TX: Mere furtive gesture not enough for PC

Defendant went into a bar known for drug activity, stayed a few minutes, came out to his car, and drove off. There was a traffic offense and furtive gestures toward the console. The officer stopped him and searched the car. The automobile exception didn’t apply (just barely, the court admits) based solely on an undefined furtive guesture. Remanded for whether some other exception applies in the briefs. Marcopoulos v. State, 2017 Tex. Crim. App. LEXIS 1310 (Dec. 20, 2017) (dissent):

We wish to stress three aspects of our decision today. First, as with any probable cause determination, it is fact-driven. We do not hold that observations akin to Officer Oliver’s will never meet the standard of probable cause; we simply conclude that Marcopoulos’s observed behavior was insufficient in this case. Second, it was only barely insufficient. We do not hesitate to say that, had Oliver observed any additional indicators of drug activity, either at Diddy’s or within Marcopoulos’s car, the scale would tip in favor of a finding of probable cause. Finally, although probable cause to search the vehicle was lacking on these particular facts, we do not conclude that the Fourth Amendment was necessarily violated—we decide only that the automobile exception is unavailing. Nevertheless, the trial court’s ruling must be upheld on any valid theory applicable to the case. Accordingly, we reverse the judgment of the court appeals and remand the cause for that court to render an opinion addressing the remaining contentions of the parties.