holding that a detention occurs when a citizen in a parked car complies with a police officer’s request to roll down the window, open the door, or get out of the car
How later courts described this case
- holding that a detention occurs when a citizen in a parked car complies with a police officer’s request to roll down the window, open the door, or get out of the car
- holding that “when a person is sitting in a parked car and a police officer orders him to roll down the window or to open the door,” detention has occurred
- holding that no further objection at trial is necessary to preserve a complaint of a denial to a motion to suppress
- holding an investigative detention occurs when a police officer orders a person who is sitting in a parked car to roll down his window or to open his door
Written by the judges who cited it.
Distinguished
Distinguished by Robert Edward Collins v. State (2007)
Furthermore, Ebarb is distinguishable because in
Distinguished by in the Matter of G. L. v. (1996)
We distinguish Ebarb because when the sheriff approached Ebarb's car, he and six or more
Distinguished by Gillum v. State, 1990 Tex. App. LEXIS 837 (1990)
The Ebarb case is distinguishable, because in the instant case the information provided by the informant was not the basis for appellant’s detention and arrest for the consumption of alcohol.
The opinion
ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge.
After granting the State’s motion for rehearing, we conclude that the panel’s majority opinion was entirely correct.
The dissenting opinion from the panel would hold that there was no investigatory stop in this case because “[t]he car was already stopped when the officers arrived.” This would confuse two distinct meanings of the word “stop.” In the law of search and seizure the term “stop” means *850 something other than “halt”; it refers to a type of temporary detention for investigation. The “stop” was put in its constitutional framework in Terry v. Ohio, 392 U.S. 1, 16 , 88 S.Ct. 1868, 1877 , 20 L.Ed.2d 889 (1968): “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” It matters not whether the person was moving or standing still when the police officer accosted him; 1 what matters is that the person was then restrained in his freedom to move. Thus, when a person is sitting in a parked car and a police officer orders him to roll down the window or to open the door, there is at that point a temporary seizure for investigative detention—a “stop.” State v. Smith, 137 Ga.App. 101 , 223 S.E.2d 30 (1975). A “stop” is a seizure that is less intrusive than a full arrest, just as a “frisk” is a pat down for weapons that is less intrusive than a search for evidence. A “stop” has no more to do with a person’s prior motionlessness than a “frisk” has to do with his prior friskiness.
“The terms ‘stop’ and ‘frisk’ are used herein as convenient ways of referring to distinct police practices, and their use is not intended to suggest that the words themselves aid in resolving the difficult constitutional issues concerning these practices.”
W. LaFave, 3 Search & Seizure, Sec. 9.1(a) n. 2.
The appellant was detained as soon as the sheriff approached her car, while the other members of the impromptu posse were blocking the driveway and detaining the appellant’s son. See United States v. Beck, 602 F.2d 726 (5th Cir. 1979).
There is no cause for the expressed concern that this opinion will “unreasonably curtail legitimate investigation of crimes.” No change in the law has been wrought. Our opinion should curtail only two things:
It should deter officers (and prosecutors, if this case is typical) from undertaking to detain people on evidence which would not warrant a man of reasonable caution in the belief that the action taken was appropriate. Such seizures as the one in this case are not, and have not been permitted by the Fourth Amendment to the United States Constitution and Article 1, Section 9, of the Texas Constitution.
It also should curtail the prosecutors’ practice of offering the fruits of a search and seizure without first proving that the search and seizure were proper under our constitutions.
One or both of these two infirmities affected the evidence in this case, and it should not have been admitted. V.A.C.C.P., Article 38.23.
The State’s motion for rehearing is overruled.
. Terry v. Ohio, supra, itself demonstrates that a motionless person can be “stopped,” for Terry was not moving when the policeman grabbed him and spun him around. “Officer McFadden followed Chilton and Terry and saw them stop . . . 392 U.S. at 6 , 88 S.Ct. at 1872 (emphasis supplied).