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Loftin v. Morales12/14/2005
f the Probe might abandon the vehicle and enter one of the homes. He described running over a stop sign, going into the ditch, and accelerating again on Jason Street. While driving down this street, he saw a slow moving blue object enter their path from the left and felt the impact.
Evans's May 21, 2003 affidavit is identical to the January 2005 affidavit described above.
Morales's expert, David A. Lysek, investigated the accident. He concluded that driving at speeds up to one hundred miles per hour on a farm-to-market road presents a clear risk of injury or death to the public and driving between fifty and sixty miles per hour in a residential subdivision, disregarding stop signs, and entering a blind intersection at fifty or sixty miles per hour creates a very clear risk of serious personal injury or death to the public. In Lysek's opinion, no reasonably prudent peace officer could believe that the pursuit of May 14, 2001 did not create a risk of serious harm. Relying on Loftin's statement that he did not believe there was an immediate need to apprehend the driver of the Probe, Lysek stated that no reasonably prudent peace officer who believes that the immediate apprehension of a suspect is not necessary would engage in a high speed pursuit or believe that a high speed pursuit in a residential subdivision was justified.
Lysek reported that the entry of Shadybrook clearly marked it as a gated subdivision and it was obvious that it was a residential area. He described the roadways as narrow. When two cars meet from opposite directions, both vehicles must move to their right and drive on the shoulder or grassy area. Speed limit signs indicated a thirty mile per hour limit in the subdivision. Vegetation in the subdivision caused "blind corners" at intersections. He noted that a vehicle failing to stop for the stop sign at the intersection where the wreck occurred would not have time to react for traffic even at thirty miles per hour. Witnesses stated that they observed the patrol car traveling between sixty and seventy miles per hour in the residential area. Lysek stated that a speed of sixty miles per hour is supported by the physical evidence.
Analysis
With regard to the need element, the officers are required to show they considered the "urgency of the circumstances" and the "seriousness of the crime" involved as if applying a sliding scale of need based on how heinous the crime or how contemptible the criminal. Here, the original crime to which the officers responded was a traffic violation, speeding nineteen miles per hour over the limit. Although the officers did not know who was driving the Probe, they knew to whom the car was registered. Even though Loftin suspected the car was stolen, the officers knew the Probe had not been reported stolen. Although speeding, there was no evidence that the suspect drove recklessly prior to the onset of the chase. See Tex. Transp. Code Ann. § 545.401(a) (Vernon 1999) (A person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property.). When the officers attempted to stop the Probe, the suspect quickly violated additional laws, creating a danger to the public in the process. It is an offense to flee from a peace officer attempting a lawful arrest or detention. Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003). Nonetheless, there was no evidence that, at the time the chase was initiated, the circumstances were of such urgency that taking the suspect into custody immediately was necessary. See Wadewitz, 951 S.W.2d at 467.
Morales targets Loftin's statements that there was not a need to apprehend the driver of the Probe and that he did not feel it wou
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