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Search and Seizure Update Border Patrol

5th Circuit Search and Seizure Update

By | Search & Seizure

Here are a couple of recent cases out of the Fifth Circuit regarding the 4th Amendment:

Search and Seizure Update Border PatrolUnited States v. Rico-Soto, 2012 U.S. App. LEXIS 16002 (August 2, 2012)

A Border Patrol Agent conducted a traffic stop on appellant’s van and eventually arrested him for harboring illegal aliens.  The court held the agent did not violate the Fourth Amendment’s prohibition against unreasonable search and seizure because the stop was supported by reasonable suspicion.

First, the van was traveling on Interstate 10, a major corridor for alien smuggling, and the agent had pulled over vans transporting illegal aliens on this route multiple times.  Second, various characteristics of the van and its passengers added to the agent’s suspicions.  The van was a fifteen-passenger model of the kind often used in transporting illegal aliens.  There was a company name stenciled on the side of the van, but it was registered to a woman and not the transportation company.  The agent knew that vans used to transport illegal aliens were often registered to individual women rather than to a transportation company.  Third, the agent noticed that the passengers were seated in separate rows rather than clustered together as people normally would sit.  Finally, the agent had specific information from his agency that this particular transportation company had become active in transporting illegal aliens.  The agent’s 19 1⁄2 years of experience allowed him to recognize suspicious circumstances that might not be recognized by others and by themselves might not arouse suspicion, but when examined together, established reasonable suspicion to support the traffic stop.

United States v. Mubdi, 2012 U.S. App. LEXIS 16708, August 10, 2012 

Two police officers stopped appellant after they both visually estimated that he was speeding and that he was following one of the officer’s patrol cars too closely.  One of the officers issued appellant a warning ticket and then had him step out of his car while the other officer walked his drug-detection dog around it.  After the dog alerted to the presence of drugs, the officers searched appellant’s car and found cocaine and two loaded firearms.

The court agreed with the district court, which held that the officers had probable cause to stop appellant for speeding because they were trained in estimating vehicle speed and that their testimony regarding appellant’s rate of speed was credible.  The court further held that even if the officers were mistaken in believing that appellant was violating the law by following the officer’s patrol vehicle too closely, it was a reasonable mistake, which did not affect the officers’ probable cause to stop appellant for speeding.

The court held that after the officers issued appellant the warning ticket, they had reasonable suspicion to detain him for further investigation.  First, appellant took an excessive amount of time to pull over and he was extremely nervous when talking to the officers.  Second, during the stop, he kept his foot on the car’s brake pedal instead of shifting the transmission into park.  Third, he could not provide details as to his destination or the family member he was going to visit.  Fourth, he lied to the officer about who had rented the car; he was not an authorized driver of the car and the rental car was being driven out-of-state, which was prohibited by the rental contract.  All of these circumstances supported the officers’ decision to extend the duration of the initial 3 traffic stop to conduct the open-air canine sniff, which eventually alerted the officers to the presence of contraband in appellant’s car.

Searching for Evidence or Community Caretaking?

By | Community Caretaking

Handgun SearchUnited States v. McKinnon, 2012 U.S. App. LEXIS 7806, May 8, 2012

An officer stopped the car Appellant was driving because it had an expired registration sticker.  The officer arrested Appellant after he could not produce a valid driver’s license.  Based on the Houston Police Department’s (HPD) towing policy, the officer ordered the car to be towed.  During the “inventory search,” the officer found a handgun under the driver’s seat.  At trial, Appellant moved to suppress the handgun as being the fruit on an unlawful search in violation of the Fourth Amendment, arguing that:

[the officer’s] inventory search violated his Fourth Amendment rights because (1) the inventory search was merely a pretext for searching for evidence related to the burglaries that had recently taken place in the neighborhood where McKinnon was stopped; and (2) the inventory search was conducted pursuant to a policy that provided HPD officers with impermissible discretion in deciding when to tow a vehicle.

The trial court denied the motion.

The Supreme Court has recognized that the police may seize vehicles without a warrant in furtherance of their “community caretaking” function.  This usually occurs when officers impound damaged or disabled vehicles or vehicles that violate parking ordinances or impede the flow of traffic.  As long as an officer’s decision to impound a vehicle for community caretaking purposes is reasonable, it will not violate the Fourth Amendment.

Here, the court held that the officer’s decision to have the car towed was reasonable under the Fourth Amendment.  It was undisputed that the neighborhood in which the stop occurred had experienced a series of burglaries.  Although these were house burglaries, there was nothing to suggest that the vehicle would not have been stolen or vandalized if left parked and locked at the scene.  By impounding the car, the officer ensured that it was not left on a public street where it could have become a nuisance or where it could have been stolen or damaged.

In addition, while one of the passengers possessed a valid driver’s license, the car’s registration sticker was expired, so it could not have been lawfully driven away from the scene.  Finally, the HPD tow policy provides for the towing of vehicles when the owner is not able to designate a tow operator to remove the vehicle and no other authorized person is present.  The registered owner of the vehicle was not present to designate a tow operator and there was nothing to suggest that she had authorized either of the two passengers, who were present, to operate her car.

The Court further held that HPD’s inventory search policy was constitutional.  By its clear terms, the policy is consistent with preserving the property of the vehicle’s owner while ensuring that the police protect themselves against claims or disputes over lost or stolen property and protecting the police from danger.

Community caretaking…Hmmm.  Seems like alot of things could fit under that title.  I suppose that is the point.

Fort Worth Weapon Charges Defense Lawyers

5th Circuit Opens the Barn Door on 4th Amendment Searches

By | Theft

Fort Worth Weapon Charges Defense LawyersBelow is a case update from the 5th Circuit (Federal)

U.S. v. Cooke, 5th Circuit, March 13, 2012

While appellant was in jail, federal agents approached him and asked for consent to search his house.  He refused.  A week later, while he was still in jail, federal agents went to his house to conduct a knock-and-talk interview.  Appellant’s house was a windowless structure that had two large sliding exterior barn doors.  Behind the barn doors was a large area with a dirt floor and a paved sidewalk path that led to a stoop and another set of doors.  Behind these interior doors were the living quarters where appellant, his wife and his mother lived.  When the agents approached the house, they noticed that one of the exterior barn doors was damaged, allowing them access to walk directly up to the interior doors.  Believing that knocking on the barn door would be futile, the agents walked through the open barn door and knocked on the interior set of doors.  Appellant’s mother answered the door and granted the agents consent to enter the house.  Once inside the house, the agents saw a shotgun shell and gun safe in plain view.  Based on these observations, the agents obtained a search warrant and found illegal firearms, ammunition and a bulletproof vest in appellant’s house.

Appellant argued that the agents unlawfully entered the curtilage of his house when they crossed the threshold of the barn door without a warrant or consent.  The court held that the area inside the barn doors, but outside the interior doors was not part of the curtilage, so the agents did not violate appellant’s Fourth Amendment rights by entering the area without consent or a warrant in order to knock on the interior doors.  First, the area had a dirt floor and a paved sidewalk that led to the interior doors.  Second, the contents of the area included non-operating washing machines and dryers, ladders, a grill and other items indicating that the space was used for storage.  Finally, the barn door was open wide enough such that the items stored there were exposed to the elements, the public could see into the area from the street, and anyone would reasonably think that they would have to enter and knock on the interior doors when visiting.

Appellant also argued that under Georgia v. Randolph the warrantless search was invalid because his mother’s consent to the agents’ entry into the house was trumped by his previous refusal to consent.  The court disagreed, stating that Randolph only applied to co-tenants who were physically present and immediately objected to the other co-tenant’s consent.  Here, appellant was not a present and objecting co tenant, but rather was miles away from his home and in jail when he objected to the search.

The Seventh and Eighth Circuits agree and allow searches under similar circumstances; however, the Ninth Circuit does not.

Fort Worth Federal Defense Lawyers

Fifth Circuit Federal Court Update

By | Confession

Fort Worth Federal Defense LawyersBelow are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

United States v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.

United States v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

United States v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.

GPS Tracking Device Texas

Supreme Court Strikes Down GPS Tracking Device | US v. Jones (2012)

By | Search & Seizure

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

GPS Tracking Device TexasMuch like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.
     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it’s a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here’s what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven’t had the time yet to fully digest the opinion, so I’ll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C’Mon.  When you cite U.S. v. Jones, people are going to thing you’re making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.

Search of cell phones

Limits of the 4th Amendment in an iPhone Culture

By | Drug Crimes

Does the 4th Amendment apply to a Cell Phone Search?

Search of cell phonesBoy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person’s cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

5th Circuit Terry Stop

Time’s Up! Your Terry Stop is Over. Please Return to Your Squad Car.

By | Uncategorized

5th Circuit Terry StopThe Fifth Circuit Court of Appeals (Federal) issued an opinion on September 27, 2011 in United States v. Macias, addressing an unconstitutional search and seizure by a Trooper in Pecos County, Texas.  On November 22, 2009, Trooper Juan Barragan stopped Robert Macias, Jr. for failure to wear his seatbelt.  Upon stopping the defendant, Trooper Barragan started asking him questions.  His initial questions dealt with common issues such as the defendant’s purpose for traveling and the defendant’s lack of insurance.  As time went on Trooper Barragan began asking more and more questions unrelated to the reasons he stopped the defendant in the first place.  After his initial questions, the trooper asked the defendant about his employment and the specific reason he was traveling to see a doctor.  The trooper also repeated questions that the defendant had already been asked and had answered.  The initial exchange between the two took approximately two minutes.

After the initial exchange, the trooper asked the defendant to come back to his patrol car with him.  The trooper then began to ask the defendant another series of questions.  Trooper Barragan asked if the defendant had his “own little company” and if he had ever “been in trouble before.” This second series of questions lasted approximately one minute.  The trooper then went back to the defendant’s vehicle (it was actually he defendant’s sister’s vehicle) and asked the defendant’s passenger a series of questions regarding her relationship with the defendant and the purpose of their trip.  Two more minutes elapsed during this series of questions.  The trooper then went back to the defendant and asked him more questions at which point he elicited from the defendant that he had been previously imprisoned for an attempted murder conviction.  The trooper then told the defendant that he was going to go back to his patrol vehicle and write him a citation for failure to wear his seatbelt.  Eleven minutes elapsed from the time that the defendant had been pulled over to the time that he received the citation.

Ten minutes after returning to his patrol car, the trooper returned to the defendant and gave him the citation.  The defendant signed the citations.  Then, just as the trooper was about to leave, he asked the defendant for consent to search his vehicle.  The defendant protested that there was nothing in the vehicle, but he ultimately gave consent to search the truck after his protestations were met by the trooper noting that the defendant has a “shady” background.  Seventeen minutes after he began the search of the truck, and forty-seven minutes after initiating the stop, Trooper Barragan found an unloaded firearm and ammunition in a closed bag belonging to the defendant.

A grand jury indicted Macias for being a felon in possession of a firearm.  Macias moved to suppress the firearm as fruits of an unconstitutional detention.  The district court denied Macias’s motion to suppress and Macias entered a conditional plea of guilty with the option to appeal the district court’s denial.

The Fifth Circuit analyzed the legality of the stop based on the traditional Terry v. Ohio analysis.  392 U.S. 1 (1968).  The Court first looked to whether the Terry stop of the vehicle was justified at its inception and then whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.  Macias conceded that the stop was valid, but that the Trooper exceeded the scope of the stop when he asked questions unrelated to the purpose and itinerary of the trip.  Macias argued that these questions impermissibly extended the duration of the stop without developing reasonable suspicion of additional criminal activity.

The Court cited various cases including United States v. Pack, 612 F.3d 341 (5th Cir.), which held that an officer may ask questions on subjects unrelated to the circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop.  Macias’s argument was that the Trooper’s actions after the stop unconstitutionally extended the duration of that stop.  Macias specifically noted that the trooper ran computer checks, engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose of the itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. The Fifth Circuit agreed.

The Fifth Circuit noted that the only evidence that the trooper could point to that might lead to reasonable suspicion of additional criminal activity was Macias’s extreme nervousness.  It held that extreme nervousness in and of itself was not sufficient to support the extended detention.

The Fifth Circuit ultimately concluded that the search of the truck violated the Fourth Amendment (Terry Stop prohibitions) and that all evidence resulting from that search should have been suppressed.  Macias’s judgment of conviction was reversed and vacated and the case was remanded for entry of judgment of acquittal.

The case contains a lot of applicable case law (a horn book in itself) for attorney’s practicing in the Fifth Circuit in regards to Fourth Amendment searches and seizures.

Warrantless GPS search attorneys Fort Worth

The Evils of Technology | GPS Search

By | Warrantless Search

Warrantless GPS search attorneys Fort WorthI love technology – from tablet computers to smartphones to flat-screen televisions.  If it’s shiny and new and guaranteed to make me the envy of my friends and family, I’ll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we’ve lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother’s truck to track its movements.  Hernandez was arrested while driving his brother’s truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother’s vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents’ use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80’s and 90’s.  Accordingly, the Court upheld the trial court’s denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

Fort DWI Blood Draw Lawyers

CCA Upholds DWI Search Warrant, Overturns Lower Courts

By | Search & Seizure

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jed Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a DWI search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the DWI search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

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).