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Fort Worth Illegal Search Lawyers

Equivocal Consent to Search is Still Consent

By | Search & Seizure

Search & Seizure Update | Fort Worth Illegal Search & Seizure Attorneys

Fort Worth Illegal Search LawyersLate in the evening, two San Antonio police officers saw a truck driven by Arthur Warren. The truck matched the description of a vehicle that was suspected of transporting a large shipment of narcotics. When the officers saw Warren’s truck, they observed that the license plate on the trailer was not illuminated, and they saw the truck swerve across the median and across the double white line.

The officers stopped Warren’s vehicle. Officer Dupee testified that he saw a can of beer inside the truck. Officer Galvan asked Warren to get out of the truck, and the officers performed a field sobriety test on Warren.

The officers asked Warren if they could search the truck and trailer. Officer Dupee testified that Warren said, “Yes, go right ahead.” Officer Galvan saw something peculiar as he searched the truck and signaled Officer Dupee to handcuff Warren. Officer Dupee told Warren that he was not under arrest, but he was just being detained. Officer Dupee testified that Warren’s demeanor changed from “nice and compliant” to “upset and depressed.” Warren gave the officers the keys to a compartment where they found marijuana.

Warren testified that he did not give consent to search the truck and trailer, but rather said, “Well, you’re going to anyway.” He further testified that the officers handcuffed him only after he became upset about how they were searching the car on the trailer.

In a pre-trial motion, Warren moved to suppress the evidence (the marijuana) as a violation of his Fourth Amendment protection against unreasonable search and seizure. The trial judge denied the motion. Warren made a plea agreement and received six years deferred adjudication.

On appeal, Warren claimed that the State had failed to prove that he voluntarily consented to the search of his truck and trailer and that any consent that might have been given was tainted because Warren was detained for an extended time.

As with any appellate review of a motion to suppress, the Court of Appeals gave almost total deference to the trial court’s determination of the facts and assessment of credibility of witnesses. The Court then reviewed the trial court’s application of the law to the facts.

An exception to the Fourth Amendment protection against warrantless searches is a search where voluntary, uncoerced consent is given. The State bears the burden of proving that the search was voluntary. Warren argued that the State did not meet this burden.

The trial judge determined Officer Dupee to be credible when he stated that Warren gave consent to the search voluntarily and not under duress. Warren’s claim that he felt he had no choice but to consent was considered, but the Court of Appeals noted that case law provides for a presumption that if someone’s constitutional rights are about to be violated, the individual will assert those rights.

The Court of Appeals gave deference to the trial court’s assessment of Officer Dupee’s and Warren’s credibility and upheld the conclusion that Warren’s consent was voluntary.

As for the length of the detention, the Court noted that police cannot use a traffic stop as a “fishing expedition” to discover unrelated criminal activity. Once the purpose of a traffic stop is satisfied, additional reasonable suspicion is required for further detention. The trial court had found that the detention was initially related to the tip that narcotics were being transported in a vehicle matching the description of Warren’s truck and that Warren’s erratic driving justified the officers investigating whether he was intoxicated.

Even if the officers had satisfied their investigation of Warren’s intoxication, they were justified in continued detention due to the traffic violations they had observed and their observation of Warren’s bloodshot eyes and the beer can in the cab of the truck. Based on the officers’ testimony that Warren had consented to the search of the vehicle, the trial court found that the detention was not extended illegally. The Court of Appeals agreed that the officers had probable cause to initiate the stop, that Warren consented to the search and that the length of the detention was not unreasonable.

This case highlights two principles of Fourth Amendment law. First, while the State is required to prove the voluntary nature of a consent to search, the court is not required to accept the defendant’s position on that issue if the circumstances indicate that consent was voluntary. Second, while police officers may not extend a traffic stop to search for other possible unrelated violations, as long as the officers have reasonable suspicion of illegal activity and are investigating that suspicion, the driver can be detained until the officers’ investigation is complete.

This case reinforces our advice in previous articles…DO NOT GIVE CONSENT TO SEARCH!  Make the officers get a warrant.  It’s their job and your right!

Fort Worth Warrantless Search

Endless Justifications for Warrantless Search & Seizure

By | Search & Seizure

Warrantless Search & Seizure Upheld Under Exception to the Constitutional Warrant Requirement

Fort Worth Warrantless SearchThe Fourth Amendment to the U.S. Constitution protects people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable search & seizure.”  Most people believe that a search without a warrant is an automatic violation of the 4th Amendment.  Not so.  Through years of criminal cases, the courts have crafted numerous exceptions to the warrant requirement.  Below is a case brief from a recent federal case in which several of these exceptions to the warrant requirement were employed against the defendant.

United States v. Conlan – U.S. Court of Appeals for the 5th Circuit

Over a one-year period, defendant Conlan sent a series of threatening emails and text messages to a woman he dated as a teenager. The police issued an arrest warrant for Conlan for harassment, and learned that he was registered in a local motel. After the officers saw Conlan’s vehicle in the parking lot, they had the motel manager call Conlan to the front desk where they arrested him. When an officer asked Conlan if he wished to get anything from his room before being taken to the police station, Conlan said yes. Officers accompanied Conlan to his room and retrieved his wallet. While in Conlan’s room, the lead investigator saw a laptop computer and two cell phones lying on the bed and ordered another officer to seize them. A subsequent search revealed the cell phones had been used to call the victim’s workplace and obtain directions to her house, and the laptop used to conduct Internet searches for the victim’s name. The officers also searched Conlan’s car, which was located in the motel parking lot and seized a loaded handgun and riot stick. 

A trial, Conlan filed a motion to suppress the items seized from his motel room. By having the manager summon him to the front desk, Conlan argued the officers created the situation where he would be without his effects and forced into requesting a return to his room. Conlan also argued the officers unlawfully searched his car without a warrant.

First, the court held that if the officers wanted access to Conlan’s room, they could have executed the arrest warrant there. In addition, the court found there was no evidence to suggest the officers pressured Conlan into returning to his room. Finally, when Conlan told the officers he wanted to return to his room, the officers did not violate the Fourth Amendment by accompanying him there.

Next, the court held the officers made a lawful plain view seizure of Conlan’s cell phones and laptop computer because the incriminating nature of these items was immediately apparent. The incriminating nature of an item is “immediately apparent” if an officer has probable cause to believe that the item is either evidence of a crime or contraband. Here, the lead investigator who ordered the seizure of Conlan’s laptop and cell phones had first-hand knowledge of Conlan’s harassing electronic communications; therefore, he had probable cause to believe these items constituted evidence of the crime of harassment.

Finally, the court held the warrantless search of Conlan’s vehicle was lawful. Before locating Conlan at the motel, the officers knew that Conlan had recently driven his car past the victim’s house. This act formed part of Conlan’s course of criminal conduct and provided the officers with probable cause to believe the vehicle was evidence and an instrumentality of the crime of harassment. Consequently, the officers were entitled to impound and search Conlan’s vehicle.

Warrantless Search Defense Attorneys – Fort Worth, Texas

If you believe that you have been the victim of an unlawful search and you are currently under investigation or charged with a crime in Texas, contact a criminal defense attorney today. Barnett Howard & Williams PLLC offers free consultations on all criminal cases.

Fort Worth Criminal Lawyers Warrantless Search

When is a “No-Knock” Entry Legal?

By | No-Knock Entry

Can Police Enter a House Without Knocking or Obtaining a Warrant | No-Knock Entry Defense Lawyers, Fort Worth.

Fort Worth Criminal Lawyers Warrantless SearchThe Fourth Amendment, generally, protects American citizens from unreasonable searches and seizures. Nevertheless, there are exceptions that allow police officers the ability to enter one’s home without a warrant or notice. These instances are commonly called “No-Knock” entries and are permitted only when a police officer has a reasonable suspicion that knocking and announcing their entry would be dangerous or futile.

In Trent v. Wade, the Defendant, a police officer, witnessed two all-terrain vehicles (ATVs) racing on a closed section of a freeway. He attempted to pull over the two ATV riders, but they both fled, and the Defendant followed one rider to the Plaintiff’s house. The Defendant parked outside and entered the house without a warrant, upon which he encountered the Plaintiff and discovered that his son was the person riding the ATV. The Defendant arrested the son, and the Plaintiff sued the Defendant under 42 U.S.C § 1983 claiming that the Defendant violated his Fourth Amendment rights against unreasonable searches and seizures by entering his house unannounced and without a warrant.

The Defendant argued that because he was in hot pursuit of the Plaintiff’s son, the hot pursuit exception authorized his unannounced warrantless entry into the Plaintiff’s house. However, in order to justify a “no-knock” entry, the police officer must reasonably suspect that knocking and announcing his or her entry would be dangerous or futile. Such an entry is futile when the occupants of a house are already aware of the police officer’s presence outside. The Court ultimately held that while the Plaintiff’s son was aware of the Defendant’s presence, there was a question of fact about whether the other occupant’s of the house were aware of his presence.

Consequentially, the Defendant was denied qualified immunity.

Fort Worth Criminal Defense Child Victim

Search & Seizure: Officer’s Mistake of Law

By | Search & Seizure

United States Supreme Court | Search and Seizure Update

Fort Worth Criminal Defense Child VictimWe expect that police officers know the law.  After all, they are charged with upholding the law.  But what happens when an officer makes a traffic stop based on an incorrect understanding of the law and then finds evidence of another crime during his improper stop?  The Supreme Court recently considered this scenario in the case outlined below:

In Heien v. North Carolina, a North Carolina police officer stopped a man for driving with one broken brake light.  The driver later gave consent to the officer to search his vehicle. The officer discovered cocaine charged the driver with trafficking cocaine. The driver argued that the officer made a mistake of law for stopping him on one faulty brake light and not two (which is what NC law requires) therefore evidence should be suppressed.  The NC vehicle code makes clear that the officer was mistaken when making the traffic stop.

The Supreme Court granted cert to review the case and the question of whether an officer who makes a mistake of law still gives rise to reasonable suspicion. They Court ruled that the officer’s mistake of law was objectively reasonable and that ultimately, the Officer had reasonable suspicion to conduct the traffic stop.  In so holding, Chief Justice Roberts wrote “The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials ‘fair leeway for enforcing the law.'”

While not dealing with specific state law in Texas, the ruling in this case did address reasonable suspicion as it relates to unreasonable searches prohibited by the 4th Amendment.  Article 38.23 of the Texas Code of Criminal Procedure states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

While Article 38.23 of the Texas Code of Criminal Procedure provides an exception if an officer is acting in objective good faith reliance on a warrant, it does not give a reasonable suspicion exception to conduct a search.  Clearly, the Heien opinion will be cited by the State to support searches even when the initial stop is conducted illegally.  We will just have to wait and see how our Texas Courts will react in light of Heien v. North Carolina.

Fort Worth warrantless cell phone search

No More Warrantless Searches of Cell Phones

By | Search & Seizure

Is it a violation of the 4th Amendment prohibition against unreasonable search & seizure for a police officer to search a suspect’s cell phone without a warrant?

Fort Worth warrantless cell phone searchU.S. Supreme Court Holding: YES – The 4th Amendment prohibits officers from searching a suspects cell phone for information without a warrant.

Riley v. California; U.S. v. Wurie, (Consolidated by the Supreme Court in one case) 2014 U.S. LEXIS 4497 (U.S. June 25, 2014)

Riley v. California: In this case, Police officers arrested Appellant and searched the cell phone he was carrying incident to his arrest. The officers discovered photographs and videos on Appellant’s cell phone that were admitted as evidence against him at trial. As a result, Appellant was convicted. The California Court of Appeal affirmed the conviction, holding that the warrantless search of Appellant’s cell phone incident to his arrest was lawful.

U.S. v. Wurie: In this case, Police officers arrested Appellant for distribution of crack cocaine and seized two cell phones from him. Officers searched the call log on one of the cell phones and determined the phone number labeled “my house” was associated with a nearby apartment. Officers went to the apartment and saw the name “Wurie” written on the mailbox. The officers obtained a warrant, searched the apartment and found drugs and firearms.

Appellant filed a motion to suppress the evidence seized from his apartment, arguing the officers violated the Fourth Amendment by searching his cell phone incident to arrest. In reversing Appellant’s conviction, the First Circuit Court of Appeals held the search incident to arrest exception to the Fourth Amendment’s warrant requirement did not authorize the warrantless search of data on cell phones seized from individuals arrested by police officers.

The Supreme Court consolidated the cases, holding that police officers generally may not search digital information on a cell phone seized from an individual who has been arrested, without first obtaining a warrant.

Previously, the court held police officers could conduct warrantless searches of arrestees and possessions within the arrestees’ control, incident to a custodial arrest. The court concluded such searches were reasonable in order to discover weapons or any evidence on the arrestee’s person so that evidence could not be concealed or destroyed.

The court concluded this rationale does not apply to modern cell phones. First, digital data stored on a cell phone cannot be used as a weapon to harm an arresting officer or aid an arrestee in escaping. The court emphasized that police officers may still examine the physical aspects of phone to ensure that it will not be used as a weapon. For example, the court noted a police officer may examine a cell phone to determine whether there is a razor blade hidden between the phone and its case. However, once an officer has secured a phone and eliminated any potential threats the data on the phone cannot harm anyone.

Second, the court stated the government provided little evidence to believe that loss of evidence from a seized cell phone, by remote wiping of the data on the phone, was a common occurrence. Even if remote wiping were a concern, the court listed two ways remote wiping could be prevented. First, the officer could turn the phone off or remove its battery. Second, the officer could put the phone inside a device, called a Faraday bag, that would isolate the phone from radio waves. The court added that Faraday bags are cheap, lightweight, and easy to use and a number of law enforcement agencies already encourage their use. In addition, the court commented that if a police officers are truly confronted with individualized facts suggesting that a defendant’s phone will be the target of an imminent remote wiping attempt, they may be able to rely on exigent circumstances to search that phone immediately.

The court further recognized that cell phones are different from other objects that an arrestee might have on his person. Before cell phones existed, a search of an arrestee generally constituted a small intrusion on the arrestee’s privacy. However, modern cell phones are, in essence, mini-computers that have immense storage capacity on which many people keep a digital record of nearly aspect of their lives. Consequenly, the warrantless search of a cell phone consitutes a significant intrusion upon a person’s privacy. If police officers wish to search a cell phone incident to arrest, they need to obtain a warrant.

Criminal Attorneys Fort Worth

CCA Reverses a “Nonconsensual” Police Encounter

By | Search & Seizure

Illegal Search and Seizure Defense Attorneys

Criminal Attorneys Fort WorthWhat exactly is a “Consensual Encounter” between a police officer and a citizen?  The trend in Texas search and seizure law over the past several years seems to indicate that any time a police officer does not have reasonable suspicion to justify a detention of an individual (or probably cause to arrest), the courts label the unreasonable detention as a “consensual encounter,” thereby justifying the illegal search and sustaining the investigative actions that follow.  The courts reason that the citizen was free to leave at any time during the officer’s questioning so the 4th Amendment is not implicated.

My question has always been” “Exactly what do you think the officer would have done if the person tried to leave during this encounter?” In the case that follows, the Texas Court of Criminal Appeals takes a huge step in the right direction against “consensual encounters.”

Johnson v. State – One night, a resident of an apartment complex called 911 to report a suspicious person- an unidentified black male who was sitting out front of the leasing office watching cars.  In response to her call, a Houston Police officer went to the complex.  Although the officer did not see anyone outside the leasing office, he noticed a vehicle that was backed into a parking space with its lights on.  The officer parked his car in a manner in which the appellant would have had to maneuver around the car to leave and shined his high-beam spotlight in the car.  Believing that appellant could be the suspect, the officer approached the driver side door where he smelled an odor of marijuana.  Despite the fact that the appellant’s clothing did not match the description given by the resident, the officer spoke to the appellant using a ‘loud authoritative voice.’  During the officer’s interaction with the appellant, he smelled an odor of marijuana coming from inside the car.  The officer did not see the marijuana until after he asked appellant to step out of the car.  The officer arrested the appellant and charged him with misdemeanor possession of marijuana.

Appellant filed a motion to suppress asserting that his seizure was made without any reasonable suspicion that he was engaged in any criminal activity and that the acquisition of the evidence was not pursuant to a reasonable investigative detention or pursuant to an arrest warrant.  The trial court denied the motion holding that appellant had been detained and that the officer acted reasonably under the circumstances and did have articulable facts that justified the minimal detention.  The court of appeals affirmed the trial court’s judgment holding that a reasonable person in appellant’s position would have believed that he was free to ignore the officer’s request or terminate the interaction, thus making the initial interaction a consensual encounter rather than a Fourth Amendment seizure.

Police and citizens may engage in three distinct types of interactions: consensual encounters, investigative detentions, and arrests. Consensual police-citizen encounters do not implicate Fourth Amendment protections.  But, when a seizure takes the form of a detention, Fourth Amendment scrutiny is necessary and it must be determined whether the detaining officer had reasonable suspicion that the citizen is, has been, or is about to be engaged in criminal activity.

On review of the denial of appellant’s motion to suppress evidence that led to his marijuana conviction, the Court of Criminal Appeals held that the court of appeals erred in holding that the officer did not detain the appellant.  Under the totality of the circumstances, a reasonable person would not have felt free to leave.  When the officer (1) shined his high-beam spotlight into appellant’s vehicle, (2) parked his police car in such a way as to at least partially block appellant’s vehicle, (3) used a “loud authoritative voice” in speaking with appellant, (4) asked “what’s going on,” and (5) demanded identification, a detention manifested.  The Court of Criminal Appeals reversed and remanded the case to the court of appeals to consider the trial court’s determination that the officer had reasonable suspicion to detain the appellant and to decide whether that detention was valid.

Reliable Enough for Probable Cause

By | Probable Cause

Fort Worth warrantless arrest attorneysWhen a probable-cause affidavit describes a “controlled purchase” that was performed by an individual whose credibility or reliability were unknown, is that (or can it be) sufficient to sustain a probable-cause determination?  The Court of Criminal Appeals said YES in Moreno v. State.

Moreno v. State: After receiving a tip from the Clovis, New Mexico Police Department that Appellant, Dimas Moreno, was distributing narcotics from his home, the Lubbock police department orchestrated a controlled purchase of drugs from Appellant. Officers enlisted the help of a confidential informant (“CI”), who was familiar with cocaine deals, to purchase crack cocaine from Appellant. The CI approached an unknowing participant in an effort to purchase the crack cocaine. The individual told the CI that he would go to Appellant’s house to pick up the crack cocaine. Police observed the individual go to Appellant’s house, enter, and exit a few minutes later. The unknowing participant then drove to the predesignated location and delivered the crack cocaine to the CI.

On the basis of these facts, a magistrate issued a warrant to search Appellant’s residence for crack cocaine and any other related contraband. After executing a warrant, police found the drugs and arrested Appellant. Appellant was subsequently charged with possession with intent to deliver a controlled substance in an amount of four or more but less than 200 grams. Appellant filed a motion to suppress, challenging the sufficiency of the affidavit. He claimed that there could be no probable cause when an affidavit describes a controlled purchase in which an unidentified individual of unknown credibility and reliability purchased the drugs.

The trial court held a hearing and denied Appellant’s motion. Appellant preserved his right to appeal, pled guilty and was sentenced to fifteen years’ confinement. The court of appeals affirmed, concluding that the affidavit was sufficient because probable cause was based upon police observations rather than upon any statements made by the unknowing participant.

To issue a search warrant, a magistrate must first find probable cause that a particular item will be found in a particular location. The magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

In this case, the court of criminal appeals held that the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause. It was reasonable for the magistrate to infer that the unknowing participant obtained the crack cocaine from Appellant’s house based on “common-sense conclusions about human behavior.” While it was possible that the third party obtained the cocaine from another source, Appellant presented no persuasive argument as to why the magistrate’s inference was unreasonable or whether the unknown participant had a motive to mislead the police. Therefore, the judgment of the court of appeals was affirmed.

Search & Seizure Defense Lawyers | Fort Worth, Texas

If you or a loved one were the subject of an unconstitutional and illegal search, seizure, or arrest, please contact us today for a free consultation of your case.

Supreme Court Decision Watch: Conflicting Consent to Search

By | Search & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

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.

A Terry Stop With Guns Drawn, Unlawful Wiretapping, and Other 5th Circuit Fun

By | Search & Seizure

Below are some case summaries from recent 5th Circuit (Federal) opinions.  Enjoy.

United States v. Abdo, 2013 U.S. App. LEXIS 17251 (5th Cir. Tex. Aug. 19, 2013)

After receiving information from employees at a gun store and an army/navy surplus store, police officers believed Appellant planned to detonate a bomb and shoot service members stationed at Fort Hood, Texas.  When the officers encountered Appellant they drew their firearms, separated Appellant from the backpack he was carrying, handcuffed him and then placed him in the back of a police car.  Appellant admitted to the officers that he planned to attack soldiers at Fort Hood.  Appellant was then formally arrested and transported to the jail.

Appellant argued the district court should have suppressed evidence found at the time of his arrest and statements he made to the police.  Appellant claimed his detention at gunpoint and placement in a police car in handcuffs was a full arrest rather than a Terry stop, which was not supported by probable cause. The court disagreed.

Pointing a firearm and handcuffing a suspect does not automatically convert a Terry stop into an arrest.  Here, when the officers encountered Abdo, they knew he had purchased shotgun shells, an extended magazine for a handgun and a large amount of gunpowder in a manner that was not consistent with its normal use.  The officers also knew Appellant purchased an army uniform and asked for the kind of patches used at Fort Hood.

In addition, Appellant was carrying a large, overstuffed backpack on a very hot day and one of the officers had experience with terrorists using similar tactics of concealing explosives in backpacks and obtaining fake uniforms to facilitate an attack.  Under these circumstances, the officers acted reasonably in drawing their firearms and handcuffing Appellant while they effected a valid Terry stop, which was supported by reasonable suspicion. 

United States v. Garza, 2013 U.S. App. LEXIS 17515 (5th Cir. Tex. Aug. 21, 2013)

While on roving patrol, a Border Patrol agent received a radio broadcast to be on the lookout (BOLO) for a suspicious looking older model pickup truck carrying plywood in the bed, parked at a gas station at the corner of FM 650 and Highway 83 near Fronton, Texas.  When the agent arrived at the gas station, he saw a pickup truck matching the BOLO description and got out of his vehicle to talk to the driver, later identified as Appellant.  As the agent approached, Appellant acted nervously, moving fast to replace the gas cap, tensing up and shaking while doing so and then quickly entered the pickup truck. Appellant attempted to drive away, but stopped when the agent activated the lights of his patrol car.

Appellant gave the agent consent to search the pickup truck and the agent found several people concealed underneath the plywood in the back of the truck who admitted they were in the United States unlawfully.  The agent arrested Appellant.

Based on the totality of the circumstances, the court held the agent had reasonable suspicion to stop of Appellant’s truck. First, FM 650 is a well-known smuggling road for narcotics and aliens because it is the only route in an out of Fronton, as this court has noted in the past.  Second, the agent had patrolled the border area regularly for over two and a half years and had investigated tips and made arrests in that same area for narcotics violations and alien smuggling.  Third, the agent encountered Appellant’s truck five miles from the border between the United States and Mexico, which supported the reasonable belief the vehicle had recently crossed the border. Fourth, upon arriving at the gas station, the agent knew Appellant’s vehicle did not belong to a Fronton resident and Appellant’s nervous, erratic behavior and unprovoked flight supported a finding of reasonable suspicion. Finally, based on his experience, the agent knew smugglers often used plywood to conceal contraband in their trucks.

United States v. North, 2013 U.S. App. LEXIS 17808 (5th Cir. Miss. Aug. 26, 2013)

As part of a drug trafficking investigation, federal agents obtained a wiretap order on Appellant’s cell phone from a federal judge in the Southern District of Mississippi.  Information obtained from the interception of Appellant’s cell phone on May 9 and 16, 2009, led to Appellant’s arrest for possession of cocaine. Title III of the Omnibus Crime Control and Safe Streets Act of 1986 authorizes the use of wiretap surveillance in criminal investigations.  Under Title III, a federal judge may enter an order authorizing the interception of cell phone communications within the territorial jurisdiction of the court in which the judge is sitting.  The Fifth Circuit Court of Appeals has held the “interception” includes both the location of a tapped telephone and the original listening post, and that a judge in either jurisdiction has authority under Title III to issue wiretap orders.

Appellant argued the district court in Mississippi lacked territorial jurisdiction to authorize the interception of the cell phone call on May 9, 2009, because when the agents intercepted the call his phone was located in Texas and the government’s listening post was located in Louisiana.  The court agreed.

The district court located in the Southern District of Mississippi lacked the authority to permit interception of cell phone calls made from Texas at a listening post in Louisiana. In addition, the court held suppression of the information obtained from the May 9, 2009, wiretap was warranted. Appellant further argued the agents failed to follow the minimization protocols during interception of the May 16, 2009, phone call between Appellant and a female friend who was not under investigation.  Appellant claimed the agents conducted uninterrupted monitoring of a one-hour telephone conversation that had no connection to the drug smuggling investigation.

The court agreed and suppressed the evidence obtained from the interception of the phone conversation.  The agents were authorized to spot-monitor Appellant’s cell phone conversations for no more than two minutes at a time.  However, the agents were authorized to continue monitoring if the conversation related to the drug smuggling investigation.  The court found the agents did not stop listening when it was made clear the conversation was not criminal in nature and they did not conduct subsequent spot checks by checking on the conversation to determine if it had turned to criminal matters.  Rather, the agents listened to the conversation for several minutes before dropping out for less than one minute at a time before resuming their near continuous listening.  Under these circumstances, the court held it was not objectively reasonable for the agents to listen for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes.