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Look Here: 4th Amendment Musings

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The plain view doctrine is an established—but sometimes misunderstood principle—which provides that police officers who are lawfully engaged in an activity in a particular place may immediately seize suspicious property without a warrant if the officers perceive the property during the scope of their lawful activity and if the incriminating character of the property is “immediately apparent.”1 The doctrine is not an exception to the requirement that officers must have legal authority to be present in or to conduct a search of a place.2 Rather, it is an extension of officers’ authority to conduct a seizure of property discovered while conducting an otherwise lawful activity.3

The doctrine has its origins in the general rule that incriminating objects found in a public place may be seized without a warrant.4 Owners of property located in a public place have no expectation of privacy associated with such property. While an owner of property located on private premises does have an expectation of privacy, that expectation dissolves once a police officer lawfully conducting an activity on the premises has observed the property, and the owner’s only remaining interests are those of possession and ownership.5 Under these circumstances, the courts have found that requiring police to obtain a warrant for such property would constitute a “needless inconvenience,” and have therefore created the plain view doctrine to allow for the immediate, warrantless seizure of items lawfully observed.6

As the test has evolved, there have been some judicial disputes about what is required for the plain view doctrine to be properly invoked, but those disputes were settled definitively by the Supreme Court in 1990 in Horton v. California.7 That case held that for the plain view doctrine to apply, three conditions must be satisfied. First, an officer must be lawfully present at the place where the seized object can be plainly viewed. Second, the officer must have a lawful right of access to the object. Finally, the incriminating character of the object must be “immediately apparent” to the officer at the time the object is perceived.

Texas courts generally follow the Federal rules in application of the plain view doctrine, and have specifically rejected any greater protections under the Texas Constitution than those provided by the Fourth Amendment.8 The first prong of the Horton test simply inquires whether the officers had a right to have access to the premises where the incriminating evidence is found. Thus, the initial entry by officers onto private premises must be lawful under the Fourth Amendment, either pursuant to a lawfully issued warrant, some exception to the warrant requirement, or under the same rules as applicable to the general public.9 The second prong of Horton is an outgrowth of the first, and serves as a limitation upon officers converting a search pursuant to a warrant founded in some specificity into a general warrant.10 It simply requires, in addition to being lawfully present on the premises, that officers must not exceed the scope of their lawful activities by searching containers, furniture, closets, etc., to which their lawful search authority does not extend.11,12 The final prong of the Horton test requiring that the incriminating nature of the evidence be “immediately apparent” to officers has been described as a requirement that police must have probable cause to associate the item with criminal activity at the time of the seizure (as opposed to actual, firm knowledge of illegality).13 It is worth noting that the doctrine is not limited to the sense of sight; officers may use any of their senses, including feel, in satisfying the Horton test.14

In application, the initial question that should be asked when reviewing evidence ostensibly seized under the plain view doctrine is “what authority did the officers have for being on the premises?” If officers are present pursuant to a valid warrant—either search or arrest—then the Horton test is satisfied. If not, then some validly invoked exception to the warrant requirement must be identified in order for a plain view seizure to be justified: Exigent circumstances, the “automobile exception,” the community caretaking function, and consent to the entry are all examples of potential valid warrant exceptions that will support a plain view seizure. With either a warrant or a valid exception, it is important to note any limitations that would limit an officer’s access to certain areas of a given premises. For instance, consent to admit officers into a living area for an investigative conversation may not extend to a general consent to peruse the master bath suite of a residence.

Assuming that officers are lawfully present, the question becomes whether the officers had lawful access to view the seized item.15 If an item is in open view in a place where officers have authority to be, then the plain view doctrine undoubtedly applies. But officers may find evidence in plain view only as a result of opening cupboards, cabinets, drawers, and other containers. For these situations, the question focuses on whether officers properly exercised authority to access these areas. If officers are executing an arrest warrant at a defendant’s home, for example, they are justified in checking areas where a person may be concealed, but would likely exceed the scope of their authority (i.e., would have no right of access) by checking the sock drawer.16

The final question turns to a probable cause determination based on the state of knowledge of the officers at the time of the seizure. “Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution [to believe] that certain items may be contraband.”17 Officers may combine their training and experience with their observations to draw inferences as to whether an item is likely associated with criminal conduct.18

To reiterate, the plain view doctrine is not, in and of itself, an exception to the warrant requirement regarding police conduct of searches; rather, it provides the authority for officers to make warrantless seizures of evidence they lawfully have independent access to and which they observe in places they have independent authority to be. Given the nature of the doctrine as “piggybacking” on other Fourth Amendment law, application of the plain view doctrine can be nuanced and will almost certainly be fact-oriented on a case-by-case basis.

When analyzing a claimed plain view seizure, ask:

1. Was the officer lawfully present at the place where the object could be plainly viewed?
2. Did the officer have the lawful right of access to the object?
3. Was the incriminating character of the object “immediately apparent” to the officer the moment the object was perceived?

Because most of us are persuaded by what is familiar, what your circuit court has said on the matter may be a good place to begin your research after comparing the facts of your particular case to Horton v. California. In that vein, here is a quick reference chart arranged by region:

Court of Appeals DistrictPublished opinion since Horton
1st—HoustonCarmen v. State, 485 S.W.3d 488 (2016)
2nd—Fort WorthCollins v. State, 462 S.W.3d 617 (2015)
3rd—AustinState v. Elrod, 395 S.W.3d 869 (2013)
4th—San AntonioTollefson v. State, 352 S.W.3d 816 (2011)
5th—DallasState v. Amarelle, 190 S.W.3d 1 (2005)
6th—TexarkanaCrayton v. State, 485 S.W.3d 488 (2016)
7th—AmarilloBarnes v. State, 424 S.W.3d 218 (2014)
8th—El Paso*no published opinions located
9th—BeaumontPace v. State, 318 S.W.3d 526 (2010)
10th—WacoWhite v. State, 50 S.W.3d 31 (2001)
11th—EastlandDew v. State, 214 S.W.3d 459 (2005)
12th—TylerState v. Bagby, 119 S.W.3d 446 (2003)
13th—Corpus ChristiState v. Bland, 475 S.W.3d 327 (2013)
14th—HoustonFord v. State, 179 S.W.3d 203 (2005)

Endnotes

1. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971).

2. Some confusion on this point exists; see, e.g., 22 Tex. Jur. 3d § 429, characterizing the doctrine as a general exception to the warrant requirement. A close reading of the relevant cases, however, reveals the fine distinction in which courts regard plain view as an exception to the warrant requirement only in regard to seizure of incriminating evidence, and emphatically not as an exception regarding searches.

3. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983)(opinion of Rehnquist, J.) (“‘Plain view’ is perhaps better understood, therefore, not as an independent ‘exception’ to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.”)

4. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980).

5. Texas v. Brown, 460 U.S. at 739, 103 S.Ct. at 1541.

6. Id.

7. 496 U.S. 128, 110 S.Ct. 2301 (1990).

8. Hillsman v. State, 999 S.W.2d 157 (Tex. App.—Houston [14th Dist.] 1999, pet ref’d).

9. See, e.g., State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013)(officers could not execute warrantless entry to seize allegedly mistreated dogs despite dogs being observable from alleyway); State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (business premises are protected under Fourth Amendment, and police may enter premises open to the public to the same degree as the general public has access without a warrant and may observe objects in same manner as the general public would be able); Shadden v. State, 431 S.W.3d 623 (Tex. App.—Amarillo 2014, reh’g overruled)(police officer who found firearm and contraband in plain view did not exceed scope of exigency justifying his presence on the premises).

10. Horton, 496 U.S. at 134, 110 S.Ct. 2301.

11. E.g., pursuant to a valid search warrant, officers may only search for the object of the search and places where there is probable cause to believe it may be found; evidence found in plain view along the way would be that evidence to which officers have a right of access. Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991).

12. It is worth noting that there is a split of authority in Texas regarding whether the plain view doctrine applies to seizure of items unnamed in an “evidentiary search warrant” issued pursuant to Tex. Code Crim. Proc. Ann. Art. 18.02(10). See Zarychta v. State, 44 S.W.3d 155 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d, cert. denied, 2002). Thus, the Code of Criminal Procedure may serve as a statutory limitation upon the doctrine.

13. Id., citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149 (1987)(stereo equipment not related to officers’ presence on premises was not known to be stolen until after officers moved it to obtain serial numbers, constituting an independent, warrantless search). See also State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010); Crayton v. State, 485 S.W.3d 488 (Tex. App.—Texarkana 2016).

14. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 113, S.Ct. 2130 (1993), and Graham v. State, 893 S.W.2d 4 (Tex. App.—Dallas 1994, no pet.)(both regarding “plain feel,” especially in context of a Terry frisk; but see State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)(smell alone does not justify a warrantless search, though it may contribute to the probable cause prong of Horton for a warrantless seizure).

15. As a cautionary note, some courts invert the order of the second and third Horton factors. See, e.g., Goonan v. State, 334 S.W.3d 357, 361 (Tex. App.—Fort Worth 2011, no pet.)

16. An interesting case highlighting the distinction is Keehn v. State, 279 S.W.3d 300 (Tex. Crim. App. 2009), in which the Court found that officers who observed a pressurized gas tank within a vehicle parked in a private driveway and who had probable cause to believe the tank might contain a drug precursor chemical nevertheless did not have a “right of access” to the interior of the vehicle, and thus could not seize the tank based on the plain view doctrine, although they could search the vehicle pursuant to the “automobile exception” to the warrant requirement and seize the tank as a result.

17. Miller v. State, 686 S.W.2d 725, 728 (Tex. App.—San Antonio 1985, no pet.)

18. Nichols v. State, 886 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). Goonan, supra, also provides an instructive discussion of probable cause; in that case, officers searching a vehicle pursuant to the automobile exception found a pill bottle in the console that did not bear the driver’s name, was old, did not allow for refills, and with respect to which Goonan “had made furtive movements.” The Court of Appeals approved not only the officer’s seizure of the bottle, but a subsequent search of its contents, which revealed contraband. 334 S.W.3d at 361.

Look Here: 4th Amendment Musings

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“Every man’s house is his castle” has been a concept celebrated throughout U.S. history, stemming from the colonials and their British roots. See generally Semayne’s Case, 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). The Fourth Amendment has its roots in this concept, affording people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” with no warrants to be issued without a finding of probable cause. U.S. const. amend. IV. As we all know, however, and as the Amendment clearly states, a blanket prohibition on all governmental searches is not present in the Bill of Rights, nor anywhere in the U.S. Constitution, for that matter. Our citizens are only protected against those warrantless searches found to be “unreasonable.”

Katz v. United States continues to be a leading case governing the Fourth Amendment, holding that violations must be decided under a reasonable expectation of privacy standard. 389 U.S. 347, 369 (1967). However, this standard has become more difficult to apply in modern practice as social media and online networks have permeated society at an accelerated rate. Gone are the days of the Fourth Amendment’s original purpose to protect only a person’s “castle” and effects. Instead, notions about what constitutes a reasonable warrantless search have changed dramatically, especially within the last decade, as the usage of social media has become the norm.

Although Katz was decided 50 years ago, it foreshadowed the Fourth Amendment issues presented today with the rise of online social networks, and, in fact, blindly suggested an answer to these issues. Justice Stewart, writing for the majority, argued that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id. at 351. Each day, millions of Americans access social networking sites in their own home, or office, voluntarily exposing to the public endless, and often unfiltered, personal information. According to Katz, the Fourth Amendment does not protect the information these millions of Americans display on social media.

While Katz suggests that activity on sites such as Facebook, Twitter, and Instagram are not protected by the Fourth Amendment, there is no way the Court, nearly five decades ago, could have grasped the impact social media has had on our society today. In reality, Fourth Amendment doctrine has struggled to keep up with this online phenomenon, failing to set out a black-and-white answer to the question: Is a citizen’s activity on social networking sites protected by the Fourth Amendment? As it stands today, the answer to this question is likely in the negative, and the Supreme Court has failed to release a clear answer to guide lower courts.

During a visit to the University of Florida Levin College of Law in 2010, Justice Clarence Thomas was asked whether he believed the Court has kept up with the ever-changing technological advances. His response supports the probabilistic answer noted above, expressing that with rapidly shifting technological changes, there are no longer clear zones of privacy. “[The government doesn’t] actually have to come onto property now to look into your private affairs. . . .” Clarence Thomas, Associate Justice, U.S. Supreme Court, Address at the University of Florida Levin College of Law Marshall Criser Distinguished Lecture Series (Feb. 4, 2010).

With this statement, Justice Thomas recognized through implication that the zones of privacy are murky and unresolved. The government, without guidance one way or the other from a higher power, effectively has free reign to access a person’s private affairs through social media avenues in a way that does not violate existing Fourth Amendment principles.

Soon after Justice Thomas expressed an opinion on whether the Supreme Court has successfully kept up with technological advances, Justice Stephen Breyer chimed in, as well, in a speech at Vanderbilt Law School. Although Justice Breyer spoke about applying the First Amendment in a world with internet, Facebook, and movies like “The Social Network,” he made clear the fact that the Court has a limited grasp of current, and rapidly changing, technological developments. Stephen Breyer, Justice, U.S. Supreme Court, Address at Vanderbilt Law School (Nov. 16, 2010).

The Supreme Court still has yet to determine the bounds and outer limits of a reasonable search of a user’s social network page and posts. This silence has allowed Fourth Amendment doctrine to continuously lag behind modern-day technology, and it has given courts across the country free discretionary rein to decide the issues, when presented, on a case-by-case basis. Guidelines from the high court would be helpful in these determinations. For example, do privacy settings, a user’s age, content of a post, a user’s followers, etc., have an impact on whether or not an individual’s social networking site can be considered protected under the Constitution and require a warrant to search?

Eventually, the Court will have to examine these issues, and this fact has again been recently highlighted in a case involving GPS (Global Positioning System) tracking. In United States v. Jones, the Supreme Court held that the use of a GPS tracker to monitor a car’s movement constitutes a search under the Fourth Amendment. 132 S.Ct. 945, 951-52 (2012). Justice Alito, as part of his concurring opinion, addressed the fact that as “social tools” continue to advance, the Fourth Amendment’s interplay between social media and the average person’s expectations of privacy in his or her daily life will need to be addressed. See Id. at 963.

Additionally, Justice Sotomayor’s concurring opinion emphasized that a GPS tracker onto one’s effects is a Fourth Amendment violation because of the physical intrusion into one’s property. Id. at 954–55. The decision in Jones definitely sets out a clear ban on attaching a GPS tracker to one’s effects, but it most likely does not preclude tracking movement, or other actions, through social media websites where there is no physical intrusion into an individual’s privacy when the information is knowingly and willingly made available to the public. Again, the Court did not speak definitively either way.

While Jones once again brought to the forefront the fact that social media and technology advances need to be addressed under a Fourth Amendment analysis, a black-and-white decision has yet to be made. As of today, law enforcement agencies use social networks on a regular basis to investigate crimes and prosecute suspects because there is no real concern that such actions could result in Fourth Amendment violations.

Many, if not most, social media users are unaware that their online networking is likely not protected by the Fourth Amendment. While this might change as case law and statutory law develops, all social media users, especially our clients facing criminal charges, should be wary of the information posted online. Further, it is imperative for us, as defense attorneys, to remind our clients that their “tweets,” location check-ins, shared photos and videos, status updates, and the like are probably free game for government officials. As such, we should counsel them to take the necessary precautions to ensure that their social media accounts will not have a negative effect on the outcome of their case.

Look Here: 4th Amendment Musings

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As we all know, there are instances when driving that individuals in the State of Texas actually do not use their signals. This includes at a time when a person of common intelligence can see that a turn will occur—e.g., in a center turn lane, in turn-only lanes, at a “T” intersection, etc. The Court of Criminal Appeals has held that merging into a single lane did not require the use of a signal. Mehaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012)(“a signal is required only to indicate an ‘intention to turn, change lanes, or start from a parked position,’ no signal is required when two lanes become one”). This finding is based upon the Court of Criminal Appeals’ interpretation of Texas Transportation Code § 545.104(a). The federal courts are also inclined to hold that use of a signal does not involve lane changes. See United States v. Alvarado-Zarza, 782 F.3d 246, 250 (5th Cir. 2015)(requirement that driver signal turn for at least 100 feet before turn applies only to turns, not to lane changes).

Knowing this, when a driver is faced with a similar situation, such as a dedicated left turn lane or right-turn-only lane, one would think that a signal would not be required. This is not the case. In Holmquist v. State, No. 05-13-01388-CR (Dallas 2015)(not designated for publication), the officer observed the defendant stopped at an intersection in a left-turn-only lane awaiting the signal light’s change. Both the defendant and the vehicle in front of defendant in the left-turn-only lane failed to signal their intention to make the left turn. When the traffic light changed, with the defendant and the vehicle in front of him making their unsignaled left turns, the officer pulled the defendant over. Holmquist filed a motion to suppress, which was denied. Holmquist’s argument in the suppression hearing was that the left-turn-only traffic control device at the intersection overrode the requirement that he signal his intention to turn. The Dallas court found otherwise, basing, in part, their opinion on Wehring v. State, 276 S.W.3d 666, 670 (Tex.App.—Texarkana 2008, no pet.), in finding against Holmquist. Wehring involved a DWI defendant attempting to suppress the stop based upon his failure to use a turn signal in right-turn-only lane. The key language in Wehring states:

        The plain language of the statute requires the driver to signal for a turn. It does not include exceptions for those situations in which there is only one direction to turn. We cannot say that requiring the use of a turn signal while entering a turn-only lane and making the turn would lead to absurd results. See Williams v. State, No. 05-02-00314-CR, 2002 WL 31521373, at *2 (Tex.App.—Dallas Nov. 14, 2002, no pet.)(holding Section 545.105 requires driver use turn signal in turn-only lane). It has been held that Section 545.104 provides a “ bright-line rule by which drivers of motor vehicle and police officers charged with enforcing the laws may operate. If a turn is made from one street onto another, a signal is required.” Id. (citing Krug v. State, 86 S.W.3d 764, 767 (Tex.App.—El Paso 2002, no pet.)) (Section 545.104 applies anytime turn made and not limited to situations in which driver turns at intersections or turning around near curve or grade.).

It seems that while these arguments are not necessarily being found by the appellate courts to have merit, there is in fact a conflict within the Transportation Code that should be brought forward. Texas Transportation Code § 544.004 states:

(a)   The operator of a vehicle or streetcar shall comply with an applicable official traffic-control device placed as provided by this subtitle unless the person is:

(1)   otherwise directed by a traffic or police officer; or
(2)   operating an authorized emergency vehicle and is sub­ject to exceptions under this subtitle.

(b)   A provision of this subtitle requiring an official traffic-control device may not be enforced against an alleged violator if at the time and place of the alleged violation the device is not in proper position and sufficiently legible to an ordinarily observant person. A provision of this subtitle that does not require an official traffic-control device is effective regardless of whether a device is in place.

An attempt to harmonize these statutes seems to be entirely glossed over by the appellate courts. The Holmquist court, despite this very argument being before them, failed to include any analysis of a driver in that defendant’s position. It is presumed that had Holmquist proceeded straight through the intersection out of the left-turn-only lane in compliance with his lack of signaling, the officer would have then stopped him for violation of 544.004. In most of the cases involving the interpretation of 545.104, there is some statutory construction analysis regarding whether the statute is clear and unambiguous or would lead to some form of an absurd result. In each case involving 545.104, Holmquist in particular, the courts conclude that 545.104 is not ambiguous and requiring a turn signal from a turn-only lane does not lead to an absurd result. In light of Mehaffey, it would appear that the argument set forth in Holmquist and Wehring has merit. But the current state of the law mandates that any and all drivers signal their intent to turn 100 feet prior to making that turn without regard to any form of traffic control device involved, and any stop made for that failure will be upheld.

Look Here: 4th Amendment Musings

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Our ever-growing digital society has made non-reliance on technology almost impossible. There is an application that applies to every facet of life. With one swipe, a person can access millions of photos, bank information, years of dialogue, and so much more.

With the increase of digital usage, there are growing legal issues that arise. However, despite the number of upgrades in technology, the foundation of all search and seizure issues is the Fourth Amendment. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation and particularly describing the place to be searched and the person and things to be seized.

A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement. Before Riley, officers relied on the exception of a search incident to a lawful arrest to search cell phones and their contents. There were cases that led to the ruling in Riley v. California. The first was Chimel v. California, which allowed for a search incident to arrest limited to the area in the immediate control of the arrestee, where it is was justified by the interest in officer safety and preventing evidence destruction. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed. 2d 685.

The holding in Chimel was furthered with the holding in Robinson. Robinson was pulled over for a traffic violation, arrested, and then searched. During the search of a closed cigarette pack police found heroin. In Robinson the Court applied the holding in Chimel to the search of the cigarette pack on Robinson. The court in Robinson extended the holding in Chimel, in stating that the risks identified in Chimel are present in all arrests. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L. Ed.2d 427.

Despite the holding in Chimel and Robinson, the Riley court declined to extend their holdings. Rather, the justices found that the search of digital information on a cell phone does not further the government interest identified in Chimel, and implicates a substantially greater individual privacy interest than a brief physical search. Riley v. California, 134 S.Ct. 2473 (2014).

In the Riley case, two cases were consolidated for appeal to discuss whether the warrantless search of a cell phone incident to arrest was a violation of the Fourth Amendment. Police officers stopped Riley for driving with expired tags. Ultimately, officers discovered that Riley’s driver’s license was suspended. He was arrested, and the officers conducted an inventory search of his vehicle. During the search, officers found two handguns. Officers searched Riley, incident to the arrest, and seized Riley’s cell phone. Riley’s phone was a smartphone. On the phone, officers found evidence of gang affiliation and photos of Riley that allegedly connected him with a recent shooting. Based on the evidence found during the warrantless search of Riley’s phone, Riley was charged with firing at an occupied vehicle, assault with a semiautomatic, and attempted murder.

Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison. The California Court of Appeals affirmed No. D059840 (Cal. App. Feb. 8, 2013), App. to Pet. for Cert. in No. 13-132, pp. 1a–23a. The court relied on the California Supreme court’s decision in People v. Diaz, 51 Cal. 4th 84, 119 Cal. Rptr.3d. 105, 244 P.3d 501 (2011), which held the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee person.

The second case that was combined within the Riley v. California appeal was regarding a defendant named Brima Wurie. In the Wurie case, a police officer conducting surveillance observed Wurie in a drug transaction. Wurie was arrested for his alleged conduct and taken into custody. Once Wurie made it to the police station, the officers seized his cell phone. Unlike Riley, Wurie did not have a smartphone. Wurie had a flip phone. While the police were in possession of Wurie’s phone, numerous calls were coming in. The log on Wurie’s phone identified the caller as “my house” on the phone. The officers also found photos of a woman and a child. The officers used the information obtained from Wurie’s phone to get a search warrant. When the search warrant was executed, 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash were found. Wurie was subsequently charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition.

Wurie moved to suppress the evidence obtained from the search warrant based on the evidence obtained being fruits of an unconstitutional search of his cell phone. The district court denied his motion and sentenced him to 262 months in prison. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. The First Circuit held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Digital data within a cell phone or stored on a computer does not present the same concerns as other evidence. In a majority of circumstances, a phone cannot be used as a weapon. More so, most digital devices have backups, which ease the concern regarding evidence destruction. The Court in Riley deciphered information on a cell phone from other evidence usually found on a person due to its personal nature. The court in Riley held that a warrant is generally required before a cell phone search. The warrant requirement is an important component of the Fourth Amendment.

Riley v. California requires officers—absent exigent circumstances—to obtain a search warrant, a huge victory and confirmation of the Fourth Amendment in a digital age. However, the issue that Riley does not address is the extent of the scope of the search. When officers obtain a search warrant for computer or cell phone files, they are primarily sent to peruse through the digital files of an accused looking for a needle in a haystack. The officers, in searching for responsive items to a search warrant, also have access to unresponsive documents that are private to the accused. The Fourth Amendment does not only prohibit unreasonable searches; it also prohibits general searches. The core historical role of the Fourth Amendment was to prohibit general warrants, which is a warrant that does not state in particularity where the warrant can be executed and what items the agents can search for or seize. Stanford v. Texas, 379 U.S. 476, 480-86 (1965).

In a digital age, the defense is faced with the need to protect our clients from unreasonable searches and seizure and the over seizure of information based on general search warrants.

Look Here: 4th Amendment Musings

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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.”)

Notes

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

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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

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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.