Warrantless Search

Bitcoin Privacy 4th Amendment

Are Bitcoin Transactions Private Under the Law?

By | Warrantless Search

Do You Have a Fourth Amendment Privacy Interest in Your Bitcoin Transactions?

Bitcoin Privacy 4th AmendmentNo, the Fifth Circuit Court of Appeals recently held that people do not have a reasonable expectation of privacy in the information (1) contained on the Bitcoin blockchain and (2) that you provide to cryptocurrency exchanges.1 The Court reached this decision through an analysis of the facts under the “third party doctrine” of Fourth Amendment jurisprudence. This doctrine is explained in further detail below.

Read full case HERE. US v. Gratkowski, 964 F.3d 307 (5th Cir. 2020).

First Off, what is Bitcoin?

Bitcoin is a “collection of concepts and technologies that form the basis of a digital money ecosystem.”2 More colloquially, the word “bitcoin” refers to a bitcoin—a unit of digital currency used to store and transmit value among participants in the bitcoin network. Bitcoin derives its value not from physical characteristics like gold or trust in a central authority like fiat money. Instead, bitcoin is backed by the cryptographic technology behind it.

Bitcoin is powered by open-source code known as blockchain, which creates a shared public ledger that is viewable by anyone. Each transaction is a “block” that is “chained” to the code, creating a permanent record of each transaction. In order to transfer anything in this world, you need to be able to send and receive your items to and from a certain location. Bitcoin is no different. Like an email, Bitcoin is transferred between locations on the internet called Bitcoin addresses. A Bitcoin address indicates the source or destination of a Bitcoin payment. The Bitcoin blockchain contains only the sender’s address, the receiver’s address, and the amount of bitcoin transferred. Bitcoin wallets provide these addresses and utilize software that allows you to securely send, receive, and store bitcoin in the bitcoin network.

The central tenet behind the creation of Bitcoin was that willing parties should be able to transact directly with each other without the need for a trusted third party.3 A large part of the value in that kind of decentralization is in the privacy that it assumes will accompany the transaction. However, as the use and influence of cryptocurrencies expands, so too does the need of law enforcement to crack down on the illicit activities of crypto users that our society finds to be reprehensible. Analyzing the block chain for evidence of crimes involving bitcoin inevitably means that information of bitcoin transactions will be collected. This kind of forensic analysis, aside from collecting information on whether the bitcoin was used for something illegal, “can include the collection of large amounts of personal information about a user’s spending habits [and] total holdings[.]”4 The natural question for criminal law attorneys is whether a bitcoin user has a Fourth Amendment privacy interest in the information related to their bitcoin transactions.

Bitcoin Transactions and the 4th Amendment

The Fifth Circuit Court of Appeals in United States v. Gratkowski recently held that individuals do not have a Fourth Amendment privacy interest the information related to their bitcoin transactions.5 More specifically, the court found that there is no Fourth Amendment privacy interest in: (1) information on the bitcoin blockchain itself, and (2) bitcoin transactions in virtual currency exchanges.6

Gratkowski became the subject of a federal investigation when federal agents began investigating a child-pornography website. Users like Gratkowski paid the website bitcoin in exchange for downloadable child pornography. As mentioned above, the bitcoin blockchain only contains the sender’s address, the receiver’s address, and the amount of bitcoin transferred between the two parties. The identity of the owners do not appear on the bitcoin blockchain, but it is possible to discover the owner of a bitcoin address by analyzing the blockchain:

“For example, when an organization creates multiple Bitcoin addresses, it will often combine its Bitcoin addresses into a separate, central Bitcoin address (i.e., a “cluster”). It is possible to identify a “cluster” of Bitcoin addresses held by one organization by analyzing the Bitcoin blockchain’s transaction history. Open source tools and private software products can be used to analyze a transaction.”7

Federal agents used an outside service to analyze the publicly viewable bitcoin blockchain and identify a cluster of bitcoin addresses controlled by the website.8 They then served a grand jury subpoena on Coinbase (a prominent cryptocurrency exchange) for all information the exchange had on the Coinbase customers whose accounts sent Bitcoin to any of the addresses in the child-pornography website’s cluster. Coinbase turned over Gratkowski’s information, and federal agents obtained a warrant to search Gratkowski’s house. The agents found a hard drive containing child pornography and subsequently charged Gratkowski with one count of receiving child pornography and one count of accessing websites with intent to view child pornography.

At trial, Gratkowski moved to suppress the evidence the government obtained under the warrant, arguing that both the subpoena to Coinbase and the analysis done on the blockchain violated the Fourth Amendment. For the government to infringe upon an individual’s Fourth Amendment protection against unreasonable searches, the person must have a “reasonable expectation of privacy” in the items obtained.9 The “third-party doctrine” instructs that a person generally “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”10

For instance, the Supreme Court in United States v. Miller held that bank records were not subject to Fourth Amendment Protections.11 The Court also held that telephone call logs were not subject to Fourth Amendment protections because the telephone numbers we dial are voluntarily conveyed to the phone company when we place a call.12 However, the Supreme Court recently held that individuals do have a privacy interest in their cell phone location records, despite the records being held by a third party.13 In deciding this, the Court set-up the current framework under which courts are to determine whether the third-party doctrine applies to certain information that is shared with third parties: The sole act of sharing the information is no longer determinative as to whether we have a Fourth Amendment privacy interest in it. Rather, courts are to consider, “‘(1) the nature of the particular documents sought,’ which includes whether the sought information was limited and meant to be confidential, and (2) the voluntariness of the exposure.”14

The Fifth Circuit reasoned that the information on the Bitcoin blockchain is more similar to bank records and telephone call logs than to cell phone location records.15 The court held that the information contained on the Bitcoin blockchain (the amount of Bitcoin transferred and the Bitcoin addresses of the sender and receiver) is limited, and Bitcoin users are unlikely to expect that information to be kept private as it is well known that it is recorded on the publicly available blockchain.16 The court also reasoned that the public exposure of this information is voluntary because transferring and receiving Bitcoin requires an affirmative act by the Bitcoin address holder.17 The Fifth Circuit therefore held that there is no reasonable expectation of privacy in the information contained on the Bitcoin blockchain.18

The Court used similar reasoning regarding the question of privacy in the Bitcoin transactions on Coinbase. Coinbase is a financial institution like a bank. Both are subject to the Bank Secrecy Act as regulated financial institutions, and both keep records of customer identities and currency transactions. The Court held that, “[h]aving access to Coinbase records does not provide agents with ‘an intimate window into a person’s life’; it provides only information about a person’s virtual currency transactions.”19 The court also held that, “[s]econd, transacting Bitcoin through Coinbase or other virtual currency exchange institutions requires an ‘affirmative act on the part of the user[,]’ which speaks to the voluntariness with which the information was turned over to Coinbase.20


The Gratkowski decision makes it difficult to imagine any situation in which a court would find there to be a Fourth Amendment privacy interest in information on the Bitcoin blockchain itself. Although Bitcoin users may truly value and believe in the privacy considerations contained in the monetary philosophy of Bitcoin, there is no getting around the fact that a “block” on the blockchain requires two Bitcoin addresses and the amount of bitcoin exchanged. And as long as private blockchain analytics companies continue to analyze only that information in determining the identity of Bitcoin users, courts will likely continue to find there to be no Fourth Amendment privacy interest in that information.

There appears to be more room to work with when it comes to cryptocurrency exchanges. Perhaps a court could find there to be a privacy interest in information given to an exchange whose business centers around user confidentiality. However, exchanges must comply with the same federal financial laws that govern Coinbase, and the record-keeping requirements under those laws would likely provide for a strong analogy to the Gratkowski case.


1. United States v. Gratkowski, 964 F.3d 307 (5th Cir. 2020).
2. A. M. Antonopoulos, Mastering bitcoin: Programming the open blockchain (2nd ed.). Beijing etc.: O’Reilly.
3. Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, (2008).
4. Sasha Hodder & Rafael Yakobi, Bitcoin Fungibility, Mixing and the Legal Limits on Maintaining Privacy, (2020).
5. Gratkowski, 964 F.3d 307 (5th Cir. 2020).
6. Id.
7. Id. at 309.
8. Private blockchain analytics companies also provide services of this nature to cryptocurrency exchanges to help the exchanges meet their obligations under federal money laundering laws. See footnote 4 on the previous page for a discussion of privacy and these laws.
9. United States v. Jones, 565 U.S. 400, 406 (2012).
10. Smith v. Maryland, 442 U.S. 735, 743–44 (1979).
11. United States v. Miller, 425 U.S. 435, 439-40 (1976).
12. Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
13. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018).
14. Gratkowski (quoting Carpenter, at 2219-20).
15. Id., at 311.
16. Id. at 312.
17. Id.
18. Id.
19. Id. (quoting Carpenter, at 2217).
20. Id. (quoting Carpenter, at 2220).

Emergency Aid Police Arrest Texas

Does the Emergency Aid Exception Apply to Vehicle Stops?

By | Warrantless Search

Officers Are Justified in Stopping Vehicles to Render Emergency Aid Making Evidence Found in the Process Fair Game

Emergency Aid Police Arrest TexasThe Fifth Circuit Court of Appeals recently handed down an opinion dealing with the emergency-aid warrant exception and whether that exception extends to vehicular stops. The issue facing the court was whether a traffic stop of Appellant Toussaint to warn him that a gang member had ordered a hit on him was justified under the emergency aid exception to the Fourth Amendment. The court reversed the suppression order from the trial court holding that the emergency aid exception did justify the stop because this was a proper exigent circumstance.

US v. Toussaint (5th Circuit – 2016)

The Facts—Trial Court Found the Exigent Circumstances Had Expired

An FBI agent monitoring a wiretap overheard a suspected gang-member order his associate to kill Toussaint who could be found in a specific neighborhood driving a specific car, a silver Infiniti. Immediately the agent contacted a local police officer who met with several other officers to determine the plan to locate and warn Toussaint of the hit. The officers drive to the specified neighborhood and search for silver Infinities until they find one with an occupant leaving the neighborhood. The officers follow the vehicle, observe the driver, Toussaint, speeding and pull him over. Once pulled over Toussaint flees the officers on foot until he was caught and placed under arrest. During a search of Toussaint incident to arrest officers found a pistol and a bag of crack cocaine. The amount of time between the FBI agent overhearing the initial threat and Toussaint’s arrest was about 45 minutes.

Toussaint was charged with drug and firearm violations. Toussaint filed a motion to suppress the evidence obtained from the stop arguing that the stop was not justified. The trial court granted Toussaint’s motion to suppress finding that the exigency of the emergency had expired by the time the officers stopped Toussaint.

The Court of Appeals Reversed the Trial Courts Decision—Holding the Emergency-Aid Exception Applied in this Case and the Exigency Had Not Expired

The court held that the emergency-aid exception extends to vehicular stops when under the circumstances of the need to assist persons with serious injuries or threatened with serious injury. The emergency aid exception allows officers to conduct warrantless searches or seizures when there is a need to assist persons with serious injuries or threatened with a serious injury. Stuart, 547 U.S. 398 at 483. Under this exception, officers can enter areas they otherwise are not allowed in order to help someone. While the majority of such cases involve warrantless entries into homes, the court determined that there is no logical reason to not extend the exception to vehicular stops. Additionally, looking to reasonableness, “the ultimate touchstone of the Fourth Amendment,” the court stated “the benevolent act of trying to notify a driver that his life is in danger epitomizes reasonableness.” Thus, the court held that the emergency aid exception can be used to justify a traffic stop under proper exigent circumstances.

Then, the court held that the exception applied in this case and officers were justified in stopping Toussaint. The court stated that trial courts must examine objective facts of the circumstance in determining whether there was an objectively reasonable basis for believing exigency actually existed. The officers’ subjective motivations are never relevant in the determination. When the officers received what all parties agreed was a credible threat against Toussaint, who was located in a specific neighborhood and driving a specific vehicle, the court held it was reasonable for the officers to believe there was a serious threat on Toussaint’s life. Further, that exigency still existed at the time of the stop because the threat on Toussaint’s life had not ended within the 45 minutes it took officers to locate him and warn him. Since the stop was justified the search was proper and evidence was legally obtained because it would be contrary to the needs of law enforcement to force officers to ignore evidence found when they stop vehicles to render emergency aid.

In conclusion, the court held that the emergency aid exception extends to vehicular stops and that here, the stop of Toussaint was justified under this exception because there was a serious threat on his life. Accordingly, the court reversed the suppression order because the trial court was improper in granting the motion.

Limiting Consent – Your 4th Amendment Right

By | Warrantless Search

Is it a violation of one’s Fourth Amendment rights against unreasonable warrantless search and seizure if an officer finds drugs in a vehicle through a nonconsensual search?  The United States Court of Appeals for the 5th Circuit said YES in United States v. Cotton.

U.S. v. Cotton– In February 2011, Appellant was driving his rental car when he was pulled over by a police officer who had received a tip that Appellant may be carrying drugs. The officer conducted a traffic stop and asked Appellant twice for consent to search his car. Appellant replied both times that the officer could search only his luggage. After searching through Appellant’s luggage, the officer examined the driver side rear door, which had loose screws and tool marks. The officer pried back the door panel and discovered crack cocaine inside. The officer arrested Appellant who then made incriminating statements to the officer.

The 5th Circuit held that the officer impermissibly extended his search beyond the scope of the Appellant’s consent and therefore violated the Appellant’s Fourth Amendment right. According to the 5th Circuit, “when conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by consent.” Appellant’s consent allowed the officer to only search luggage in areas of the car where luggage might be found. The officer exceeded the bounds of his limited consent when, instead of only searching the luggage, he searched the entire vehicle for drugs.

The 5th Circuit compared Cotton to U.S. v. Solis, which involved an officer who unexpectedly came across heroin during a consensual search of a defendant’s bedroom. When the officer moved a cooler to use as a step, heroin was revealed. The defendant sought to suppress the evidence but the 5th Circuit held that because the cooler was moved only to effectuate the search for the gun, for which consent had been voluntarily given, the officer did not exceed the scope of the consent. Therefore, the heroin was admissible evidence.

However, in Cotton, after searching Appellant’s luggage, the officer expanded his search by examining other parts of the car. The 5th Circuit held that because the officer did not have authority to search discrete locations where luggage would not likely be found, evidence of the crack cocaine must be suppressed as the officer violated Appellant’s Fourth Amendment right.

If your 4th Amendment rights have been violated and you are facing criminal prosecution, give us a call for a free consultation.  Our attorneys will aggressively defend your rights against government intrusion.

DWI Blood Draw Defense Lawyers Fort Worth

Warrantless Search: DWI Blood Draw Struck Down as Unconstitutional

By | DWI, Warrantless Search

DWI Blood Draw Defense Lawyers Fort WorthIssue before the Court: “In the absence of exigent circumstances or consent, does Texas Transportation Code §724.012(b)(3)(B) violate the Texas and U.S. constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times?”

Sutherland v. State (2014)- On the night of February 2, 2011, Austin PD Officer Housmans initiated a traffic stop after a vehicle changed lanes without using a turn signal.  Once the vehicle had pulled over, Housmans approached the driver, appellant Sutherland, and, after speaking with him for “a bit,” asked the appellant to step out of the vehicle.  Housmans administered field sobriety tests on appellant, and arrested appellant based on his performance on the tests and on his suspicion that the appellant was driving while intoxicated.  Appellant refused to provide a breath specimen. Dispatch provided Housmans with Texas DPS records showing that appellant had two or more previous convictions for DWI.  The appellant was then transported to the Travis County jail where, ultimately, a blood sample was drawn without appellant’s consent and without a warrant.

Following the trial court’s denial of a motion to suppress evidence of his intoxication, appellant pleaded guilty to the charges but reserved his right to appeal the trial court’s ruling.  The appellant appealed his conviction for felony DWI.  The appellant challenged the constitutionality of the procedure and authority under which a sample of his blood was taken without his consent.  Appellant contends that the trial court erred by denying his motion to suppress the results of the testing done on the sample of his blood taken in such a manner.

Housmans claimed that he relied on the provision of the Texas Transportation Code that required him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of DWI.  Appellant maintained that, regardless of the mandatory language of the Transportation Code, constitutional protections against unreasonable searches and seizures require that a warrantless search be supported by an established exception to the Fourth Amendment’s warrant requirement, in this case, the exigent circumstances exception.  Appellant further contended that no established exception-exigent circumstances or otherwise – applied here.

According to the Seventh Court of Appeals- Amarillo, the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from appellant’s bloodstream would support a warrantless seizure of a specimen of appellant’s blood.  The arresting officer did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant.  He testified that he made no effort to obtain a warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.  The appellant was not transported to the hospital for medical care, the scene of the traffic stop was not very far from the booking facility, and transportation time was not a factor that could be said to lend to the exigency of the circumstances.  Furthermore, while the unavailability of a magistrate may affect whether an exigency exists to justify a warrantless blood draw, a magistrate is available twenty-four hours a day, every day at the Travis County central booking facility.  Therefore, based on these facts, the trial court erred by denying the defendant’s motion to suppress.  Reversed and remanded.

Consent search Fort Worth Criminal Defense

When The Police May Search a Home Over Occupant Objection

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Can police obtain consent from a co-tenant to conduct a warrantless search a dwelling after another co-tenant, who objected to the search, is lawfully removed?

Consent search Fort Worth Criminal DefenseThe Supreme Court said YES in Fernandez v. California.  Read more below to see what happened and when the police can search a home without a warrant over a tenant’s objection.

Fernandez v. California (2014) – Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas answered.  She appeared to be battered and bleeding.  When the officers asked Rojas to step out so that they could conduct a search of the apartment, Fernandez came to the door and objected to the search.  Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was later identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’s oral and written consent and searched the premises where he found several items linking petitioner to the robbery.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search.  The trial court denied Fernandez’s motion to suppress the evidence, and he was convicted.  The California Court of Appeals affirmed the conviction.  It held that because Fernandez was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, did not apply, and therefore, Fernandez’s suppression motion had been properly denied.

In a 6-3 decision, the Supreme Court ruled that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected.  Here, the Court said that Fernandez did not have a right to prevent the search of his apartment once Rojas had consented.  Although an officer usually needs a warrant from a judge to search a home, home searches are legal whenever the officers are able to obtain consent from an occupant.  According to the Court, “A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant.” Furthermore, “Denying someone in Rojas’ position the right to allow the police to enter her home would show disrespect for her independence.” The judgment of the Court of Appeals was affirmed.

Drug-Sniffing Dog Search

No Solicitors or Drug-Sniffing Dog!

By | Warrantless Search

The Legality of Drug-Sniffing Dog Searches

Drug-Sniffing Dog Search Let’s face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I’m not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man’s front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment “search” requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines’s front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines’s home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home “by the front path, knock promptly, wait briefly to be received, and then leave,” it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government’s use of trained police dogs to investigate the home and its immediate surroundings was a “search” within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott’s Police K9 in North Texas.

Border Patrol Agents Violate Fourth Amendment in Terry Stop But Conviction Upheld

By | Warrantless Search

United States v. Hernandez-Mandujano, (5th Circuit June 27, 2013)

Border PatrolBorder Patrol agents stopped Appellant as he was driving on Interstate 10, approximately 450 miles from the nearest United States-Mexico border crossing. The agents believed Appellant was transporting illegal aliens because he was driving an SUV; had both hands on the steering wheel, and he was not exhibiting the relaxed nature of most drivers. In addition, Appellant’s speed dropped from 70 miles per hour to 60 miles per hours as the agents followed him, and when the agents pulled alongside Appellant, he stopped talking to the person in the passenger’s seat.

The agents learned the car was registered to a woman; however, it had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently crossed the border. During the stop, Appellant told the agents he was a Mexican national in the United States illegally. The government indicted Appellant for reentry without permission by an alien deported after conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2).

At trial, Appellant moved to suppress his statements to the agents, arguing the stop could not be considered an extended border search and the agents lacked reasonable suspicion to conduct a Terry stop. The district court agreed the stop was not an extended border search, but held the agents had reasonable suspicion of illegal activity to support a Terry stop.

The 5th Circuit Court of Appeals held the agents did not have reasonable suspicion to stop Appellant. First, the stop occurred 450 miles from the nearest border crossing and there was no reason to believe Appellant had come from the border. Second, Appellant’s driving posture speed change and the fact the SUV was registered to a woman was not indicative of criminal activity. Third, the SUV had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently been documented as crossing the border. Finally, the agents could not identify anything about the SUV that rendered it more likely than other SUVs to be transporting illegal aliens.

Even though the agents violated the Fourth Amendment in stopping Appellant, the court still denied Appellant’s motion to suppress. The court noted previous Fifth Circuit case law held an alien’s INS file and identity are not subject to suppression when law enforcement officers learn of a deported alien’s unlawful reentry after an allegedly unconstitutional stop.

Fort DWI Blood Draw Lawyers

No Per Se Exigency for Warrantless Blood Draw in DWI Cases

By | DWI, Warrantless Search

U.S. Supreme Court holds:  “In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant.” 

Fort DWI Blood Draw LawyersMissouri v. McNeely, No. 11-1425 (U.S. Apr 17, 2013). The Defendant was charged with DWI.  He filed a motion to suppress the results of a warrantless blood draw that was taken without a valid search warrant.  The trial court granted the motion to suppress.  The Missouri Supreme Court affirmed the grant of the motion.  The U.S. Supreme Court granted certiorari to resolve a split of authority.

The U.S. Supreme Court affirmed the Missouri Supreme Court. Kennedy concurred. Roberts concurred in part and dissented in part. Thomas dissented. The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.  The Court held that it did not.  While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically.

Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances.  Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.  The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.  Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.

Warrantless Search GPS Tracking

Warrantless Search with GPS Device

By | Warrantless Search

Warrantless Search GPS TrackingNew Case from the 5th Circuit (Federal):  United States v. Andres, 2013 U.S. App. LEXIS 143 (5th Cir. Tex. Jan. 3, 2013)

Synopsis:  In December 2009, federal agents conducting an investigation into a large drug trafficking operation installed a GPS device underneath a pick-up truck, with a trailer attached to it, while it was parked on a public street after it had been loaded with twenty kilos of cocaine. Federal agents monitored the truck’s movements as it drove toward Chicago.

The agents contacted the Illinois State Police, gave them information about the truck, and told them they would like to have the drugs discovered during a traffic stop so they would not have to disclose the existence of a federal investigation. After being provided GPS information on the truck, a police officer saw it on an interstate highway and began to follow it.

The officer conducted a traffic stop on the truck for improper lane usage and improper lighting after he saw the trailer was swaying back and forth within its lane and its taillights were flickering.  After the officer wrote a warning ticket, he asked Appellant to get out of the truck so he could talk to him about the taillight problem.

After inspecting the electrical connection between the truck and trailer, the officer handed Appellant his clipboard so he could sign the ticket.  While Appellant was signing the ticket, the officer asked him where he was coming from.  Appellant told the officer he was coming from Joliet, but the officer knew this could not be possible based on the surveillance the officers had been conducting.  The officer also noticed that Appellant had begun to fidget and move his feet and arms around very nervously.  When the officer asked Appellant if he had any drugs in the truck, he said, “No” and then consented to a search with a drug dog.  The drug dog alerted and the officers found twenty kilos of cocaine hidden in the truck.

Appellant argued the drug evidence should have been suppressed because the initial traffic stop was a pretext and not based on any actual traffic offense.  Even if the traffic stop was valid, Appellant claimed the officer’s continued questioning and dog search were not reasonably related to the original reasons for the stop.

First, the court held the officer was justified in stopping Appellant based on the traffic violations he saw.  Second, the court held the officer’s continued seizure of Appellant after the reason for the initial traffic stop ended was supported by reasonable suspicion.  It was reasonable for the officer, who had stopped Appellant for a safety violation concerning his trailer, to ask him to get out of his truck to look at the trailer and discuss the problem.  In addition, the officer’s question, asking Appellant where he was coming from, occurred before the officer had finished dealing with the traffic offenses and did not extend the scope or duration of the stop. Appellant’s untruthful answer created reasonable suspicion that justified his continued detention, which ultimately led to the officer receiving consent to search the truck.

Appellant also argued the warrantless placement and use of the GPS device to monitor the movements of his truck violated the Fourth Amendment in light of the United States Supreme Court decision in U.S. v. Jones, decided in 2012. The Fifth Circuit Court declined to rule on whether warrantless GPS searches are per se unreasonable.  Even assuming a Fourth Amendment violation had occurred, the court held the evidence should not be suppressed in this case because in December 2009, it was objectively reasonable for agents in the Fifth Circuit to believe that warrantless GPS tracking was allowed under circuit precedent.

A Couple of Troubling Cases: Drug Dogs and Consent Searches

By | Warrantless Search
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.”Police Helicopter
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.”