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Texas Appeals Court:
Motorists Have No Right To Potentially Exculpatory Dashcam Footage

16 August A.D. 2013

More on the theme of evidence destruction.  That´s the focus of the story and the case below.

In addition to that, let´s look at this one from some additional angles.

1.   Where´s the definition of any "crime" regarding turn indicators?  There isn´t one.


§ 545.104. Signaling Turns; Use of Turn Signals
(a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
(c) An operator may not light the signals on only one side of the vehicle on a parked or disabled vehicle or use the signals as a courtesy or “do pass” signal to the operator of another vehicle approaching from the rear.

Credits

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

Tex. Transp. Code Ann. § 545.104 (West 2011).


"Shall" language is the statutory confession that there´s one and only one way that language becomes enforceable:  "by agreement."  ("Federal" means "federal."  At the level of the individual, "federal" means "by agreement.")

For there to be a "crime" defined, the language has to be "shall not."  There is no crime defined with "shall" language.

If there were an exception to that, what would it be?  Where the relationship sounds in trust, then the fiduciary who doesn´t perform the "shall" terms may be in breach.  It´s possible for a breach of fiduciary duty to constitute a crime.

2.   Who has to use a turn indicator (properly)?  Here, an "operator."  What is an "operator?"  The person behind the wheel of either a "vehicle" or a "motor vehicle."  The disciplined "transportation" code associates "operator" with "motor vehicle."  Not all "transportation" codes are disciplined.  So, verify in your STATE what "operator" is associated with.

3.   When one gets sick and tired of this sort of bad faith, or at least the appearance of bad faith, what´s the solution? 

"THE" solution for "everything" "federal" is very, very simple:  Stop volunteering.  Stop asking to be regulated.  Stop agreeing to be regulated.

Since this present system is 100% commercial, we have 100% control over such matters.

Always remember that when one is behind the wheel, one of two lines of conduct is in play: (A) one is exercising his "right to travel," or (B) one is exercising his "privilege" to engage in that regulated form of commerce called "transportation."  That "privilege" is known popularly as "driving."  It´s also called "operating" in some STATEs.

How do the cops determine the distinction?  How do the courts determine the distinction?  What´s the issue "worth" to those thinking about engaging the debate?

It´s unknown whether the cops are trained to know to look for the distinction.  This author expects that there´s been enough litigation over the "right to travel" that there have to be a few cops here and there who at least know enough to know when not to issue tickets.  It´s unlikely that there´ll ever be formal training on the difference.  Once the cops are allowed to reflect on the differences, they´ll come to the same conclusion we have, namely that it´s all a big scam.  Should they arrive at that perspective, revenue tends to decline. 

The debate exists only where the cops are not trained well enough to know the difference.  Thus, to be in court is to rely on what the court´s look for in order to distinguish "traveling" from "driving/operating."  It´ll come down to the use of the "license" at the time of the stop.  This is an easy matter for those who have no "license," for no mistake can be made when it comes to displaying one.  There isn´t one to display.  While that should be treated as the "best evidence" of the intent NOT to consent to being regulated under the "transportation" code, it´s treated as the "best evidence" of the intent to commit an offense called "driving without a license."  Those who have a "license" will, under the pressures of the moment, be very tempted to display it to the officer.  What this author expects that act does is provide, at that instant, the equivalent of this affirmative statement:  "Please regulate me!"

One has to decide in his own mind whether he´s "driving/operating" or "traveling" the instant that seat belt is fastened.  "Travelers" don´t need "licenses," because "traveling" is a right.  It´s the commercial activity called "driving" or "operating" that is commercial and for which a "license" is required.


Bottom line, the "driver" who produces a "license" at the time of the stop is very dependent on the "good will" and "good faith" of those running this present system.  The "traveler" doesn´t have to depend on anything except the commitment to survive the coming litigation activity.  The courts do recognize the difference between "traveling" and "driving/operating."  The judges may, right now, have an edge on the appreciation of that distinction, in that not even very many defendants who can discern the differences conceptually are in a position to make that distinction stick when it comes to the debates in the public forums. 

As we´re pushed more and more into "compliance," a "kiss our jackboots" mentality, more and more people will come to questioning the legal mechanism.  Key to working through that threshold inquiry is knowing that we do not now have and have never had a "constitutional" system.  We have a Monte Hall´s "Let´s Make A Deal!" system.  One "makes a deal" for purposes of "transportation" code enforcement the instant that "license" is used/displayed/shown at the time of the stop.  Those who communicate, "Please regulate me!" will get that, and more.

Whether or not the stop at the heart of the case below was in good faith, "the" solution for such situations is not found in a discussion on the merits.  "The" solution is found in the preventive stage.  Those in a position to articulate the differences between "traveling" and "driving" don´t ever get to the merits, because the threshold question of whether the "transportation" code even applies is where that conversation stops.  Because the reality is still in path-blazing mode, the obvious is not accepted judicially, yet.  But, to break through that glass ceiling, we have to know their system better than they do.  One demonstrates a commanding understanding of the law by taking charge, ahead of time, over the relevant FACTS.

Harmon L. Taylor
Legal Reality
Dallas, Texas

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-------- Original Message --------
Subject: Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage
Date:  Tue, 16 Aug 2011 06:04:26 -0500

http://www.theagitator.com/2011/08/15/texas-appeals-court-motorists-have-no-right-to-potentially-exculpatory-dashcam-footage/


Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage

Monday, August 15th, 2011

This is pretty incredible:

Drivers have no recourse if police say the tape from a dashboard-mounted video camera is not available, according to a ruling Wednesday from the Texas Court of Appeals. Mark Lee Martin wanted to defend himself against drug possession charges filed in the wake of an August 29, 2008 traffic stop, but he was told no video was available.

Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.

“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video. Martin argued the police were obviously hiding evidence.

“The officers intentionally destroyed the video and thereby put exculpatory evidence as far as the search is concerned or evidence favorable to the accused out of the reach of the accused,” Martin’s attorney claimed. “We feel that for no other reason the search is invalid and any evidence found as a result of that search should be suppressed.”

The appellate court found no merit in this argument.

“We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’”

The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.

Relevant excerpt from my Reason piece “The War on Cameras”:

Last March, Justice Lee Ann Dauphinot of the Second Court of Appeals in Texas complained in a dissent that when defendants accused of driving while intoxicated in Fort Worth challenge the charges in court, dash-camera video of their arrests is often missing or damaged. “At some point,” Dauphinot wrote, “courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for.”

Well I guess they are addressing it, now. They’re giving cops a how-to guide when it comes to destroying dash cam footage that makes them look bad, or that could exonerate a motorist: Just make it look like you’re incompetent, not malicious.

This entry was posted on Monday, August 15th, 2011 at 12:45 pm by Radley Balko and is filed under General Criminal Justice, Motorist Freedom, Police Professionalism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

24 Responses to “Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage”

  1. #1 |  Z |  August 15th, 2011 at 12:49 pm

    Usually, when a party loses in court, they take their ball and go home: rarely are they instructed, step by step, on how to win.

  2. #2 |  rapscallion |  August 15th, 2011 at 12:50 pm

    “unless a criminal defendant can show bad faith on the part of the police, FAILURE TO PRESERVE POTENTIALLY USEFUL EVIDENCE DOES NOT CONSTITUTE A DENIAL OF DUE PROCESS OF LAW.”

    I’m trying my damndest to wrap my head around that sentence, but I just can’t; it hurts too much.

  3. #3 |  Mike Leatherwood |  August 15th, 2011 at 1:07 pm

    To be honest, the idea that a cop is incompetent is soooo very easy to believe.

  4. #4 |  Graham Shevlin |  August 15th, 2011 at 1:22 pm

    What it means, rapscallion, is that the justice system in Texas has just admitted, in a rather unsubtle manner, that due process is a mere optional nicety in their bailiwick.

  5. #5 |  Boyd Durkin |  August 15th, 2011 at 1:23 pm

    The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police,

    The fox has stated unless a hen can prove exactly how many angels can dance on a pinhead, the hen house will remain open to foxes.

  6. #6 |  Irving Washington |  August 15th, 2011 at 1:23 pm

    Just FYI, that’s the Third District Court of Appeals. There aren’t too many justices on it that have criminal law experience. If they take their next appeal, it’ll go to the Court of Criminal Appeals, which for a long time was where defendants’ appeals went to be denied. In recent years, though, it seems to have turned a corner, especially on evidentiary issues.

  7. #7 |  Michael Pack |  August 15th, 2011 at 1:37 pm

    A dash cam can show if a driver is driving recklessly,the only reason someone show be investigated for DUI,unless involved in a accident.It seems cops do not like any video of their work,including bystanders on the own property.They’d rather the courts just take their word.

  8. #8 |  Yizmo Gizmo |  August 15th, 2011 at 1:55 pm

    “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’”

    I was caught up in a similar case once. It came down to this:
    if the (exculpatory) tape exists, and they don’t provide it, then you don’t have to show bad faith (Brady), but if it gets destroyed you do.
    So they just destroy it. I think Bryant vs DC Appeals Court finally addressed
    this ridiculous situation. A court actually recognized the fact that
    cops might incinerate inconvenient evidence when it was in their own interest to do so. Imagine a football game where one side could always
    throw the game.

    ***In United States v Bryant, 142 App DC 132, 439 F2d 642 (1971), on remand (DC Dist Col) 331 F Supp 927, affd 145 App DC 259, 448 F2d 1182, the court attempted to reconcile the two situations and found that such a duty existed. Implicit in his analysis was that under Brady the government must at least make “earnest efforts” to preserve evidence it has gathered (Bryant, supra, 439 F2d at 651).****

  9. #9 |  Anon for this comment |  August 15th, 2011 at 2:18 pm

    I had a bogus reckless driving arrest in Travis County (by Austin Police Department and in Texas reckless driving is very similar to a first-offense DUI) in 2007. I won’t go into all the details, but basically, the officer had decided he was going to arrest me for DUI before he ever got to the car. After finding that I was stone cold sober and had not had a drink in weeks, he decided to run me in for whatever he could, which was reckless driving — an offense that is totally officer’s discretion.

    When my lawyer and I challenged the arrest, we found that the tape from the dash cam was missing. It was not preserved in cases like mine — no reason was given. As a result, I missed out on presenting the evidence that the officer was biased before he ever got to my car, that he was verbally abusive and threatened me several times with physical injury because I was “lying about being drunk”. Overall, it was a very bad scene that the jury never got to see and never got to evaluate the outright lies and fabrications presented in the police report — lies that the tape would have proven.

    In the end, my charges were dismissed and the arrest expunged, so it worked out for me, but it could have easily gone the other way. I was very dismayed to see that the attitude was “we lost the tape, it’s really too bad.”

  10. #10 |  Yizmo Gizmo |  August 15th, 2011 at 2:30 pm

    More Bryant:
    “Were Brady and its progeny applicable only when the exact content of non‑disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by the suppression of evidence by means of destruction rather than mere failure to reveal….”

  11. #11 |  Michael Chaney |  August 15th, 2011 at 2:30 pm

    It utterly frightens me sometimes that I have far more wisdom (and have had since a young age) than men who are trusted to be judges.

  12. #12 |  Mister DNA |  August 15th, 2011 at 2:36 pm

    Jesus. The Free State Project is becoming more attractive each and every day.

  13. #13 |  gersan |  August 15th, 2011 at 2:41 pm

    So the cops in this case are incompetent? Good. You can now start proceedings for removing these cops from duty due to incompetence.

  14. #14 |  Scott Lazarowitz |  August 15th, 2011 at 2:43 pm

    Another reason why we need to end government monopoly in community policing (and security). Allow open, competitive, free entry into that field that requires accountability. Monopolists are not accountable, and, in this case, the government-monopolists in community policing are allowed to be above the law (commit fraudulent guilt verdicts based on illegal searches, allowed to get away with destruction of evidence). See Hans Hoppe:

    http://www.lewrockwell.com/hoppe/hoppe26.1.html

  15. #15 |  paranoiastrksdp |  August 15th, 2011 at 2:56 pm

    The state rules in favor of the state. Is anyone surprised?

  16. #16 |  Zeb |  August 15th, 2011 at 3:11 pm

    Yeah, that’s f*cked. There is no reason why every police encounter that leads to an arrest can not be recorded and preserved until charges are dropped or a trial completed. The standard should be that if the cops can’t produce a video, then they should be presumed to be lying if their story differs from the defendants. Give them some incentive to make sure the video equipment is working.

  17. #17 |  David |  August 15th, 2011 at 3:20 pm

    You can now start proceedings for removing these cops from duty due to incompetence.

    Do what now? You’re speaking English, but the words don’t make sense.

  18. #18 |  JS |  August 15th, 2011 at 3:45 pm

    I’d have a lot more respect for the state if they’d just dispense with the hypocrisy and send the cops out to stick a gun in my face and say “Stick ‘em up!”

  19. #19 |  John C. Randolph |  August 15th, 2011 at 4:01 pm

    Seems to me that the lesson here is: ALWAYS make your own video recording of any encounter with cops.

    -jcr

  20. #20 |  BamBam |  August 15th, 2011 at 4:37 pm

    @9,

    In the end, my charges were dismissed and the arrest expunged, so it worked out for me, but it could have easily gone the other way. I was very dismayed to see that the attitude was “we lost the tape, it’s really too bad.”

    The State happened to you. Something to think about: did it really work out for you? You had to spend time, energy, and money to undo The State’s evil. Were you properly compensated for this, and was the offending officer properly punished? I will guess NO to both, in which case it didn’t work out for you in terms of what is morally right, but it did work out for you in terms of escaping The State’s clutches with only a small amount of damage.

  21. #21 |  JS |  August 15th, 2011 at 5:23 pm

    BamBam “but it did work out for you in terms of escaping The State’s clutches with only a small amount of damage.”

    Sadly, that’s the best we can hope in the freest country in the world.

  22. #22 |  varmintito |  August 15th, 2011 at 6:10 pm

    Sadly, the trend in the Supreme Court for at least the past 20 years has been to give the state a pass. Requiring a criminal defendant/civil plaintiff to prove that the government acted in bad faith is, as a practical matter, a grant of immunity in most cases. In regular civil litigation, spoliation of evidence results in default or a spoliation instruction.

    This case looks like a relatively rare scenario where a default would be appropriate. There was a pre-existing statutory duty to preserve evidence for a specific period; before this period expired, there was an explicit demand by opposing counsel to preserve the evidence; and the spoliation apparently occurred almost immediately and without any persuasive explanation (e.g., no fire, flood, act of war, etc. that would have destroyed the evidence despite the state’s efforts to preserve it).

    These circumstances are so extreme that any criminal charges should be dismissed and civil liability should be deemed admitted. The sole remaining disputed issue should be damages.

    In the more common case, where the inference of intentional or negligent destruction is weaker, the jury is told that they may (but are not required to) infer from the unavailability of the evidence that it would have been unfavorable to the party that had custody of it and was subsequently unable to produce it.

  23. #23 |  DoubleU |  August 15th, 2011 at 6:35 pm

    I saw a youtube video a while back and a police officer was saying how whatever the police record can be easily destroyed. As long as the officer transcribes the recording, then the transcription can be used. This is for any recording including that in an interrogation room.

    It might have come from flexyourrights.com but I think it was another source. I will try and look for it.

  24. #24 |  Jay |  August 15th, 2011 at 7:50 pm

    DoubleU, that’s from part two of the the “Don’t Talk To The Police” video.

    http://video.google.com/videoplay?docid=6014022229458915912

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