Can Furtive Gestures Justify a Car Search?

Houston-area law enforcement officers are quick to suspect individuals of illegal drug possession. But formal drug charges require probable cause, not mere suspicion.

This extends to any police search of your property. If the officer does not have probable cause to search your vehicle for drugs, then any evidence that may be found is inadmissible at trial.

Appeals Court Quashes Drug Search by “Slightest of Margins”

The Texas Court of Criminal Appeals recently addressed the issue of probable cause as it applies to “furtive gestures.” This is a catch-all phrase used by police to justify all manners of searches. Basically, if an officer interprets your body language during a traffic stop to suggest that you are hiding something–i.e., illegal drugs–the officer may consider that sufficient grounds to initiate a search.

But as the Court of Criminal Appeals has said in many prior cases, “furtive gestures alone are not a sufficient basis for probable cause.” A police officer may consider furtive gestures together with other “reliable information or suspicious circumstances” in establishing probable cause. But the mere fact that, for example, you glance at your glove compartment during a routine traffic stop is not enough to justify a search of your car.

In the most recent Court of Criminal Appeals case, the judges considered whether furtive gestures combined with the defendant’s last known location was sufficient to establish probable cause. In this case, an undercover Houston police officer was conducting surveillance at a local bar “with a well-documented history of narcotics sales,” according to court records. The officer observed the defendant enter the bar, stay a few minutes, and then leave.

It is critical to note the officer did not see the defendant engage in any kind of illegal drug transaction. Based simply on the fact the defendant had been in the bar, the undercover officer signaled dispatch to have another officer initiate a traffic stop. A second officer then stopped the defendant, ostensibly because he had changed lanes without properly signaling. During this stop, the second officer said he observed the defendant making “furtive gestures around the center console of his vehicle.” The officer then arrested the defendant and searched the vehicle, whereupon he found two bags of cocaine.

The Court of Criminal Appeals ruled this search was illegal. While the Court acknowledged the “suspiciousness” of the defendant’s “unusually brief appearance” at a known drug bar, there was still a “discernible gap” between this reasonable suspicion and “the proof necessary to establish probable cause.” And by “the slightest of margins,” the Court said the police failed to bridge that gap in this case.

Essentially, police need to combine furtive gestures with “some concrete indicator of drug activity” to justify a search. That did not happen here. Accordingly, the Court of Criminal Appeals held the drugs recovered during the search of the defendant’s care were inadmissible as evidence.

Have You Been Charged With Drug Possession? We Can Help

Drug cases in Texas often hinge on the legality of a search or arrest. This is why it is critical to speak with a qualified Houston drug charges lawyer as soon as possible after you are detained by police. As the Court of Criminal Appeals noted in the case above, whether or not a search is legal depends heavily on the specific facts of a given case. At the Law Offices of Tad Nelson & Associates, our skilled legal team will review your arrest and challenge any potentially illegal search. Call us today at (281) 280-0100 to schedule an initial consultation in our Houston, Galveston, or League City offices.