Consent to Search…

As I have noted in prior posts, the Fourth Amendment to the United States Constitution and Article 1, §9 of the Texas Constitution prohibit unreasonable searches and seizures by law enforcement officers. Hayes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim. App. 1976).

However, the protections afforded by these constitutional guarantees may be waived.

One noted exception to the requirement of either a search warrant or probable cause is a search that is conducted pursuant to consent. Before the consent is deemed effective, the prosecution must prove by clear and convincing evidence that the consent was freely and voluntarily given. The burden to prove by clear and convincing evidence that consent was freely and voluntarily given requires the prosecution to show the consent given was positive and unequivocal and there must not be any duress or coercion, actual or implied. The question of whether consent was voluntary is a question of fact to be determined from the totality of all the circumstance surrounding the giving of the consent to search. See Meeks v. State, 692 S.W.2d 504, 508-509 (Tex.Crim.App. 1985, en banc); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997, en banc); and Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000).

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Traffic Stops – What Officers May Lawfully Do…

A law enforcement officer may lawfully stop a vehicle and conduct a brief investigation when he observes a traffic violation. Strauss v. Texas, 121 S.W.3d 486, 490 (Tex.App. – Amarillo 2003, pet. ref’d.). In general, the decision to stop a vehicle is reasonable when the officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000).

During a routine traffic stop, the officer may require the driver to identify himself and produce a valid driver’s license and proof of liability insurance. Strauss at 491. The officer may direct the driver to step out of the vehicle, Estrada v. State, 30 S.W.3d 599, 603 (Tex.App. – Austin 2000, pet. ref’d.), detain the driver to check for outstanding warrants, Walter at 542, inquire about the registration of the vehicle, Sieffert V. Texas, 290 S.W.3d 478, 483 (Tex.App. – Amarillo 2009), and ask about the destination and the purpose of the trip. Haas v. State, 172 S.W.3d 42, 50 (Tex.App. – Waco 2005, pet. ref’d.).

The officer may also question any passenger in the vehicle. Duff v. State, 546 S.W.2d 283, 286 (Tex.Crim.App. 1977).

Once the purpose of the traffic stop has been completed, the officer may then ask the driver if he possesses any illegal contraband and may also ask for voluntary consent to search the vehicle. Strauss at 491. If consent to search is not given, the officer may no longer detain the vehicle or its occupants unless reasonable suspicion of some other criminal activity exists. Sieffert at 484.

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Terry Stops – Unreasonable Searches & Seizures…

The Fourth Amendment to the United States Constitution and Article 1, §9 of the Texas Constitution prohibit unreasonable searches and seizures by law enforcement officers. It is well established that the basic purpose of the Fourth Amendment is to safe guard the privacy and security of individuals against arbitrary invasion by governmental officials. Hayes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971). The same is true of Article 1, §9 of the Texas Constitution. Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App. 1976).

There are three recognized categories of interactions between law enforcement officers and other individuals: (1) encounters, (2) investigative detentions, and (3) arrests.

An encounter is a friendly exchange of pleasantries or mutually useful information. In an encounter, a law enforcement officer is not require to possess any particular level of suspicion and the individual is free to walk away and not answer any questions asked by the law enforcement officer. Hawkins v. State, 758 S.W.2d 255, 259 (Tex.Crim.App. 1988).

An arrest occurs when an officer takes an individual into custody. A law enforcement officer must have probable cause to arrest an individual if there is no warrant to arrest that person. In order to establish probable cause for an arrest, the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information must be sufficient to warrant a prudent man in believing that the individual had committed or was committing a crime. Parker v. State, 206 S.W.3d 593, 596 (Tex.Crim.App. 2006).

The concept of investigative detentions originated with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) which sought to ensure police action that fell technically short of an arrest was not immune from Fourth Amendment protection. In an investigative detention, also known as a Terry stop, the officer must have articulable facts that, in light of his experience and personal knowledge, together with inferences from those facts, would reasonable warrant the intrusion on the freedom of the individual stopped. Terry, 392 U.S. at 21. The officer must have a reasonable suspicion that some unusual activity is occurring or has occurred, and the person he has detained is connected with the activity and that the activity is related to the commission of a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App. 1986, en banc); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App. 1983). An investigative detention is a seizure under which the individual is not free to leave. Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App. 1996, en banc).

A traffic stop is a “seizure” within the meaning of the Fourth Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004, en banc). Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, traffic stops are analyzed as a Terry stop. Haas v. State, 172 S.W.3d 42, 50 (Tex.App. – Waco 2005, pet. ref’d.).

Therefore, for a traffic stop to be lawful in Texas, the officer must have a reasonable suspicion that some unusual activity is occurring or has occurred, and the person he has detained is connected with the activity and that the activity is related to the commission of a crime; the crime being a violation of the traffic laws of Texas.

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Rules to Live By – Update…

After reading Alford v. State, ___ S.W.3d ___ (Tex.Crim.App. 2012) (see previous post), I decided to update my “Rules to Live By” first published in my March 12, 2011, post. I have added Rule Number 4. My updated Rules to Live By are as follows:

Rule Number 1: Do not talk to the police.

Rule Number 2: Always follow Rule Number 1.

Rule Number 3: First thing, ask for a lawyer.

Rule Number 4: Identify yourself and shut up.

Exercise your right to remain silent – do not cooperate with the police.

Even answering simple questions can have disastrous results.

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Miranda – Routine Booking Question Exception…

In Miranda v. Arizona, the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).

The Supreme Court later elaborated upon the meaning of “interrogation” under Miranda explaining that the term refers to (1) express questioning and (2) “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

A four-justice plurality subsequently recognized, as a type of question “normally attendant to arrest and custody,” a “routine booking question exception” to Miranda that “exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990). Writing the plurality opinion, Justice Brennan explained that questions that are asked “for record-keeping purposes only” and are “reasonably related to the police’s administrative concerns . . . fall outside the protections” of Miranda. Muniz, 496 U.S. at 601-02. The Court held that questioning Muniz about his “name, address, height, weight, eye color, date of birth, and current age” were Miranda exempt because these questions were “reasonably related to the police’s administrative concerns.” Muniz, 496 U.S. at 601-02.

Texas courts have consistently recognized this routine booking question exception to Miranda. The most recent Texas Court of Criminal Appeals decision on the exception is Alford v. State, ___ S.W.3rd ___, (Tex.Crim.App. 2012). In Alford, Cecil Alford was arrested for evading arrest. After he was transported to the county jail, the arresting officer searched the back seat of his patrol car and found a clear plastic bag containing several pills. Directly under the bag he found a flash drive. The officer showed the flash drive to Alford and asked him what it was – Alford said it was a memory drive. The officer ask Alford if it was his and Alford said yes. Subsequent testing revealed that the pills were ecstacy. Alford was then charged with possession of a controlled substance. At trial, the State introduced the statements concerning the flash drive to help establish Alford’s knowledge and possession of the controlled substance. The jury convicted Alford and he was sentenced to five years’ confinement in the Texas Department of Corrections.

Prior to trial, Alford filed a motion to suppress his statement concerning the flash drive claiming that the questioning by the arresting officer violated Miranda. The trial court denied the motion to suppress ruling that the question was a routine booking question and was not in violation of Miranda. On appeal, the Texas Court of Criminal Appeals confirmed Alford’s conviction. To read the Court’s opinion, click here: Alford v. State.

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