The Court of Criminal Appeals handed down a decision this week that revisits the significance of furtive gestures in establishing probable cause. In Marcopoulos v. State, the Court ruled that quickly leaving a bar that was known drug establishment coupled with furtive movements once the officer initiated a traffic stop was not sufficient to establish probable cause to search the vehicle.

The Background

While surveilling a bar that was well-known narcotics spot, an undercover officer witnessed Andreas Marcopoulos enter the bar for less than five minutes and leave. Finding this suspicious, the undercover officer followed him and radioed for uniformed officers to follow Marcopoulos.

Officers observed Marcopoulos make “furtive gestures” around the center console of the vehicle and the uniformed officer initiated a traffic stop after Marcopoulos failed to signal a lane change. Marcopoulos was arrested for the traffic violation. His vehicle was searched based on probable cause stemming from the officers’ observations. Two baggies of cocaine were found near the center console. Officers found a third cocaine “baggie” in Marcopoulos’ wallet.

Automobile Exception to Search Warrants

Officers may search a vehicle based on the “automobile exception,” which in relevant part, provides that an officer needs probable cause to believe a vehicle contains contraband to conduct a warrantless stop. “Probable cause” is met when there is a “fair probability” of finding contraband or evidence during a search. In determining whether the probability is fair, courts consider factual and practical considerations of everyday life and take into account the totality of all surrounding circumstances.

Challenging the Search of the Vehicle

Marcopoulos filed a motion to suppress the baggies as evidence arguing they were derived from an improper search. The trial court denied the motion and Marcopoulos appealed. The intermediate appellate court upheld the search under the “automobile exception” to the Fourth Amendment warrant requirement, reasoning that Marcopoulos’ “repeated history of going to a place . . . known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him” were sufficient to create probable cause to search the vehicle.

Court of Criminal Appeals on Furtive Gestures

On December 20, 2017, the Texas Court of Criminal Appeals found the combination of Marcopoulos’ “furtive gestures” paired with his short amount of time spent at a bar known for narcotics activity, was not sufficient to create probable cause to search the vehicle. The Court held “furtive gestures” must be coupled with “suspicious circumstances” that link directly to criminal activity in order to establish probable cause. Neither officer witnessed Marcopoulos engage in a drug deal, possess drugs or paraphernalia, or pursue the purchase of drugs while visiting the bar. Additionally, neither officer could link Marcopoulos’ “furtive gestures” to drugs or paraphernalia before conducting the search. No baggies were seen until the search was conducted and neither officer noted additional indicators or evidence that would directly link Marcopoulos’ movements to drug possession. Further, his furtive gestures were not a response to being pulled over, but merely a response to police presence. Therefore, Marcopoulos’ furtive gestures could not be directly and linked to drug possession before officers conducted a search, and any evidence obtained from the improper search should have been suppressed by the trial court.

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