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Warrantless Search Archives | Page 4 of 4 | Fort Worth Criminal Defense, Personal Injury, and Family Law

Jul 28
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Criminal Defense Dog Scent Lineup

Fort Bend County Loses the Dog Scent Lineup Issue Again

By | Dog Scent Lineup

Criminal Defense Dog Scent LineupLast year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a “dog scent lineup” to match a suspect’s body scent to the scent of certain evidence from the crime scene.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in State v. Dominguez, another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect’s scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler’s methodology that the court noted were:

  • He carries around his “blind” non-suspect scent samples (called foil samples) in ziplock bags;
  • His foil samples are old samples, while the scent sample of the suspect is fresh;
  • He does not do negative runs where the sample of the suspect is excluded;
  • He uses multiple dogs during each test rather than allowing the dogs to work alone; and
  • He is mostly self-taught and his methodology is something he created.

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge’s ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler’s “dog scent lineup” evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

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 17
0
Kentucky v. King 2011, Knock and Announce

What’s Behind Door Number 1? | Knock and Announce

By | Drug Crimes

Kentucky v. King 2011, Knock and AnnounceSupreme Court Case Review –  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.

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 10
0
Warrantless Search of Cell Phone

Warrantless Search of Cell Phone Text Messages

By | Warrantless Search

Warrantless Search of Cell Phone | Fort Worth Criminal Defense Attorneys

Warrantless Search of Cell PhoneCan an arresting officer search a person’s text messages as a “search incident to arrest?” The U.S. Court of Appeals for the 5th Circuit said YES in U.S. v. Curtis, but caveats that the search in the case occurred prior to the Supreme Court holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).

United States v. Curtis – In July 2007, officers obtained an arrest warrant for Appellant after he made a false statement on a credit application he submitted to a car dealership. (Seriously?) When the officers arrested Appellant he was driving his vehicle and talking on his cell phone. After he pulled over, Appellant placed the cell phone on the car’s center console. An officer took the phone out of the car and began looking at the text messages on it. Later, while Appellant was being processed at the jail the officer resumed looking at the text messages on the cell phone.

The 5th Circuit held that the search of the cell phone was constitutional since it took place incident to a lawful arrest and it was within Appellant’s reaching distance when the officers arrested him. The court followed U.S. v. Finley, 477 F.3d 250 (5th Cir.), which held that the police could search the contents of an arrestee’s cell phone incident to a valid arrest when it is recovered from the area within an arrestee’s immediate control.

Appellant argued that the officer’s search of the cell phone was unlawful in light of the Supreme Court’s holding in Gant, decided in 2009, which held in part that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of arrest.”

The court refused to apply the rule announced by Gant to a search incident to arrest that occurred before Gant was decided. Additionally, the court stated that even if it had ruled the search of the cell phone was unlawful, it would have refused to suppress the text messages under the good-faith exception to the exclusionary rule. The court noted that the good-faith exception applies to searches that were legal at the time they were conducted, but later determined to be unconstitutional by a subsequent change in the law.

My question is: Why did the officer feel he needed to search Appellant’s text messages? I’m pretty sure the iPhone does not have an app that turns the phone into a dangerous weapon. There should be no reason that the officer needed to conduct such a warrantless search. Luckily, however, this holding is narrow in that it appears that it does not apply to searches conducted after the Supreme Court decision in Gant.

UPDATE: Warrantless searches of cell phones are now unreasonable. 

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.

Feb 15
0
Identity Theft in Texas

Girlfriend Destroys Expectation of Privacy in Identity Theft Case

By | Identity Theft

Identity Theft in TexasAfter being convicted of aiding and abetting mail fraud and aggravated identity theft, Lonnie Oliver Jr., challenged his convictions on appeal, arguing that federal agents conducted an illegal search of the contents of a cardboard box that his girlfriend provided to them and that his statements to police officers were involuntary.

See the full opinion in United States v. Oliver  (5th Circuit, 2011)

Mr. Oliver left an unsecured cardboard box, which contained ample evidence of his identity theft operation, in the dining room of his girlfriend’s apartment. When agents interviewed his girlfriend, she gave them the box, but did not tell them she had already examined its contents.

Does a person have a Reasonable Expectation of Privacy in the contents of a box that was not kept private from his girlfriend?

The court held that the girlfriend’s prior search of the box destroyed Appellant’s reasonable expectation of privacy in it, and rendered the subsequent warrantless police search permissible under the Fourth Amendment. The court stated that the girlfriend’s search made the agents’ warrantless search permissible, regardless of whether the agents knew about it. The court cautioned that his holding was limited to the unique facts of this case and was not intended to expand significantly the scope of the private search doctrine.

Does a waiver of Miranda Right to remain silent need to be in writing?

Appellant also argued that incriminating statements he made to the agents during his custodial interrogation should have been suppressed, claiming that he had not waived his Miranda rights. After agents arrested Appellant, they advised him of his Miranda rights and provided him two forms. Appellant signed the first form acknowledging that he understood his rights, but he refused to sign the second form waiving those rights. Nevertheless, Appellant told the agents that he wished to answer their questions and he confessed to his role in a mail fraud and identity theft scheme.

The Court explained that suspect may waive his Miranda rights if the waiver is made voluntarily, knowingly and intelligently. The mere refusal to sign a written Miranda waiver does not automatically make subsequent statements by a defendant inadmissible. The court held that the circumstances surrounding Appellant’s arrest and interview established that Appellant’s waiver was voluntary, even though he refused to sign the wavier form. Specifically: (1) agents provided Appellant with a copy of the Miranda warning waiver form and read it aloud to him as he followed along, (2) Appellant expressly told the agents that although he would not sign the Miranda waiver form, he would discuss the fraud scheme, (3) Appellant never requested an attorney, (4) Appellant was articulate, coherent and not under the influence of alcohol or drugs, and appeared to understand what was going on, (5) Appellant clearly understood his rights since he signed the first form that acknowledged this, and he had extensive experience with the criminal justice system, and (6) Appellant was not coerced in any way during the interview.