A Couple of Troubling Cases: Drug Dogs and Consent Searches
The following cases were reported to me as “interesting cases,” but I would reclassify them as “troubling” (especially the second one). We might just see these again sometime soon if the CCA decides to hear them.
Duration of traffic stop not unreasonable, despite officer’s remark that the purpose of checking passenger’s license was to “buy time” until the K-9 dog arrived.
Campbell v. State, 2012 WL 3201923 (Tex.App.-Tyler Aug 08, 2012) (NO. 12-11-00324-CR)
Quoting from the opinion: “Appellant contends that the true purpose of the stop ended when he was cleared of any outstanding warrants at 12:44 a.m. In his brief, Appellant points out that the evidence indicates that (1) the officers did not smell marijuana in the vehicle, (2) [officers] discussed that Appellant and [passenger] were calm, but that their demeanor might change when the K–9 unit arrived, and (3) [officer] remarked that [other officer] was just buying some time by talking to [passenger]….We initially note that [officer’s] remark concerning [other officer’s] ‘buying time’ is troubling. But the trial court was not required to examine [the] statement in a vacuum. The officers were justified in checking whether there were any outstanding warrants for [passenger]….The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for Appellant and [passenger] at the same time. But the officers were under no obligation to investigate the situation in any particular order.”
D’s consent to house search deemed “voluntary,” despite presence of twenty officers on D’s property and a police helicopter hovering overhead.
Schield v. State, 2012 WL 3228829 (Tex.App.-Hous. (1 Dist.) Aug 09, 2012) (NO. 01-11-00466-CR, 01-11-00467-CR)
Quoting from the opinion: “‘An environment of few or many officers is significant in determining the validity of a consent to search,’ and the Court of Criminal Appeals ‘has been critical of consent given in the face of numbers of armed officers.’….We find this case distinguishable…Appellant was behind a tall privacy fence on his property when [officer] called and asked him to come to the front of the property….[I]n Lowery, one of the officers had a pistol drawn, and at least five officers were inside the apartment before the seventeen year-old gave verbal consent, but here only two officers, with no guns drawn, approached the middle-aged Appellant at his gate to ask for consent….Appellant further testified that none of the officers yelled at him and that he made small talk with the officers before they asked him to sign the consent form.”