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Look Here: 4th Amendment Musings


Increasingly, police are using the “imminent destruction of evidence” justification for warrantless entry into residences in drug cases.1 At the outset, it is important to remember that in order to rely on this exception, the police first must have probable cause—no PC, no exception.2 If probable cause exists, the State must still show that the destruction of evidence was imminent in the present case.

Specific Instances Required; Generalizations Insufficient

Specific, affirmative acts evidencing imminent destruction in the case at hand are required to support warrantless entry into a residence. Mere generalizations about the way people in possession of contraband behave when encountered by police (“in my training and experience . . .”) are insufficient.3

So for example, it is insufficient if an officer simply testifies that in his experience, persons in possession of drugs often destroy them unless supported by actual, affirmative acts in the present case evidencing imminent destruction.4 Likewise, testimony that in the officer’s subjective experience, persons in possession of drugs tend to react violently when encountered by police is also insufficient, unless there is specific evidence of this in the present case.5 And, that the specific drug at issue is capable of being easily destroyed—cocaine, for example—is not evidence that it faced imminent destruction in the present case without some affirmative act evidencing imminent destruction.6

Absent the sound of a toilet repeatedly flushing, or the garbage disposal running, police often use sounds of human movement they allegedly hear from inside the residence as evidence that contraband is being destroyed. However, sounds of human movement, without more, generally require too far a logical leap to evidence imminent destruction of contraband. For example, the smell of contraband and the sound of movement, shuffling, or even someone running up the stairs after police knock on the door is generally insufficient to establish that the destruction of evidence was imminent.7

Exigencies Are Reserved for Grave Circumstances, Not Inconvenience

As a final note, it is often worthwhile to remind courts that exigencies are reserved for grave circumstances, not convenience.

When exceptions to the warrant requirement for entry into a citizen’s home are discussed, it is abundantly clear that such exceptions are reserved for only the gravest circumstances:

This is not a case where officers, passing by on the street, hear a shot and cry for help and demand entrance in the name of the law. They had been following McDonald and keeping him under surveillance for two months at [his residence] . . . [N]o reason, except inconvenience of the officers and delay in preparing papers and getting them before a magistrate appears for the failure to seek a search warrant.8

The clear import of the McDonald court’s language is that because warrantless entry into the home is, indeed, the “chief evil” against which the Fourth Amendment protects us, exceptions to its protection are not be treated lightly:

[A]bsent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.9

Thus, the seriousness of the criminal conduct at hand is relevant and worthy of consideration in instances where police have entered a home without a warrant or consent. Some level of proportionality is required: Criminal operations which do not “endanger life or limb” or the “peace and good order of the community even if continued for another day or two” generally will not justify warrantless entry.10

Such mala prohibita as mere possession would seldom rise to the level of “grave emergency,” with the possible exception of a violation of Health and Safety Code sections 481.10 (“Use of a Child In the Commission of an Offense”) and 481.141 (“Manufacture/Delivery Causing Death or Serious Bodily Injury.”)


1. See Turrubiate v. State, 399 S.W.3d 147, 151 (Tex.Crim.App. 2005)(for discussion on imminent destruction of evidence as exception to warrant requirement).

2. See, e.g. id.; Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007).

3. Turrubiate v. State, 399 S.W.3d (“a court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent”).

4. Id.; see also Price v. State, 93 S.W.3d 751 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d.)(“the police should have at least some specific facts to the case at hand that would justify their [warrantless entry predicated on imminent destruction of evidence] . . . the police did not see appellant engaged in the act of destroying evidence, nor had they witnessed any specific act suggesting destruction was imminent”).

5. See, e.g. Davila v. State, 441 S.W.3d 751 (Tex.App.—Houston [1st Dist.] 2014, pet. ref’d.)(appellant appeared “nervous and in a hurry” and had “known associates nearby”).

6. Grimaldo v. State, 223 S.W.3d 429 (Tex.App.—Amarillo 2006)(“an officer’s statement that he simply relied on his experience and training to arrive at the conclusion [that evidence was likely to be destroyed] does not fill the void”).

7. See, e.g. Johnson v. United States, 333 U.S. 10 (1948)(holding unlawful entry into residence premised on imminent destruction of evidence when police went to room based on tip about drug use inside, smell of opium emanating from room, delay in answering door, and sound of shuffling inside after police knocked); Laysone v. State, No. 12-14-00050-CR (Tex.App.—Tyler, July 23, 2014)(memorandum opinion)(not designated for publication)(holding smell of marijuana from inside residence, observation of marijuana inside residence, and sound of footsteps running up the stairs after knocking insufficient to justify warrantless entry into residence premised on imminent destruction of evidence); English v. State, 647 S.W.2d 667 (Tex.Crim.App. 1983)(en banc)(holding warrantless entry into home to search for robbery suspect premised on “bumping, banging, or rustling” from inside apartment does not create exigency premised on imminent destruction of evidence).

8. McDonald v. United States, 335 U.S. 451, 455 (1948).

9. Id.

10. Id. at 459–60.

Look Here: 4th Amendment Musings


Search & Seizure: So, What’s Going On?

(Rodriguez v. U.S., 135 S. Ct. 1609, April 21, 2015)

So What’s the Big Deal? Many attorneys in Texas were not impressed by the Rodriguez decision. Most people assumed that the Supreme Court was establishing a rule that when the reason for the traffic detention has been completed then the detention must cease. A prolonged traffic stop was illegal. In federal court, the “de minimis” doctrine had been established. The de minimis rule allowed the officer to continue the completed detention for up to 12–15 minutes, which was considered not to be a great enough violation of the Fourth Amendment to be illegal. The origin of the de minimis rule was Pennsylvania v Mims, 434 US 106, 1977, and was originally based on officer safety.

In Rodriguez, the court reiterated its holding in Cabales, 543 U.S.405, 407 (2005), that a traffic stop prolonged beyond the time needed for the officer to complete his traffic-based inquiries is unlawful. Basically the de minimis rule was abolished.

The rule in Texas had been different. It had already been held that when the purposes of the traffic stop had been effectuated, the detention must cease. Balentine v State, 71 S.W.3d 763, 770 (Tex. Crim. App. 2002); see also Davis v State, 947 S.W.2d 240, 244–245 (Tex. Crim. App. 1997). So what’s the issue about Rodriguez?

The two cases the Supreme Court relied on in Rodriguez, supra, were Cabales, supra, and Johnson, 555 U.S. 323 (2009). What’s important about Rodriguez is the restatement that the authority for the seizure ends “when the task tied to the traffic investigations are or reasonably should have been completed. See Sharp, 470 U.S. 675, 686 (1985). In determining the reasonable duration of the stop, it is appropriate to determine if the police diligently pursued the investigation.

This opens up a whole new analysis that did not exist as long as the de minimis rule applied. Now, not only must the officer terminate the detention when the purposes of the stop have been effectuated. He must also diligently pursue the purposes of the traffic stop and not divert and do things that cause the traffic stop to be extended.

In Rodriguez a canine officer stopped Mr. Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After the officer had attended to everything relating to the stop—including checking the driver’s license of Mr. Rodriguez and his passenger and issuing a warning—he asked Mr. Rodriguez for permission to walk his dog around the vehicle. When Mr. Rodriguez refused, the officer detained him until a second officer arrived. The first officer then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Seven or eight minutes elapsed from the time the officer issued the warning until the dog alerted.

Mr. Rodriguez was indicted on federal drug charges. He moved to suppress the evidence seized from the vehicle on the ground, among others, that the officer prolonged the stop without reasonable suspicion in order to conduct the dog sniff. The magistrate judge recommended denial of the motion. He found no further reasonable suspicion supporting the continued detention, but under the Eighth Circuit precedent, he concluded that prolonging the stop by seven to eight minutes was only a de minimis intrusion in the defendant’s Fourth Amendment rights and for that reason was permissible. The district court then denied the motion to suppress. Mr. Rodriguez entered a conditional plea of guilty and was sentenced to five years in prison. The Eighth Circuit affirmed. The Supreme Court vacated the Eighth Circuit and remanded.

The opinion in Rodriguez indicates that a routine traffic stop is more like a brief detention under Terry v. Ohio, 392 U.S. 1(1968), than an arrest. It’s tolerable duration is determined by the purpose of the detention, which is to address the traffic violation that warranted the stop and attend to related safety concerns. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, but a traffic stop “becomes unlawful if it prolongs the stop beyond the time reasonably required to complete the mission” of issuing a ticket. Cabalas, supra. In concluding that the de minimis intrusion here could be offset by the Government’s interest in stopping the flow of illegal drugs, the Eighth Circuit relied on Mims, supra. The officer’s safety interest in Mims, however, stemmed from the danger to the officer associated with the traffic stop itself. On-scene investigation into other crimes detours from the officer’s traffic control mission and therefore gains no support from Mims, supra. Furthermore, the Government’s argument that an officer who completes all related traffic tasks expeditiously should get extra time to pursue an unrelated criminal investigation was unpersuasive. The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.” The determination adopted by the district court that detention for the dog sniff was not independently supported by individualized suspicion was not reviewed by the Eighth Circuit. That question therefore remains open and the case was remanded.

Therefore, the cases after Rodriguez have fallen into two categories. The first category has been to continue the old reasonable suspicion investigation. Does reasonable suspicion to continue the detention exist independent of the traffic violation? The other area of concern is whether or not the officer has diligently pursued the investigation of the traffic stop or whether he has delayed, so that he may divert into other areas which prolong the detention.

The law is reasonably well settled, although extremely confused, on what constitutes reasonable suspicion. The Fourth Amendment limits the permissible length of a traffic stop. The tolerable duration of police inquiries in the traffic stop context is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns. This allows the officer to examine the driver’s license and vehicle registration and ask about the purposes and itinerary of the driver’s trip. These matters unrelated to the justification for the traffic stop do not convert the encounter into an unlawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

But, once the tasks tied to the traffic infraction are, or reasonably should be, completed, the authority for the seizure ends unless the Government can show an exception to the Fourth Amendment that allows the stop to continue. An often invoked exception derives from Terry v. Ohio, and it permits prolonging the traffic stop if reasonable suspicion of additional criminal activity emerges during the investigation of the traffic violation. An officer may conduct certain unrelated checks during an otherwise lawful traffic stop, but may not do so in a way that prolongs the stop, absent the reasonable suspicion to justify detaining an individual. Almost anything is available to the officer that does not prolong the stop. In addition to driver’s license, insurance papers, and registrations, the officer may run a computer check on those documents and also run computer checks for warrants on the driver or the passenger. During the stop, the officer may also ask about purposes of the trip and may also ask about unrelated matters as long as the questioning does not prolong the stop. This includes asking different occupants of the vehicle the same questions to see if their stories diverge.

Of course, observations are not excluded. These observations may include but are not limited to nervousness, criminal history, use of another’s vehicle, traveling through known drug trafficking corridors, altered gas tanks, altered tires, or providing false or implausible information.

For Fourth Amendment purposes, reasonable suspicion exists if the police officer can point to specific articulable facts indicating that criminal activity is occurring or is about to occur. The level of suspicion of wrongdoing is obviously less than necessary for probable cause. Suspicion need not be related to a particular crime; it is sufficient to have reasonable suspicion that criminal activity may be afoot. The appellate courts review the district court’s reasonable suspicion finding de novo, looking at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. (What is or is not reasonable suspicion based on specific examples is contained later in this article.)

As it relates to the Fifth Circuit, the cases go both ways. In U.S. v. Davis, 620 Fed. Appx. 295, U.S. App. Lexis 14745 (2015), the court found that nervousness, lack of criminal history, presence in a known drug trafficking corridor, having a vicious dog, and conflicting statements created reasonable suspicion independent of the traffic stop. In U.S. v. Madrigal, 2015 U.S. App. Lexus 16755, the Fifth Circuit found that the unreasonable travel itinerary, vehicle description, criminal history, and round trip on the same day were insufficient to establish reasonable suspicion to continue the detention. (Go figure, makes no sense!)

What are the courts across the State of Texas doing? In Texas v. Tucker, 13-15-00491-CR (13th Court of Appeals, May 5, 2016), the officer did surveillance on a known drug house. He watched Tucker arrive at the drug house, stay approximately two minutes, and then depart. The officer thought he had purchased narcotics, so he followed him and detained him for fail to signal within 100 feet of a turn. Tucker did not pull over immediately, but did not evade. The officer then testified that Tucker was nervous and his hands were shaking. Tucker informed the officer that he had been asked to pick up somebody from the location and take him home. The officer knew where the passenger lived and observed that Tucker did not take a direct route to drop him off. The officer believed that he had reasonable suspicion that Tucker was in possession of a controlled substance, and he asked for consent to search. Consent was denied and the traffic stop continued for approximately 15 minutes to conduct a free air sniff. The canine alerted. A subsequent search of the vehicle revealed drugs. The Court found that the initial traffic stop was lawful; however, the officer’s failure to diligently pursue the traffic investigation, and instead shifting directly to a narcotics investigation, violated Rodriguez. The court found that the information in the officer’s possession did not establish reasonable suspicion, and that the extension of the traffic stop was unlawful.

In Richardson v. Texas, No. 10-14-00217-CR (July 9, 2015)(2015 Tex. App. Lexis 7066), an officer observed Richardson stop at a known drug location and spend a few minutes near a prostitute. He believed a drug transaction had taken place. However, he did not see a drug transaction. Richardson left and drove home. Richardson was detained once he pulled into his own driveway. He was told he was stopped for failing to stop at a designated point of the intersection. Two minutes into the detention the officer called in the driver’s license information and there were no outstanding warrants. The officer asked Richardson if he had any prior drug charges and he replied in the negative. Officers then removed Richardson from his vehicle and placed him on his front porch. Shortly thereafter, he was told he was not going to be issued a citation for the traffic violation. The investigation then continued for some 15 additional minutes so that a dog sniff could be conducted. The canine alerted on the vehicle and subsequently drugs were found. The court held that the traffic investigation was fully resolved when he was told he would not be issued a citation or warning for the traffic violation. Richardson should have been allowed to leave at that point. The continued detention was without reasonable suspicion and unlawful under Rodriguez.

The most important part about Rodriguez is the affirmations of the law contained in the Johnson and Cabales cases. Not only must there be separate reasonable suspicion to continue the detention, but law enforcement must also diligently pursue the investigation of the traffic violation and not delay while pursuing unrelated issues in an attempt to try and create reasonable suspicion for another offense.

Look Here: 4th Amendment Musings – By Sarah Roland


In a statewide act of solidarity and reverence, we all read the Declaration of Independence this Independence Day. Indeed, it is the very words of the Declaration of Independence that tell us why the Fourth Amendment was so important to our founders and remains of utmost importance today:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people.

The defiance in those words is resounding. The people were being harassed by use of the general warrant, which was basically unlimited in scope and duration. In the current time, when fear seems to be dictating and allowing for so much leeway in our constitutional foundations, we need to remember these words. It was Benjamin Franklin who cautioned that “[t]hose who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”

Sadly, the question of the Fourth Amendment’s continued vitality continues to be of real concern, however, given the constant erosion of the Exclusionary Rule. The Exclusionary Rule exists to deter unconstitutional police misconduct. However, the USSC has noted that “the significant costs of the rule have led us to deem it applicable only . . . where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). “Suppression of evidence . . . has always been our last resort, not our first impulse.” Ibid.

So was true on June 26, 2016, when the USSC handed down its decision in Utah v. Strieff, 579 U.S. ___. Based on an anonymous tip, Salt Lake City Police had been watching a suspected drug house. The police suspected drug activity based on visitors coming, staying for a few minutes, then leaving. One such visitor was Mr. Strieff. Police saw Strieff leaving the residence on foot. Police followed him to a nearby gas station, where he was stopped and detained in the parking lot. During the stop, the police requested Strieff’s identification, ran him, and learned that he had an outstanding warrant for a traffic violation, whereupon he was immediately arrested and searched incident to arrest. A baggie of methamphetamine and paraphernalia was discovered during the search. Strieff filed a motion to suppress the unlawful investigatory stop. At the suppression hearing the State conceded that the police did not have reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.

With Justice Thomas writing for the 5–3 majority, the USSC held that the evidence discovered on Strieff was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. In an attenuation analysis, three factors are considered: 1) temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. The third factor is of particular significance. Brown v. Illinois, 422 U.S. 590 (1975). In balancing the factors in this case, the USSC majority weighs the first in favor of Strieff, the second in favor of the State, and then seems to take special care to note that the officer “was at most negligent,” rather than purposeful, in finding the third factor in favor of the State. Seemingly, the majority bends over backwards to weigh the factors in favor of the State.

The women of the USSC—Sotomayor, Kagan, and Ginsburg—stood unified and strong in defense of the Fourth Amendment. Justice Sotomayor says it best in her dissent:

Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.

It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.

[T]he Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better. Even officers prone to negligence can learn from courts that exclude illegally obtained evidence. Indeed, they are perhaps the most in need of the education, whether by the judge’s opinion, the prosecutor’s future guidance, or an updated manual on criminal procedure. If the officers are in doubt about what the law requires, exclusion gives them an “incentive to err on the side of constitutional behavior” (internal citations omitted).

The powerful conclusion of Sotomayor’s dissent, where she writes only for herself and drawing on her professional experiences, warns

We must not pretend that the countless people who are routinely targeted by police are isolated. They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but (internal citations omitted).

Kagan’s application of the attenuation doctrine’s factors in her dissent is spot on (and she uses a baseball metaphor throughout to analyze the attenuation factors, which makes for even better reading). These are dissents worth reading.

The women of the court acknowledge Streiff’s situation for exactly what it was: targeted police misconduct with the aim of finding evidence. The ends do not justify the means. What happened to Mr. Streiff is exactly the type of situation the Fourth Amendment was designed to prevent. It’s more than a shame the five-justice majority didn’t see it that way.

The State will certainly rely on the Streiff opinion, but don’t stop filing and litigating suppression issues like this. The dissent is strong, and the majority opinion indicates a different result may have been reached had an analysis of the Brown attenuation factors gone another way.

This 4th Amendment column will be a new and standing column in The Voice in which search and seizure issues will be addressed by a different author every month. Please consider submitting your article (750–1,000 words) for publication.