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).

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.

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.

United States vs. Jones

It appears the United States Supreme Court does in fact recognize the Fourth Amendment to the United States Constitution. My faith is revived.

In United States v. Jones, 565 U.S. __ (2012), the United States Supreme Court unanimously ruled that law enforcement officers violated the Fourth Amendment when they attached a GPS device to Antoine Jones’ car and collected data on his whereabouts for 28 days. Jones was under suspicion for trafficking and conspiracy to traffic cocaine. Although law enforcement officers had a warrant to attach the GPS device, the warrant expired before the device was attached and the officers attached it to Jones’ vehicle in a jurisdiction not covered by the warrant. In effect, the officers attached the GPS device without a warrant.

The Supreme Court unanimously agreed that the law enforcement officers violated the Fourth Amendment to the United States Constitution. Remember, the Fourth Amendment protects “persons, houses, papers, and effects,” from unreasonable searches and seizures. The majority – Justice Scalia (author), Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Sotomayor – decided that physically installing a GPS device on someone’s car and using it to monitor movements is a “search.” However, the majority left the door open for future issues relating to a person’s expectation of privacy in a highly digital world, including whether a warrant is always required in GPS cases.

To read the Court’s opinion, click here: United States v. Jones.

The Fourth Amendment and Drug Dog Sniffs…

In Illinois vs. Caballes, 543 U.S. 405 (2005), the United States Supreme Court ruled that law enforcement officers do not need reasonable suspicion to use a drug dog to sniff a vehicle during a legitimate traffic stop.

Roy Caballes was stopped by Daniel Gillette, an Illinois State Trooper, for speeding on Interstate 80 in La Salle County, Illinois. When Gillette radioed the dispatcher to report the traffic stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed to the scene of the traffic stop with his narcotics-detection dog. When Graham arrived at the scene, Caballes’s car was on the shoulder of the road and Caballes was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around Caballes’s car. The dog alerted at the trunk. The officers then searched the trunk and found marijuana. Caballes was arrested and charged with trafficking marijuana. It is important to note that the entire incident lasted less than 10 minutes. Although convicted at trial, the Illinois Supreme Court overturned the conviction ruling that a drug dog sniff was unreasonable without evidence of a crime other than speeding.

The United States Supreme Court saw it otherwise. In a 6 to 2 decision, the Court held that the Fourth Amendment is not applicable when law enforcement officers use a drug dog sniff during the course of a legal traffic stop. The Court reasoned that since dog sniffs only identify the presence of illegal items, in which citizens have no legitimate privacy interest, the Fourth Amendment does not apply to their use.

Caballes therefore authorizes law enforcement officers to walk a drug dog around a vehicle during any legitimate traffic stop. If the dog signals that it smells illegal drugs, the officers then have probable cause to conduct a search.

Search Incident to Arrest – Cell Phones

In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), the Fifth Circuit Court of Appeals ruled that law enforcement officers may search cell phones incident to a lawful arrest.

Citing both United States v. Robinson, 414 U.S. 218 (1973) and New York v. Belton, 453 U.S. 454 (1981), the Court stated “Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial.” Finley at 259-260.

Finley was charged with and ultimately convicted of aiding and abetting possession with intent to distribute a controlled substance (methamphetamine). After his arrest and during the search of his cell phone, law enforcement officers found incriminating text messages relating to drug trafficking which were used against him at his trial.

Search Incident to Arrest – Arizona v. Gant

After many years of expanding the scope of the search incident to arrest doctrine, the United States Supreme Court took a step back in Arizona v. Gant, 556 U.S. 332 (2009).

Acting on an anonymous tip that a residence in Tucson was being used to sell drugs, two Tucson police officers knocked on the front door of the residence and asked to speak to the owner. Rodney J. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. Later that evening, the officers returned to the residence and found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. The man and woman were handcuffed and secured in separate patrol cars when a vehicle pulled up to the residence. The officers recognized Gant as the driver of this vehicle. Gant got out of his vehicle and walked away from the vehicle. When he was about 10 feet from his vehicle, he was met by one of the police officers who immediately arrested and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, one of the officers called for backup. When two more officers arrived, Gant was locked in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of the other patrol car, two officers searched his car. One officer found a gun and the other discovered a baggie containing cocaine in the pocket of a jacket on the backseat. Gant was charged with possession of a narcotic drug for sale and possession of drug paraphernalia.

Gant moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Gant argued that New York v. Belton, 453 U.S. 454 (1981), did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. The trial court denied the motion to suppress on the grounds that the search was incident to a lawful arrest. Gant proceed to trial where he was convicted and sentenced to a three year term in prison.

In reversing Gant’s conviction, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length the United States Supreme Court decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 162 P. 3d 640, 642–643 (2007) (citing 453 U. S., at 460). The Arizona Supreme Court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 162 P. 3d, at 643. Relying on the United States Supreme Court decision in Chimel v. California, 395 U.S. 752 (1969), the Arizona Supreme Court observed that the search incident to arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 162 P. 3d, at 643. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” 162 P. 3d, at 644. Accordingly, the Arizona Supreme Court held that the search of Gant’s car was unreasonable.

In a five to four decision, the United States Supreme Court agreed with the rationale of the Arizona Supreme Court and held that “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.” Gant at ____.

In a rather odd alliance, voting for the defense’s postion were Justices Stevens, Scalia, Souter, Thomas and Ginsburg – voting for the State of Arizona’s position were Justices Roberts, Kennedy, Breyer and Alito.

Justice Scalia wrote a concurring opinion, stating that “we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.” Gant at ____.

Search Incident to Arrest – Thornton v. United States

In Thornton v. United States, 541 U.S. 615 (2004), the United States Supreme Court again expanded the authority of law enforcement officers to conduct searches incident to a lawful arrest. In Thornton the Court extended the ruling of New York v. Belton, 453 U.S. 454 (1981), to include “recent occupants” of vehicles.

Marcus Thornton was stopped by a police officer who had noticed that the license plate on Thornton’s Lincoln Town Car belonged to a Chevy two-door car. Thornton had parked his car and had walked away from the car before he was stopped by the officer. During his conversation with Thornton, the officer asked if he could search Thornton. Thornton consented, and during the search, the officer found two baggies containing illegal drugs. The officer arrested Thornton and then searched his vehicle. During the course of the search, the officer found a gun inside the vehicle. Thornton was subsequently charged and convicted of federal drug and firearms offenses.

The Court held that Belton governs even when an officer does not make contact until after the person arrested has left the vehicle. The Court ruled that Belton allows police to search a car’s passenger compartment incident to a lawful arrest of both “occupants” and “recent occupants.”

Search Incident to Arrest – New York v. Belton

In 1981, the United States Supreme Court further expanded the authority of law enforcement officers to conduct searches incident to a lawful arrest. In the case before the Court, A New York state police officer pulled over a vehicle traveling at an excessive rate of speed. The vehicle had four occupants, including Roger Belton. During the course of the traffic stop, the police officer smelled burnt marijuana and saw an envelope marked “Supergold” on the floor of the vehicle that he associated with marihuana. He ordered the men out of the vehicle and placed them under arrest for possession of marijuana. He split them up and then picked up the envelope and found that it contained marihuana. He then gave each occupant of the vehicle a Miranda warning and searched each of them. He then searched the passenger compartment of the vehicle and found Belton’s leather jacket. He found cocaine in one of the pockets of the jacket. Belton was subsequently charged with the offense of possession of a controlled substance.

The Supreme Court held that the search of Belton’s jacket was a search incident to a lawful custodial arrest, and hence did not violate the Fourth and Fourteenth Amendments. The jacket, being located inside the passenger compartment of the car, was “within the arrestee’s immediate control” within the meaning of Chimel v. California, 395 U. S. 752, wherein it was held that a lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the immediately surrounding area. Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. New York v. Belton, 453 U.S. 454 (1981).

Search Incident to Arrest – United States v. Robinson

In 1973, the United States Supreme Court expanded the authority of law enforcement officers to conduct searches incident to a lawful arrest. In the case before the Court, Willie Robinson was arrested for the crime of operating a motor vehicle with a revoked license. Incident to the arrest, the arresting officer searched Robinson for weapons and found a crumpled cigarette package in Robinson’s clothing. The officer opened the cigarette package and found heroin. The Supreme Court upheld the search and ruled that law enforcement officers may open and search through all items found on the arrestee’s person even if they are in a closed container and and even if the arresting officer has no suspicion that the contents of the container are illegal. United States v. Robinson, 414 U.S. 218 (1973).