cannot be justified by what it uncovers,” the Court said. “We conclude that the automobile exception cannot be stretched so far as to justify an all-out warrantless search on these facts.” Accordingly, the Court reversed the First Court of Appeals’ judgment and remanded the case. See: Marcopoulos v. State. 2017 Tex. Crim App. LEXIS 1310 (2017). 

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