Extraconstitutional #5: Are Texans Extorted at the Side of the Road?

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“Circumstances short of probable cause for arrest may justify temporary detention for purposes of investigations. To justify an investigative stop, an officer must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would warrant the intrusion on the person stopped for further investigation. Thus, even in the absence of bad faith, detention based ‘on a mere hunch’ is illegal. 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 crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events in unlawful.” [emphasis added]

Schwartz v. State, No. 62416 (1982)

 

questioning-moving-violations-traffic-stops

 

Driver licensure, vehicle registration, emissions inspections, and liability certification is just so much paperwork, but the reason why Americans tolerate them at all is because they are fearful of what might happen if they were caught without any of them while they are exercising their right to travel. According to the federal Bureau of Justice Statistics in 2011, an estimated 42% of all citizen-police interactions were within the context of a traffic stop (these stopped drivers comprised 12% of the nation’s 212 million drivers, or about 25 million drivers), and half of those traffic stops resulted in a ticket; also that same year, 3% of these traffic stops involved the search of the driver, the vehicle, or both (stopped drivers reported speeding as the most common reason they were pulled over). Between red tape and moving violations, the only way any of that becomes truly scary is when you find yourself on a roadside being menaced by a uniformed man with a gun on his hip.

Almost a decade ago, I was issued a ticket for allegedly violating the Code of the City of College Station § 10-3(A) on the grounds of SPEEDING 16-24 MPH OVER POSTED LIMIT. Given that it would’ve likely been more expensive to challenge the ticket in court, I opted to avail myself of the statutory remedy found in the Texas Code of Criminal Procedure Article 45.0511, which placed me on probation while I completed a driver safety course, submitted proof of completion for that course to the College Station Municipal Court, and filed with that court a certified copy of my driving record. I never saw a judge or a magistrate and only dealt with a clerk, and upon handing over my paperwork, I only had $108 left to pay in state fees, since the $200 fine was waived in lieu of completing the driver safety course (aside from the costs of the certified DPS driving record and the driver safety course itself, of course).

Last year, Shane Radliff experienced two traffic stops in two different states. In Illinois, he received two citations for allegedly having expired vehicle registration and for driving an uninsured vehicle; en route through Michigan to the MPLC festival, he received a citation for “improper lane usage.” All three citations were resolved by a combination of dismissals by the State’s Attorney and paying off the one in Michigan within about a month.

Don’t assume that just because the traffic stops Shane and I have had means they are no big deal, for they could always end up a lot worse. Gary Hunt had been charged with driving without a license and no tags (license plates) on his motorcycle back in July of 1992; his subsequent failure to appear in court during March of 1993 (because he was covering the Waco Siege) resulted in a warrant for his arrest, especially considering that his earlier request for a continuance wasn’t granted. After posting bail, he was arrested a second time in December of 1994, and he subsequently made an oral demand for habeas corpus in court; once he had been threatened with contempt of court at least five times, Hunt asked the judge if he was suspending habeas corpus, and in less than a minute, Hunt’s case was adjudicated to be nolle prosequi (do not prosecute).

Speaking of the patriot movement back in the 1990s, George Sibley and Lynda Lyon were arrested for killing a police officer. On October 4th of 1993, Roger Motley demanded that Sibley step out of the car and to produce a driver’s license, which he did not have, and was irrelevant given that he was not driving the car as it was parked in a private parking lot; Motley ordered Sibley to place his hands on the car, and because Sibley didn’t obey quickly enough, Motley reached for his pistol, which generated an instinctive reaction by Sibley who did the same. As the two were engaged in a gunfight, Lyon outflanked Motley, killed him, and then Sibley and Lyon escaped in their car, as Sibley was now injured in his left arm; they drove right into a roadblock, and after a 4 hour standoff, they surrendered to the Bluecoats – after years of litigating that the shooting was in self-defense, Lyon was executed on May 10th of 2002 by electrocution, and Sibley was executed on August 4th of 2005 by lethal injection.

As you can tell, the seriousness of the consequences stemming from traffic stops can range from just being fined to incarceration or even death. Unfortunately, the oxymoronic “sovereign” citizens have poisoned the well regarding how one should deal with police officers during a traffic stop, given the numerous video compilations of their fails. Thankfully, if one were to practice good security culture by role-playing police interrogations ahead of time, then a lot of heartache can be avoided by such property being retained and lives saved.

The pertinent question to ask here is, what has the Texas Court of Criminal Appeals ruled here about the legal standard for police officers to forcibly halt citizens?

Between 1970 – 1986, the Court has adjudicated that reasonable suspicion is dissimilar from probable cause, the latter of which is the higher legal standard for the issuance of both arrest and search warrants. According to the Texas Constitution, Art. I §§ 9 & 29, it says, respectively, that:

 

“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” [emphasis added]

“To guard against transgressions of the high powers herein delegated, we declare that everything in this ‘Bill of Rights’ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.”

 

Here the Texas Bill of Rights specifically mentions probable cause and that warrants are to be issued to seize any person (presumably, in the form of an arrest). That is the legal standard required by this constitution, and anything less that that would be a law contrary thereto, and as such, would be void.

An overview of the CCA’s case law on traffic stops is now in order. Judge Onion wrote in the 1970 Baity v. State case that:

 

“In the case at bar the experienced officer observed in the downtown business area a series of acts in the early morning hours, each of them perhaps innocent in itself but which when taken together with the officer’s previous knowledge of the appellant warranted further investigation. In fact, it would have been poor police work for the officer to have failed to investigate appellant’s behavior further. Surely it cannot be argued that a police officer should refrain from making any investigation of suspicious circumstances until such time as he has probable cause for arrest.”

“We are of the opinion that it was reasonable under the circumstances presented for Officer Mathis to stop and briefly interrogate the appellant. What the officer saw in plain view during such process, the nail bar and coin box, was clearly admissible and not obtained as a result of any search.” [emphasis added]

 

Obviously, while not itself a traffic stop, the Baity ruling established the applicability of the plain view doctrine to citizen-police encounters absent any warrants. Judge Odom said the following in the 1972 Brown v. State case:

 

“In order for a warrantless arrest or search to be justified, the state must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances which made the procuring of the warrant impracticable. Where probable cause is lacking the challenged search will not be upheld merely because the exigencies of the situation precluded the obtaining of a warrant.

“The constitutional validity of a warrantless arrest or search can only be decided in terms of the concrete factual situation presented by each individual case. The standards applicable to determining whether the facts of the case support an officer’s probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied when reviewing the decision of a magistrate.” [emphasis added]

 

Even here, the burden of proof relies squarely on the shoulders of the government prosecutors who must demonstrate not only probable cause, but also why the issuance of the warrant (as required by the constitution) was not possible. Judge Davis provided the earliest lengthy description of an emerging reasonable suspicion doctrine in the 1978 Shaffer v. State case:

 

“A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct may be reasonable. In order to justify the intrusion, the law enforcement officer must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion of the freedom of the citizen detained for further investigation. Thus, even in the absence of bad faith, detention based ‘on a mere hunch’ is illegal. 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 crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.” [emphasis added]

 

What does any of that have anything to do with Art. I § 9, or the Brown case where constitutionality validity must be adjudicated upon the legal standard of probable cause? Unfortunately, there’s an entire rash of cases during both the 1970s and ‘80s that mimic Schaffer’s phrasing, so I’ll stay focused here on those cases that bring new insights to the development of reasonable suspicion as its own legal standard. Judge Davis wrote in the 1981 Williams v. State case that:

 

“Rather, a standard somewhat less than probable cause has emerged to allow a police officer to make an initial investigatory stop. We have held that in order to justify a stop the peace officer must be able to relate specific and articulable facts, which in light of his experience and personal knowledge taken together with rational inferences from those facts, would constitute more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress.” [emphasis added]

 

This is the acknowledgement that something has fundamentally changed, despite the fact that the Texas Constitution has been not amended to reflect this, as required by Article 17. Whenever a new legal standard has been invented with profound implications, you’d think a constitutional amendment would’ve been ratified first, but no, the Texas judiciary decided that the case law was sufficient to sidestep their own constitution. Judge Teague wrote in the 1984 Glass v. State case that:

 

“In order to justify an investigative stop, Rodriguez and Garza were required by law to meet the standard that justifies the intrusion of an investigatory stop. The standard is that before Rodriguez and Garza were lawfully entitled to stop the vehicle driven by appellant, they had to have specific, articulable facts, which in light of their experience and general knowledge, together with rational inferences from those facts, would reasonably warrant their intrusion on the appellant and the occupants of the vehicle he was driving when they stopped him. Mere suspicions do not meet this test, but neither is absolute certainty required. Under the above facts, we find that the officers were not justified in stopping the vehicle driven by appellant.

“‘Probable cause to investigate’ exists only where the circumstances reasonably indicate that the particular person either has committed or is preparing to commit a crime. However, the inarticulate hunch, suspicion, or good faith of the investigating officer is never sufficient to justify a police officer to order a subject to stop his motor vehicle or to order a subject from his automobile.” [emphasis added]

 

Fascinating how absolute certainty is above the threshold for the legal standard of reasonable suspicion in order to perform a traffic stop, isn’t it? Finally, Judge Miller stated the following in the 1986 Stone v. State case:

 

“An officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to crime. The reasonable suspicion required does not rise to the level of probable cause such as is required to justify a warrantless arrest or search. Thus, whether the officer had probable cause to stop the vehicle is irrelevant, since he did not need probable cause to do so; rather, he needed only a reasonable suspicion based upon articulable facts. [emphasis added]

 

Arguably, this is the most commonly cited case for justifying traffic stops here in Texas. The devolution away from probable cause, as enumerated in the constitution, towards “reasonable suspicion,” as invented out of whole cloth by the CCA, represents a shift away from limited government towards absolute despotism, where your freedom of movement is ultimately at the mercy of the police extortionists. Not only that, but the alleged difference between an arrest and “detainment” stretches the credulity and faith average Texans place in “their” government.

In brief, I’d like to try and summarize what I think happened here regarding the Texas judiciary’s case law. If an officer sees you doing something he thinks might be illegal, he is empowered to “detain” you while he conducts an investigation so as to gather evidence in his attempt to try and substantiate probable cause; if that probable cause is then substantiated by him, you are subject to arrest without the issuance of any warrants. This is largely based upon the infamous plain view doctrine, which is the notion that anything that occurs within the range of an individual officer’s senses can be used against you later in court (as established in Baity). The reasonable suspicion legal standard that is used to undergird an officer’s use of traffic stops is, at best, a violation of the spirit of the law, if not the letter of the law, as well.

Despite all the shades of grey that Texan judges like to play around here with our liberties, those notices to appear on the traffic tickets that officers demand that drivers sign might just well be their undoing. Believe it or not, drivers are actually under arrest when they choose to sign a traffic ticket. According to Texas Transportation Code §§ 543.001, 543.002(a)(2), 543.003, 543.005, & 543.009(b), they each say, respectively, that:

 

“Any peace officer may arrest without warrant a person found committing a violation of this subtitle.”

“A person arrested for a violation of this subtitle punishable as a misdemeanor shall be immediately taken before a magistrate if: the person demands an immediate appearance before a magistrate or refuses to make a written promise to appear in court as provided by this subchapter.”

“An officer who arrests a person for a violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person’s vehicle.”

“To secure release, the person arrested must make a written promise to appear in court by signing the written notice prepared by the arresting officer. The signature may be obtained on a duplicate form or on an electronic device capable of creating a copy of the signed notice. The arresting officer shall retain the paper or electronic original of the notice and deliver the copy of the notice to the person arrested. The officer shall then promptly release the person from custody.”

“A person who willfully violates a written promise to appear in court, given as provided by this subchapter, commits a misdemeanor regardless of the disposition of the charge on which the person was arrested.”

 

Thankfully, this actually answers why the Texas DPS trooper who issued me a ticket a few years ago regarding emissions inspections said that if I didn’t sign the ticket, he would place me in handcuffs, impound my car, and bring me before a magistrate, which is the only reason I signed the ticket at all; in other words, the moment I was issued the ticket, I was already under arrest. At that point, the only question that mattered was whether I’d be willing to essentially bail myself out by signing the notice to appear.

Constitutionally, the problem here is that my person was seized (arrested) without any warrants – simply put, TTC § 543.001 is unconstitutional on its face. If Texas jurisprudence is in any way similar to federal jurisprudence, then I’ll assume that the reasonableness of a seizure is based upon the issuance of warrants as well as whether those warrants were issued based upon the legal standard of probable cause, as enumerated in Art. I § 9. Absent that, then Art I. § 29 kicks in, which means that TTC § 543.001 is void on its face.

Briefly put, I am not contesting here the subject matter of any particular traffic stop (such as the aforementioned speeding a decade ago), but rather, I am simply pointing out both the extraconstitutionality of traffic stops themselves (which are all based on the legal standard of reasonable suspicion), and the unconstitutionality of arresting drivers without warrants under the guise of “issuing tickets” and then demanding signatures from them for these notices to appear in court.

Perhaps not surprisingly, are the aforementioned TTC sections largely consistent within themselves? According to the Acts of the 74th Legislature, Ch. 165 § 1 (aka, SB 971), the wording seems to mostly line up with the statutory code, with the differences being references to electronic records, which would explain the amendments made in 1999. Further references are given to none other that Vernon’s Annotated Civil Statutes (V.A.C.S.), which are located under Article 6701d.

According to the 1948 edition of the V.A.C.S., Art. 6701d §§ 153, 147, 148(a), 148(d), & 149, they each say, respectively, that:

 

“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act.”

“Whenever any person is arrested for any violation of this Act punishable as a misdemeanor, the arrested person shall be immediately taken before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, in any of the following cases: 1. When a person arrested demands an immediate appearance before a magistrate…5. In any other event when the person arrested refuses to give his written promise to appear in court as hereinafter provided.”

“Whenever a person is arrested for any violation of this Act punishable as a misdemeanor, and such person is not immediately taken before a magistrate as hereinbefore required, the arresting officer shall prepare in duplicate written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the offense charged, and the time and place when and where such person shall appear in court. Provided, however, that the offense of speeding shall be the only offense making mandatory the issuance of a written notice to appear in court, and only then if the arrested person gives his written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer.” [emphasis added]

“The arrested person in order to secure release as provided in this Section, must give his written promise so as to appear in court by signing in duplicate the written notice prepared by the arresting officer. The original of said notice shall be retained by said officer and the copy thereof delivered to the person arrested. Thereupon, said officer shall forthwith release the person arrested from custody.”

“Any person willfully violating his written promise to appear in court, given as provided in this Article, is guilty of a misdemeanor regardless of the disposition of the charge upon which he was originally arrested.”

 

Notice that speeding was originally the only offense upon which a notice to appear was required, but then I guess it was expanded beyond it. The fact that these warrantless arrests of drivers have been in the V.A.C.S. since at least 1948 is really a testament to how long the Texas Legislature has valued the limitations imposed upon the government by the Texas Bill of Rights.

Honestly, I just don’t see the point in consulting the 1995 Revisor’s Report on this one, as I have done before, mainly because the legalese appears to be mainly consistent for once, particularly in terms of its unconstitutionality.

Why are traffic stops inherently unjust? Although they may very well be extraconstitutional because they violate the spirit of the law while not technically breaking the letter of the law, that doesn’t therefore mean they are in performed in accordance with the Western natural law tradition. Ask yourselves, is it a crime to go the wrong way on a one-way street, or is it a crime only if you have an accident while going the wrong way on a one-way street?

The main problem with traffic stops is that they provide an opportunity for the government police to engage in annoying harassment than they otherwise would never have done. Rummaging through your “papers,” whether actual documents or something like a cellular smartphone, on a roadside would’ve been legally impossible absent a search warrant. Being victimized through the arbitrarily oppressive use of civil asset forfeiture to deprive you of your property is largely done through the foot-in-the-door of traffic stops, which is why I’ve strongly recommend everyone to role-play police interrogations so as to mitigate any loss or damage should a man find himself in that position, because the first and most important goal of all citizen-police encounters is to survive by not becoming a victim of democide!

I think the evidence is pretty obviously clear that the Texas legislative and judicial branches of government do not care about the constitutional limitations of their own powers. Whether any right to travel may have been respected by the Texas government, if not also explicitly recognized by its constitution, this much is certain – travelling on the public roads has now been fundamentally regulated to the point where it has effectively become a legal privilege that is bestowed upon Texans by the State. More revealed evidence in the future will either confirm or deny this conclusion of mine, but in the meantime, I think it is relatively safe to say that your right to travel has been infringed upon by roadside extortion in the form of both traffic stops and notices to appear in court.

 


 

Postscript: Be sure to visit the Right to Travel Bibliography, which will be updated as original documentation becomes available throughout the course of this open-source investigation.

3 thoughts on “Extraconstitutional #5: Are Texans Extorted at the Side of the Road?

  1. Pingback: Extraconstitutional #6: Who Pays to Build the Roads? - The Last Bastille Blog

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  3. Pingback: Extraconstitutional #7: Do You Have the Right to Travel? - Liberty Under Attack

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