"I had probable cause" is the sentence in the offense report that a suppression hearing is built around. Brian Foley explains what the phrase actually requires in this video.
The automobile exception
Because cars are mobile and subject to pervasive regulation, the Supreme Court has long held (Carroll v. United States, 1925; California v. Acevedo, 1991) that officers may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence of a crime. The search may extend to any part of the vehicle, and any container, where the object of the search could be found.
What probable cause means
A fair probability, under the totality of the circumstances, that contraband or evidence is in the vehicle — based on facts the officer can articulate, not a hunch. It is more than reasonable suspicion (which justifies a brief detention) and less than proof.
Facts that generally establish it
- Contraband or a weapon in plain view
- An admission by the driver or a passenger ("there's a little weed in the console")
- A reliable, trained K-9 alert — though the dog's training and field-accuracy records are discoverable, and the sniff cannot extend the stop beyond its original purpose (Rodriguez v. United States)
- The odor of a controlled substance — increasingly contested in Texas after hemp legalization; see the marijuana smell test
- Information from a reliable informant with corroboration
Facts that generally do not
- Nervousness, sweating, or avoiding eye contact
- Being in a "high-crime area" or on a "known drug corridor"
- Air fresheners, fast-food wrappers, or a "lived-in" car
- An out-of-state plate or a rental car
- Refusing consent to a search — never evidence of anything
- Travel between two cities with a "known drug connection" (every city)
Officers stack these to build a "totality," and suppression hearings are spent taking the stack apart.
What happens when probable cause fails
Everything found in the search — drugs, weapons, cash, phones — is suppressed under the Fourth Amendment and Code of Criminal Procedure Art. 38.23, and the case is usually dismissed. Brian Foley and Luis Baez argued these hearings for the State; they now argue them for the defense. Call or text (713) 703-1718.