CAUSE NO.

14-0707884
STATE OF TEXAS
V.
MONIQUE MURDOCK

IN THE DISTRICT COURT

9TH JUDICIAL DISTRICT

MONTGOMERY COUNTY, TEXAS

MOTION TO SUPPRESS EVIDENCE ILLEGALLY OBTAINED VIA

PRETEXTUAL TRAFFIC STOP
To: The Honorable Presiding JUDGE.
COMES NOW, the Accused, Monique Murdock, by and through counsel of record,
Nancy A. Knox, and files this Motion to Suppress Evidence Illegally Obtained via
Pretextual Traffic Stop, and requests that said evidence be deemed inadmissible against
her at trial, pursuant to the Fourth and Fifth Amendment of the United States
Constitution, Article 19, of the Texas Constitution, and Art. 1.04, and 38.23 of theTexas
Code of Criminal Procedure. In support of this Motion, Ms. Murdock would offer the
following:
1. Ms. Murdock was arrested on July 17, 2014, and charged with Possession of a
Controlled Substance vis a vis a "glass pipe with crystal like residue". The glass
pipe was found as the result of a non-custodial search of the vehicle within which
she had been a passenger. The allocuted ratioanle for the initial traffic stop was
"plastic
and tape' on a temporary license plate.
2. "Obscured License Plate" is a Class C Misdemeanor, and although obviously
important enough for the legislature to address, hardly merits a "full-car search" to
find evidence thereof. In fact, the license plate is on the back of the car and
posseses no "inter-car" component.
3. Defense offers the argument that the obscured plate, if indeed truly "obscured"
would have been easily identified, addressed, and citation properly written, all
without
the need for the searching of the entirety of the vehicle and this
simply stated rationale
offered by law enforcement is patronizing and a pretextual
falsehood, put forth merely
as a talismanic justification on a police report. The
true reason for the stop was the time of night, arrea of town, and general appearance of
the vehicle's occupants.
4. As gleaned from from the States discovery, it appears likely the State plans to
utilize evidence recovered as a result of the pretextual traffic stop, to wit: a

residue

covered glass pipe, in its case in chief.

5. For the reasons set out in the attached memorandum of law, the items found as
a result of the pretextual search are not admissible against Ms. Murdock during
the trial
phase of this case. Ms. Murdock respectfully requests that this
Motion be granted a hearing and that the State be asked to present its case in favor of
illegal searches and seizures.
WHEREFORE, the Ms. Murdock requests that this Honorable Court grant hearing on the
above Motion.
Respectfully submitted:
___________________________
NANCY KNOX-BIERMAN
107 Cartwright #105 Conore, TX 77301
(832) 670-9102 SB#24059177

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was emailed to
the Assistant District Attorney, representing the State in this matter, on the 29th day of
December 2014.
__________________________
NANCY A. KNOX-BIERMAN

CAUSE NO. 14-0707884

STATE OF TEXAS
V.

IN THE DISTRICT COURT

9TH JUDICIAL DISTRICT

MONIQUE MURDOCK

MONTGOMERY COUNTY, TEXAS

ORDER GRANTING MOTION TO SUPPRESS EVIDENCE ILLEGALLY

OBTAINED VIA PRETEXTUAL TRAFFIC STOP
On this day came on to be submitted and considered the annexed motion seeking an
Order Granting Motion to Suppress Evidence Illegally Obtained via Pretextual Traffic
Stop. This Court, being of the opinion and FINDING same to be just and proper does
therefore and hereby ORDER that the evidence seized as a result of the car search
conducted in conjunction with this case, to wit: a glass pipe with crystal like residue, is
hereby INADMISSIBLE, and Order the State to refrain from mention, reference or
attempt to introduce in any manner, the aforementioned glass pipe in the case at bar.
Signed this ____ day of _____________2015.
By: ________________________________
JUDGE PRESIDING

CAUSE NO. 14-0707884

STATE OF TEXAS
V.

IN THE DISTRICT COURT

9TH JUDICIAL DISTRICT

MONIQUE MURDOCK

MONTGOMERY COUNTY, TEXAS

MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE

ILLEGALLY OBTAINED VIA PRETEXTUAL TRAFFIC STOP
COMES NOW, The Accused, MONIQUE MURDOCK, by and through undersigned
counsel, and respectfully files the following supplemental memorandum of law in support
of this Motion to Suppress Evidence Illegally Obtained via Pretextual Search.
FACTS
Ms. Murdock was arrested on July 17, 2014, and charged with Possession of a
Controlled Substance vis a vis a "glass pipe with crystal like residue". The glass pipe
was found as the result of a non-custodial search of the vehicle within which she had
been a passenger. The allocuted ratioanle for the initial traffic stop was "plastic and tape'
on a license plate. The glass pipe was found under the center consol of the car, beheath a
cup holder, which had to be removed to visualize the pipe. The pipe was not in "plain
view" and no exigent circumstances existed at the time of this traffic stop that precluded
the officer's ability to obtain a search warrant. There is no audio portion of the COBAN
recording until after the search has been conducted, and neither passenger nor driver
signed written consent for the search.
ARGUMENTS
I.
THE FOURTH AMENDMENT AND ITS PARALLEL STATE
PROVISIONS
PROTECT AGAINST UNREASONABLE SERACHES AND
SEIZURES
Citizens in this county possess a right to be free from unreasonable search and
seizures under the U.S. Const., Amends. IV and XIV, and Tex. Const., Art. 1, Sect. 9. The
Fourth Amendment and its parallel provision protect against searches and seizures that
are unreasonable Scott v United States, 436 US 128, 137, 56 L Ed 2d 168, 177, 98 S Ct
1717, 1723 (1978); The Fourth Amendment provides that, "The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures...", this being an articulated protection, devised and drafted to protect against
intrusive and lawless behavior by those in authority, and in direct conflict with the
Orwellian assertion that police needed to engage in illegality . . . to preserve
legality.National Commission'e Conference on Uniform State Laws/Handbook of the
National Conference (1952). Excesive authoritarian police tactics, specifically in direct
violation of 4th Amendment protection were addressed in the Warren Courts criminal
procedure revolution, with Mapp v. Ohio, 367 U.S. 643 (1961), the decision extending
the Fourth Amendments exclusionary rule to the states. The Amendment itself is listed
in a "Bill of Rights" (empasis added) that was incorpoarted on a case by case basis to
the States and is still the subject matter of every Con Law class, taken by every 1L across
the nation (personal experience-University of Denver College of Law. 2001). These
articulated Rights are not merely advisory in nature, with the stated Legislative intent
being protection of the people against tyranny, not the reverse.
II.

A PRETEXTUAL STOP IS AN OBJECTIVELY VALID STOP FOR AN

IMPROPER REASON, THAT BEING A SEARCH UNRELATED TO THE
ELEMENTS OF THE STATED INFRACTION OF TRAFFIC LAW
A pretextual stop or arrest is an objectively valid stop for an improper reason, that

being a search for evidence unrelated to the reason stated for the initial stop. It occurs
where the police employ a stop based on probable cause or reasonable suspicion People v
Thompson, 283 Ill App 3d 796, 970 NE2d 1129 (5th D 1996). See also People v Perez, Ill
App 3d, 681 NE2d 173 (3d D 1997) as a device to search for evidence of an unrelated
offense for which probable cause is lacking. Id. Pretext stops commonly involve citizens
traveling in a motor vehicle who are stopped by police for a minor traffic violation just so
the officers can investigate drug trafficking or other more serious crimes. Maryland v
Macon, 472 US 463, 470-71, 86 L Ed 2d 370, 378, 105 S Ct 2778, 2783 (1985), quoting
Scott, 436 US at 136 (citation omitted).
Thus a pretextual stop is an instrument utilized by law enforcement to bypass the
warrant requirement in an attempt to essentially "outsmart" the Bill of Rights and ignore
the freedoms of the citizenry. It puts the occupants of a vehicle, who having committed

nothing more than a potential Class "C" offense at the mercy of law enforcement, who
eager for approbation in a "promotion-driven" world, seize the opportunity to go beyond
the confines of a traffic stop and launch into a full felony investigation sans probable
cause. Warrantless searches are per se unreasonable, unless they fall under one of a
few specific exceptions. Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App.2003)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973));
Reasor v. State, 12 S.W.3d 813, 817 Tex.Crim.App.2000), however the pretextual stop
allows law enforcement, much like the pesky door-to-door salemen of yore, to stick their
metaphoric foot in the door, disallowing closure of said door, until they get their
arrest/sale.
III.

UNDER THE PRETEXT DOCTRINE, EVIDENCE DISCOVERED AND

SEIZED AS A RESULT OF A PRETEXTUAL STOP IS INADMISSIBLE
Under the pretext doctrine, evidence discovered and seized from a pretext stop or

arrest is inadmissible. The evidence is excluded to deter police misconduct and prevent
officers from being rewarded for their pretext. Whren v. United States, 517 US 806, 135 L
Ed 2d 89, 116 S Ct 1769 (1996). The Supreme Court reaffirmed the Whren decision in
Ohio v Robinette, 519 US 33, 136 L Ed 2d 347, 117 S Ct 417 (1996). Evidence obtained
in violation of the Fourth Amendment must be excluded from a federal criminal
prosecution. Weeks v.United States, 232 U.S. 383, 398 (1914). The exclusionary rule
reaches not only primary evidence obtained as a direct result of an illegal search or
seizure, but also evidence later discovered and found to be derivative of an illegality or
'fruit of the poisonous tree.'" Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380
(1984) "It 'extends as well to the indirect as the direct products' of unconstitutional
conduct." Id., quoting Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407
(1963). The exclusionary rule fashioned in Weeks and Mapp v. Ohio, 367 U.S. 643
(1961), excludes from a criminal trial any evidence seized from the defendant in violation
of his Fourth Amendment rights. Fruits of such evidence are excluded as well.
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392 (1920).
IV.

IN THE CASE AT BAR, THE STATED REASON FOR THE TRAFFIC

STOP "LARGE AMOUNTS OF TAPE AND PLASTIC COVERING
THE LICENSE PLATE", WAS TANGENTIALLY REFERENCED THEN

QUICKLY ABANDONED IN FAVOR OF A "FISHING EXPEDITION"

CAR SEARCH
A routine traffic stop is a detention and must be reasonable. Davis v. State, 947
S.W.2d 240, 245 (Tex.Crim.App.1997). The general rule is that an investigative stop can
last no longer than necessary to effectuate the purpose of the stop. Kothe v. State, 152
S.W.3d 54, 63 (Tex.Crim.App.2004) and during a traffic stop, law-enforcement officers
may request information such as a driver's license and vehicle registration, and may
conduct a computer check of that information. See Id.. There are no rigid time limitations
on these detentions. See Kothe at 64. But, once the reason for the stop has been satisfied,
the stop may not be used as a fishing expedition for unrelated criminal activity. See
Davis, 947 S.W.2d at 243.
A pretextual stop is, by definition a 'fishing expedition". Although important
enough for the legislature (a body whose very survivial is dependent upon the constant
fashioning of laws and ordinances) to address, the obscured license plate viewed in
solitary hardly poses a threat to public safety and overall citizen security. On a list of
pressing social and criminal problems, obsured license plates would undoubtedly be very
low on prioritization list, unless one is law enforcement and seeking to find evidence of
additional wrongdoing but lacking probable cause. The alleged "plastic and tape" were
merely the keys that opened the magical Pandora's box of under cup-holder searches and
to pretend otherwise is pure illusory wishful thinking.
V.

FURTHERMORE, THERE IS NO AUDIO RECORDING NOR WRITTEN

STATEMENTS CONFIRMING THE ALLEGED "GIVING" OF CONSENT
PRIOR TO LAW ENFORCEMENT DIGGING THROUGH THE VEHICLE
IN SEARCH OF CONTRABAND UNRELATED TO THE TRAFFIC
OFFENSE
While the Fourth Amendment prohibits unreasonable warrantless searches and

seizures, that prohibition is inapplicable in situations where voluntary consent has been
obtained, either from the individual whose property is searched . . . or from a third party
who possesses common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177,
181 (1990). Therefore warrantless searches are per se unreasonable under the Fourth
Amendment - - subject only to a few specifically established and well-delineated

exceptions, Arizona v. Gant, 129 S.Ct. 1710, 1716 (2009) (citation and internal
quotation marks omitted), Consent to search is one of the well-established exceptions to
the constitutional requirements that a police officer have both a warrant and probable
cause before conducting a search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.
2041, 36 L.Ed.2d 854 (1973), and the validity of a purported search consent turns in large
measure on whether the consent was given voluntarily. Id. Under Texas law, the State
must prove voluntariness of consent to search by clear and convincing evidence, rather
than by a mere preponderance of the evidence.Reasor v. State, 12 S.W.3d 813 (Tex. Crim.
App. 2000) at 817. To be valid, consent to search must be positive and unequivocal and
must not be the product of duress or coercion, either express or implied. Id. at 818, and
consent to search is not shown by mere acquiescence to a claim of lawful authority.
Allridge v. State, 850 S.W.2d 471, 49293 (Tex.Crim.App.1991).The trial court must look
at the totality of the circumstances surrounding the statement of consent to determine
whether consent was given voluntarily. Id.
Unfortunately, in the case at bar, the audio portion of the COBAN does not begin
until AFTER the search has been initiated, ameliorating the ability to ascertain true
consent to an entire vehicular search. There is no written consent to search the vehicle
signed by either occupant of the vehicle There is no showing that the driver has been
warned that he does not have to consent to the search and has a right to refuse. This
would be of evidentiary value in determining whether a valid consent was given. (See
Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App.2002), however the officer is offcamera until he heads for the vehicle and the viewing of the driver alone does nothing to
clarify the situation. Thus, the burden falls upon the State to prove the existence of the
true, informed, non-coerced consent or the failure to get a warrant, combined with the
pretextual nature of the whole incident, would be cause to render any and all evidence
seized as a result to be inadmissible against Ms. Murdock at trial.
CONCLUSION
The traffic stop conducted on 07/17/14, that resulted in the arrest of Ms. Murdock
was a pretextual one, and the articulated rationale was merely a ruse to bypass the need
for a warrant or Probable Cause. Furthermore there is no proof of consent to the search,

thus all evidence gleaned via the illegal search is inadmissible against Ms. Murdock.

Respectfully submitted:
___________________________
NANCY KNOX-BIERMAN
107 Cartwright, Conroe, TX 77301
(832) 670-9102, SB#24059177