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Consent to Search Archives | Page 2 of 2 | Fort Worth Criminal Defense, Personal Injury, and Family Law

Jun 30
0

Come and Knock on Our Door | Child Search Authority

By | Warrantless Search

Child Search Authority | Consent to Search Without a Warrant

Child Apparent Authority to ConsentInvestigating a reported shooting, the police knock on the door to a home that is answered by an adolescent (a minor). Can the minor give the police permission to enter the home? Must the police ask whether the minor lives in the home? Should the police ask to speak to an adult? These issues were considered by the Texas Court of Criminal Appeals in Limon v. State, a case that was released a couple of weeks ago and designated for publication.

In an 8-1 decision, with Judge Womack writing for the majority, the CCA held that, while there is no per se rule that a child may or may not give consent to entry, a minor may possess apparent child search authority. The CCA cited the reasoning of the Supreme Court in the case of Georgia v. Randolph, 547 U.S. 103 (2006) and also noted five key facts that contributed to its ultimate conclusion that the minor in this case had the apparent authority to consent to entry:

1) [The minor] opened the door by himself in response to [the officer’s] knock;

2) The trial court could have inferred from [the officer’s] testimony that [the minor] appeared to be a teenager of significant maturity, if not a young adult;

3) [The minor] consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. (The reasoning being that the trial court could have believed that it was reasonable to rely on a teenager’s authority to consent to such a limited scope of entry, while it would not have been reasonable to rely on his authority to consent to a more intrusive search.);

4) The officer’s announced purpose was to conduct an emergency public-safety function; and

5) The time of entry (2 AM) could have led the trial court to believe that an individual opening the door at that hour was a resident rather than a guest.

Judge Meyers dissented, stating:

Nobody gives a teenager permission to allow strangers into their home. Yet, the majority focuses on what apparent authority the child in this case may have had to let the cops into the house a 2 o’clock in the morning. The police should presume that minors have no authority to consent to entry and should ask to speak to an adult. If no adults are available then the officers need to get a warrant (and possibly call CPS).

Jun 14
0
Consent to search passenger

Search of a Passenger’s Handbag Violates 4th Amendment

By | Search & Seizure

Driver cannot give consent to search a passenger’s private bag.

Consent to search passengerUnited States v. Cantu is an interesting case with 4th and 5th Amendment issues coming out the Fifth Circuit. Of course, it’s an unpublished opinion, so it has no precedential value, but it’s a good case on federal criminal procedure.

The Fifth Circuit Court of Appeals (Federal) held that an officer’s warrantless search of Appellant’s handbags, during a traffic stop, violated the Fourth Amendment. Although the driver consented to search of the vehicle, he had neither the actual nor the apparent authority to consent to a search of his passenger’s property. The officer had no authority to search inside Appellant’s closed bags without her consent, which he neither sought nor obtained, and he knew the bags he was searching belonged to her.

After Appellant’s arrest, while being transported to jail, she made incriminating statements to the officer, without having been properly Mirandized. Approximately 4.5 hours later, DEA agents met with Appellant, Mirandized her, obtained a valid waiver and obtained a written confession from her.

The court held that the DEA interrogation and resulting confession were not tainted by the arresting officer’s earlier Miranda violation while transporting Appellant to the jail. There was little continuity between the two interrogations. The arresting officer asked his questions in his patrol car, while different personnel working for a different agency conducted the later DEA interview in a different location. There was a 4.5-hour break between the two interrogations and the DEA agents, in their interview, did not exploit or refer back to Appellant’s earlier statements.

Additionally, the court refused to suppress Appellant’s written confession to the DEA agents based on the arresting officer’s illegal search of her bags. The court held that the illegality of the search was clear however, the connection between the evidence it produced and Appellant’s confession to the DEA agents was weak. There was nothing to indicate that the discovery of a small amount of marijuana in the bags compelled Appellant to confess to possession of a large quantity of cocaine later found hidden in the vehicle. Further, Appellant was provided Miranda warnings, interviewed by different officers from a different agency and approximately seven hours had passed between the search of Cantu’s purse and the receipt of her written confession.

The full circumstances of the DEA interrogation served to purge the taint of the earlier illegal search.

May 04
0
Consent to Search Car in Texas

Do You Consent? Do You Consent? Do You Consent?

By | Warrantless Search

Consent to Search Car in TexasToday, the Texas Court of Criminal Appeals released Meekins v. State, a case out of Lubbock County wherein the issue for appellate review was whether that State proved by clear and convincing evidence that Appellant had consented to a search of his vehicle.

At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:

After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver’s side window:

Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?

Appellant: No

Officer: You don’t mind if we take a look?

Appellant: (Inaudible) Look in the car or what?

Officer: Yeah.

Appellant: I don’t have anything.

Officer: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer: What do I think?

Appellant: Yeah.

Officer: I’m asking you to look in the car.

Appellant: (Inaudible)

Officer: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer: You don’t mind if we look?

Appellant: I just…(inaudible) That it (inaudible).

Officer: Okay.

Appellant: (Inaudible)

Officer: I’m asking if I can look in the vehicle. It’s yes or no.

Appellant: (Inaudible)

Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.

Appellant: I ain’t nervous.

Officer: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer: Okay. Do you mind if I look?

Appellant: I guess.

After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.

The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”

In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the “totality of the circumstances” and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.

Dissenting, Judge Meyers joined by Judge Price, states:

I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.

The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.

This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.