26th Annual Rusty Duncan
Advanced Criminal Law Course
June 13th-15th, 2013
Henry B. Gonzalez Convention Center
San Antonio, Texas
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Topic:
Warrantless Searches & 4th Amendment
Speaker: David Guinn Contact information
1805 13th St
Houston, TX 77002-2911
806.771.0700 phone
806.763.8199 fax
[email protected] email
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The Eroding 4th Amendment?TCDLA Rusty Duncan Seminar
San Antonio, TX
2013
David Guinn, Jr.
Hurley & Guinn, Lubbock, Texas
The Spark
• Of the AMERICAN REVOLUTION
see U.S. v. Rabinowicz, 339 U.S. 56, 69 (1950) Frankfurter J. dissenting ** became law in Chimel v. California, 1969.
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More Pressure?
• “There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.”
Terry v. Ohio
• 392 U.S. 1, 39 (1968) (Douglas, dissenting)
• He warned us about this. Persistent pressure = Erosion. The more that you let go, the more you lose.
Read the Directions
• “The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.
• Mapp v. Ohio, 367 U.S. 643, 659 (1961).
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Erosional Breaking Points
• Warrants preferred & protected
• Warrantless attacks most fruitful for accused but Gov’t seeks more exceptions
• Greater protection of home & body
Warrants Preferred, but . . .
Florida v. Jardines, 133 S.Ct. 1409 (March 26, 2013).
Property + privacy interests, together
Want Blood?
• Missouri v. McNeely, 133 S.Ct. 832 (2013)
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Warrant Affidavit Problems
WHAT is being searched for?
WHERE? WHEN?
WHY?—says who? Reliable + Credible or more of one than the other
Deficient Warrants
• Huddleston v. State, 387 S.W.3d 33 (Tex. App.—Texarkana 2013).
• Duarte v. State, 389 S.W.3d 349 (Tex. Crim. App. 2012).
Conclusory Statements
• Barraza v. State, 900 S.W. 2d 840 (Tex. App.—Corpus Christi 1995, no pet.)
• Lowery v. State, 843 S.W.2d 136 (Tex. App.—Dallas 1992, pet. ref’d).
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Timely Executed
• CCP Art. 18.06(a) & 18.07
• State v. Rico, 241 S.W.3d 648 (Tex. App.—Amarillo, 2007)
ISSUED 8‐19‐05 @ 2:10 p.m.
EXECUTED 8‐24‐05 @ 9:10 p.m.
RULE‐S/H/Been executed by midnight of the 4th
day (8‐23‐05@ 12:00) clock expired.
Warrant Bystanders
• Bailey v. United States, Feb. 2013• Lippert v. State, 664 S.W.2d 712 (Tex. Crim. App. 1984)
• Brooks v. State, 1997 WL 746221 (Tex. App.—Amarillo) 1997.
Anonymous Tips
Florida v. J.L., 529 U.S. 266 (2000).
State v. Wilson, 337 S.W.3d 289 (Tex. App.—Texarkana) 2011.
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STOPS
• Delaware v. Prouse, 440 U.S. 648 (1979).
• Whren v. United States, 517 U.S. 806 (1996).
Traffic Offense
• United States v. Miller, 146 F.3d 274 (5th Cir., 1998). (blinker on but no turn)
• NEW CASE– Abney v. State, Tex. Crim. App. March 27, 2013 (driving in left hand lane).
Tail Light Out?
• U.S. v. Lopez‐Valdez, 178 F.3d 282 (5th Cir. 2005) citing
• State v. Vicknair, 751 S.W.2d 180 (Tex. Crim. App. 1986).
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Arizona v. Gant
• 129 S.Ct. 1710
• FACTS—Gant stopped for driving w/ a suspended license. Arrested, cuffed & put in back seat of patrol car.
• Car searched‐ gun in car & cocaine found in pocket of jacket lying in backseat of car.
Arizona v. Gant (cont’d)
• D charged w/ POCS & Drug Para(baggie)
• State—search incident to arrest, Belton should apply even after arrestee lost access to vehicle (Broadening of Belton)
Arizona v. Gant (cont’d)
• Search invalid because there was no evidence of:
1. Rzbl possibility of Gant getting access to car or
2. Rzn to believe evidence relevant to crime of arrest (license susp) may be found in car.
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Community Caretaking
• Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002).
• 4 factors for evaluation
• Great Example—Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999)
Community Caretaking
• 1– nature & level of distress exhibited by person
• 2—location of individual
• 3‐‐ alone or access to others (than officer)
• 4—to what extent person, w/o assistance = Dngr to self or others
CONSENT 2 Part Test
U.S. v. Chavez‐Villareal, 3 F.3d 124 (5th
Cir. 1993):
• 1 C freely and voluntarily given ?
• 2. C an “independent act of free will”.
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VOLUNTARY? U.S. v. Jones, 243 Fed 3d 234, 242.
• 1. voluntariness of custodial status
• 2. presence of coercive police procedures
• 3. extent and level of D’s cooperation
• 4. D’s awareness of rt. to refuse consent
• 5. D’s education and intelligence
• 6. D’s belief that no incriminating evidence would be found.
Independent Act of Free Will (Jones at 243).?
• 1. temporal proximity of illegal conduct and consent
• 2.presence of intervening circumstances
• 3. purpose and flagrancy of misconduct by police
CELL PHONE SEARCHES
State v. Granville, 373 S.W.3d 218 (Tex. App.—Amarillo, 2012).
State v. Cisneros, 290 S.W.3d 457 (Tex. App.—Houston[14th Dist]. 2010.
State v. Black, 358 S.W. 3d 823 (Tex. App.—Ft. Worth, 2012).
State v. Deaver, 314 S.W.3d 481 (Tex. App.—Ft. Worth, 2010).
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Protective Sweep
• ONLY IF
• (1) based upon specific and articulable facts that support an objectively reasonable belief
THAT a
• [2] PERSON in THAT AREA poses DANGER to cop or others
Protective Sweep
• LIMITATION
• Must stay within appropriate scope and last only as long as necessary to dispel the rzbl suspicion of danger (of presence of another person). Reasor v. State, 12 S.W.3d 813
EXIGENT CIRCUMSTANCES
• 1. Is only an exception to the requirement that police get a warrant.
• 2. Probable cause to search is always required.
• PC + Exigent Circumstances to justify the warrantless search.
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EXIGENT CIRCUMSTANCES
• Situations usually include factors pointing to some danger to to the officers or victims, an increased likelihood of apprehending a suspect or possible destruction of evidence.
• Evaluate the 5 factors
Exigent Circumstances (Factors)
• 1‐ degree of urgency involved and AMOUNT OF TIME TO GET A WARRANT.
• 2‐ rzbl belief contraband IS about to be removed
• 3‐ possibility of DANGER to police guarding the site
Exigent Circumstances Factors
• 4‐ information indicating that possessors of contraband are aware police are on their trail.
• 5‐ the ready destructibility of the contraband and knowledge that efforts to dispose of narcotics and to escape are characteristic behavior or persons engaged in drug trafficking
• McNAIRY V.STATE, 835 S.W.2d 101, 102
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BAD NEIGHBORHOOD?
• Davis v. State, 61 S.W. 3d 94 (Tex. App.—Amarillo 2001). (East Lubbock Shakedown)
• Johnson v. State, 146 S.W.3d 719 (Tex. App.—Texarkana 2004).
Davis v. State
Group of people gathered in backyard of “high crime neighborhood” approached by officers.
• D ‘acts nervous’. Cops knew him from prior domestic calls, asked for identification anyway and conducted a Terry Frisk = crack pipe=PC to arrest, then subsequent to arrest, found Cocaine.
• Terry= based on belief of armed & dangerous.
Most Frequent Fumble
• Whren + Terry+ Minnesota v. Dickerson + Consent + oral statements/unrecorded or unmirandized.
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4th Amendment Matters
• “It is safe to say that the safeguards of liberty were forged in contraversies of people who were not very nice.”
• Not designed to protect the guilty but innocent and force the paternal notion of honest government being more important than any one crime or criminal.”
Frankfurter & Jackson
• United States v. Rabinowicz, 339 U.S. 56, 69 dissent (1950).
Policy‐Direction
• “Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
• Terry v. Ohio (Black, dissenting).
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Edward Abbey
• A patriot must always be ready to defend his country against his government.
L I B E R T Y
• The freedom of unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose is to oppress: the piranha can be as deadly as the shark.
• U.S. v. $124, 570 873 F.2d 1240 (9th Cir. 1989).