Diddy’s Sports Bar in Houston has what the Texas Court of Criminal Appeals (TCCA) described as “a well-documented history of narcotics sales.”


But does that mean a patron who enters the bar, stays a few minutes before leaving is a suspected drug user/purchaser?


In a December 20, 2017 decision, the TCCA answered that question in the negative.


Sports Bar under Surveillance for Drug Activity


On September 10, 2014, Houston Police Officer J. Oliver had Diddy’s under surveillance. He was eyeballing the patrons entering and leaving the bar for possible suspicious behavior exhibiting any actions he thought night indicate drug activity.


  1. Marcopoulos was unaware of Officer Oliver’s eagle eye surveillance when he entered Diddy’s and stayed three to five minutes before getting into his vehicle and driving away.


That was all Oliver needed to believe that Marcopoulos entered the bar, purchased drugs, and left with the drugs in his possession. The officer pulled his unmarked vehicle behind Marcopoulos’ vehicle knowing that within a few blocks he would observe the suspected drug buyer committing a traffic violation that would justify a “vehicle stop.”


Officer Follows Watching for Traffic Violation


Oliver reportedly observed Marcopoulos change lanes without signaling. Wanting to maintain his undercover status, Oliver radioed Officer T. Villa to conduct the traffic stop. As Officer Villa pulled behind Marcopoulos’ vehicle, he reportedly observed Marcopoulos make some “furtive gestures” around the console area of his vehicle.


Sitting in his unmarked vehicle next to Marcopoulos’ vehicle, Officer Oliver also allegedly observed those same “furtive gestures.”


Arrested for Being at Bar and Making Furtive Gestures


Officer Villa activated his “emergency lights” and initiated a traffic stop. The officer immediately arrested Marcopoulos. A search of Marcopoulos’ vehicle by Villa discovered a packet of cocaine in the center console and another packet between the console and the passenger seat. A body search of Marcopoulos found a third packet of cocaine in the suspect’s wallet.


Marcopoulos’ attorney, Robert Fickman, filed a motion to suppress as to the drug evidence. The district court denied the motion. After his attorney wisely preserved his client’s right to appeal by getting a ruling on the motion to suppress, Marcopoulos elected to plead guilty to the charged offenses and received three years of deferred adjudication.


On appeal to the First District Court of Appeals, Marcopoulos argued that the search of his vehicle was unlawful because it did not qualify as an inventory search and because it exceeded the scope of his arrest. The State, on the other hand, argued that the search was lawful because it “was incident to arrest.”


First District Court of Appeals Gets It Wrong


The appeals court effectively dismissed both of Marcoloulos’ arguments out of hand. In a plurality decision, two justices said there was probable cause to search Marcopoulos’ vehicle because of his “repeated history of going to a place … known for selling narcotics, his uncommonly short time spent at [the] bar, and his furtive gestures when he noticed a patrol car behind him.”


The dissenting justice saw the case in a completely different light. He said there was no probable cause to search Marcopoulos’ vehicle because there was no corroborating evidence to support the “furtive gestures” Officer Villa used as a basis to conduct the search.


The dissenting justice was right.


Furtive Gestures Alone Not Enough


The law in Texas is clear: as far back as 1974, the TCCA has held that “furtive gestures” alone is not a “sufficient basis for probable cause;” that there must be some corroborating evidence beyond those gestures.


The question before the TCCA in the Marcopoulos case, then, was whether the defendant “appearance at a known narcotics establishment” was sufficient corroborating evidence of the “furtive gestures” to support probable cause.


Fortunately, the state’s highest court of criminal appeals found that the mere appearance at a bar with a narcotics reputation is not by itself a basis to support a probable cause determination. The court explained its reasoning this way:


“… Though Officer Oliver knew Diddy’s to be a hotbed of narcotics activity, this activity was never even remotely linked to Marcopoulos. Oliver did not witness Marcopoulos initiate a transaction; engage anyone in the pursuit of drugs; or possess any containers, cash, or other paraphernalia which would suggest that he intended to buy or had recently brought contraband. Oliver testified that officers had “seen [Marcopoulos] at the location before,’ and the parties spent much of their briefing arguing whether the trial court could reasonably infer from this testimony that Marcopoulos had ‘been there multiple time,’ or only ‘one prior occasion.’ But even assuming Marcopoulos had been as Diddy’s ‘multiple times,’ this hardly leads to the conclusion that, as suggested by the State, Oliver knew Marcopoulos to be a repeat narcotics customer.


“While we do not discount the suspiciousness of Marcopoulos’ unusually brief appearance within the bar, this behavior does not ‘warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ There remains, then, a discernible gap between the reasonable suspicion aroused by Marcopoulos’ brief presence at Diddy’s and the proof necessary to establish probable cause … furtive gestures must be coupled with “reliable information or other suspicious circumstances relating the suspect to the evidence of crime” to establish probable cause.”


Just goes to show you that a trial judge and two justices on the First District Court of Appeals can miss the target and that great defense lawyers can eventually hold them to the rule of law.