Texas Stamp


PD-0720-22 05/17/2023

1.  “A divided appellate court ignored the law governing the review of suppression rulings by usurping the deference given to the trial court as to the credibility of witnesses and evidence.”

2.  “A divided appellate court disagreed on a material question of law necessary to the court’s decision whether the prolonged detention rendered the seizure of evidence unlawful as fruit of the poisonous tree.”


Police lawfully stopped Spivey at 11:00 p.m. for an expired registration at a gas station after observing him looking through trash cans and moving his truck around the lot.  Spivey told the officers he was looking for a lost spare key.  Spivey removed $2,000 in cash from his pocket after a Terry frisk.  Police completed a check of his driver’s license, confirmed the truck’s registration and insurance, and determined Spivey had no outstanding warrants.  Spivey answered negatively when asked if there was anything illegal in the truck.  Police told him they would have to conduct a dog sniff of the truck and did not issue a ticket or warning.  Sixteen minutes later, the dog alerted, and police found drugs. Concluding that the stop was unlawfully prolonged, the trial court suppressed testimonial and drug evidence.

The State appealed.  A majority of the court of appeals held that the record undermined the trial court’s factfinding and legal conclusions.  The prolonged detention was reasonable because (1) Spivey tried to wait out the officers plainly observing him in the lot, (2) Spivey was nervous and “spastic,” (3) possession of $2,000 is not common but is consistent with the purchase of narcotics, and (4) Spivey claimed he was not the only one who drives the truck, which is a common claim by persons possessing drugs.  

Chief Justice Gray dissented from the majority’s analysis on rehearing.  The trial court was free to disbelieve the officers, and the court should view the record in a light favorable to the ruling.

Spivey argues that the court usurped the credibility determinations made by the trial court about the suspicious circumstances’ inferences drawn by the officers.  The trial court was free to disbelieve the officers, and the court should view the record in a light favorable to the ruling.  The evidence was consistent with innocent activity, and nervous behavior does not support reasonable suspicion.  Further, the court should have deferred to the trial court’s determination that the purpose of the stop was completed before the officer announced the dog sniff.

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