Texas Stamp

ZIMMERMAN, MARK DAVID

PD-1226-19 06/26/2019

“The Fifth District Court of Appeals erred by affirming the trial court’s decision in denying Appellant’s motion to suppress.”

Zimmerman was stopped by police for having a defective license plate light.  After Zimmerman turned over a Colorado license and insurance, the officer told him he was not going to issue a ticket and asked him what he was doing in Texas.  Appellant said he was originally from Texas, was currently staying in Texas, and was heading to Colorado and Las Vegas for vacation.  The officer asked if he had ever been in trouble with the law, and Zimmerman admitted he had been “quite some time ago,” with the last time being eight to nine years.    Zimmerman said it was not for anything “too serious” in response to the officer’s inquiry.   The officer then returned to his patrol car to check Zimmerman’s identification and criminal history and to determine if he had outstanding warrants.   Zimmerman’s criminal history included multiple priors for possession and manufacture with possession.  The officer concluded that Zimmerman was transporting drugs because Zimmerman’s travel story did not add up, his luggage was too small for a long-distance trip, and he ignored questions about his criminal history. 

The officer ordered Zimmerman out of the SUV, and on the roadside, the officer continued to talk with Zimmerman, asking if he had weapons or anything illegal in the SUV and inquiring more about his residency history and the small luggage.  Zimmerman said he had a paperweight in his pocket, but when he removed it, it turned out to be brass knuckles.  The officer asked to search the SUV, and Zimmerman refused to consent.  The officer told Zimmerman that his K-9 would alert to the presence of drugs.   Zimmerman refused to consent again, and the officer told him he would “run” the dog and didn’t need consent.  The dog alerted, and several drugs were discovered.   Zimmerman moved to suppress, claiming that stop had been illegally extended and the K-9 search was therefore illegal.   The trial court denied the motion.

The court of appeals affirmed.  Concluding that the stop—for purposes of the violation—had been unlawfully prolonged, the court addressed whether the officer had reasonable suspicion of criminal activity.   The officer had reasonable suspicion, the court held, because Zimmerman had been “traveling late at night, his demeanor during the stop as shown by the videotape, his deception regarding his criminal history and the revelation his criminal history included multiple drug-related offenses, the fact he had ‘a very small bag,’” he lied about having brass knuckles, and the officer saw bagged marijuana in the car just before the K-9 search.  

 Zimmerman, pro se, argues that the lower court’s decision sets bad precedent: 

The dangerous precedent is where an officer can stop a motorist under the pretense of an unproven traffic violation, never write a ticket, demand that a motorist exit their vehicle, continue detaining a motorist to conduct a non-consensual K-9 sniff test despite not seeing or smelling any narcotics, induce the K-9 to alert by performing prohibited actions, gestures and speaking commands and then precede (sic) to search the vehicle. 

Zimmerman also points out that the officer testified that Zimmerman was not nervous or under the influence of drugs or alcohol and that he had been cooperative.

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