Consent to Search Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Jan 11

62

Recording Conversations Texas Wiretapping

Can I Record a Conversation Without the Other Party’s Consent in Texas?

By Brandon Barnett | Criminal Defense

Recording Conversations Without Consent in Texas | Wiretapping Laws

Recording Conversations Texas Wiretapping With roadway cameras at nearly every street corner, video surveillance in businesses, doorbell cameras on homes, web cams on computers, and recording capabilities on mobile phones – we must navigate carefully in a digital world. We’ve seen titillating news reports exposing a secret audio tape of a public figure having scandalous phone conversations, or video surveillance of questionable traffic stops that escalate in shocking fashion. You may have had a suspicious feeling that you were being recorded, or on the other hand, felt as if you needed to record a conversation with another for your own protection.

With privacy seemingly harder to come by as compared with days long past—what does Texas law say about recording conversations? Is it illegal to record a phone conversation with another person? What about in person?

The short answer is: YES, you can record a conversation with another person without that person’s consent. But this answer requires more explanation.

Recording Phone Calls in Texas | Texas is a One-Party Consent State

Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you’re recording then you have probably given yourself consent to record the conversation. Generally speaking, state wiretapping laws turn on whether the state is a one-party consent state. While some states require the consent of all of the parties to a conversation prior to recording, Texas permits the recording of telephone calls, so long as the consent of one of the parties is obtained. As stated, if you are one of the parties on the phone call, then you may consent to having your own conversation recorded—you need not alert the other party. Additionally, a parent may give vicarious consent to the recording of a child’s conversation if the parent has a good faith objectively reasonable belief that the recording is necessary for the welfare of the child.

However, if during a phone call there are multiple parties who are in different states, then be aware that other state laws may require pre-recording consent of all of the parties. In this scenario, if the recording party obtains consent from the other parties before the recording begins, then the recorder is not in violation of wiretapping laws.

See this link to learn more about the various state wiretapping laws.

Recording In-Person Conversations in Texas | Can I Record Someone Else’s Public Conversation?

Texas law (Penal Code §16.02) does not permit you to record in-person communications when the parties have an expectation that such communication is not subject to interception (i.e. If there is a reasonable expectation of privacy). If you wish to record a conversation to which you are not a party, all of the parties must give consent before the recording device is turned on or there must be no reasonable expectation of privacy (e.g. If the recording is taken from your doorbell camera and the parties are standing on you doorstep). If you are a party to the conversation, record away.

Further, you are able to record in-person communication at a public place, like a mall food court or at a football game for example, where parties do not have the expectation of privacy. Remember—if you say it in a public place, within earshot of others who may overhear, you do not have an expectation of privacy in those statements. Generally, such statements may be recorded without violating that state’s wiretapping laws.

A Word of Caution of Recording Conversations in Texas

Please be aware that there are both federal and state wiretapping laws that may limit your ability to making recordings of telephone calls or in person conversations. This article addresses state wiretapping laws in Texas only. Additionally, if a person has violated a state or federal wiretapping statute, he may be both charged criminally and be sued civilly by the damaged party.

Further, while a person may have successfully recorded a conversation under state and federal wiretapping laws, the act of disclosing the recording to other third parties could be, in and of itself, punishable criminally or civilly under other legal theories (such as slander, for example).

If you are faced with a wiretapping charge, or have questions about wiretapping, please contact an attorney who will address both the state and federal regulations as they are related to the facts of your specific case. Wiretapping charges are potentially serious felonies that could land a person in jail or prison, with fines ranging from $200 to $10,000. If you are faced with charges related to wiretapping in Texas, please contact our offices at (817) 993-9249 for a consultation.

Summary on Texas Wiretapping

A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.

This article is for educational purposes only and should never be substituted for legal advice.

Feb 01

5

Can a Bus Driver Give Consent to Search the Passenger Compartment?

By Brandon Barnett | Search & Seizure

The Case of the Not Too “Wise” Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the “sleeping” man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name “James Smith.” The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver’s request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers’ request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name “Morris Wise” and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal “Checkpoint Stop”

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers’ conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers’ search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers’ bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court’s cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a “bus interdiction.”

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers’ search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise’s interaction with the officers was a consensual encounter because a reasonable person in Wise’s position would have felt free to decline the officers’ requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer’s questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.

Jan 28

4

Can Police Stop You for Driving on the Improved Shoulder of the Road?

By Brandon Barnett | Drug Crimes

State v. Cortez (Tex. Crim. App. 2018)

Jose Cortez was stopped because a Texas State Trooper allegedly observed him driving on an “improved shoulder” in violation of Texas Transportation Code § 545.058. The officer testified that Cortez touched the white “fog” line of the road and crossed it twice. During the ensuing stop, the trooper searched Cortez’s vehicle and found drugs. Cortez moved to suppress the stop (and the search) arguing that the officer lacked probable cause to initiate the stop.

What is Driving on the Improved Shoulder?

The Texas Transportation Code also defines “improved shoulder” as a “paved shoulder” with the “shoulder” being the “portion of the highway that is:

adjacent to the roadway;
designed or ordinarily used for parking;
distinguished from the roadway by different design, construction, or marking; and
not intended for normal vehicular travel.”

The Texas Transportation Code §545.058 prohibits drivers from driving on the shoulder unless it is necessary and done safely, “but only:

to stop, stand, or park;
to accelerate before entering the main traveled lane of traffic;
to decelerate before making a right turn;
to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
to allow another vehicle traveling faster to pass;
as permitted or required by an official traffic-control device; or
to avoid a collision.”

Court Suppressed the Traffic Stop Because Driving on the Shoulder Did Not Violate Any Laws

In this case, the trial court determined, after careful review of dashcam footage and officer testimony, that Cortez did not appear to touch the fog line, and that even if he did, that was not a violation of the law. The courts also reasoned that if Cortez did cross the line, he was doing so to let the officer pass and to exit the highway, both reasons justified by the statute. The court of appeals affirmed the trial court’s suppression of the stop. The Texas Court of Criminal Appeals agreed and affirmed the lower court’s ruling.

What Does This Mean for Texas Drivers?

First, it is not illegal to touch the white line of the shoulder under Texas Transportation Code § 545.058. If you are pulled over for this, the courts have determined this is not a violation of the law and does not provide a reasonable basis for an officer to pull you over and search your vehicle.

Second, if you do cross the white line, that is not necessarily a violation. If one of the acceptable reasons above is present, then it is permissible to cross the shoulder line and the police will not have a reasonable basis for stopping you and should not stop you or search your vehicle.

Overall, you should pay close attention when you are driving. But the courts have acknowledged that it is nearly impossible to drive in a perfectly straight line. The police do not automatically have a reasonable basis to stop you if you cross the white line, and they have NO basis for stopping you if you merely touch it. However, as we have always said, if you are stopped, be polite, be courteous, and do not consent to any searches.

NOTE: Presiding Judge Keller dissented in this case and would hold that driving on the white fog line does constitute driving on the improved shoulder in violation of the transportation code.

Dec 19

3

When Does a Traffic Stop End and Improper Police Conduct Begin?

By Brandon Barnett | Drug Crimes, Search & Seizure

A Traffic Stop for a Minor Traffic Infraction Leads to Search, Seizure, and Arrest: Exactly When Should Traffic Stops End?

traffic stop duration king If you’ve been a licensed (or even unlicensed) driver in Texas for long enough, you’ve experienced a traffic stop. Whether it be for speeding or something worse, a traffic stop is not generally a pleasant experience. But in some traffic stops across the state (hopefully not yours), the police conduct a search of the vehicle, then a search of the driver or passengers, and, finally make an arrest of some sort. How does something like a broken tail light or speeding lead to search, seizure, and arrest? When traffic stops for minor infractions potentially lead to serious criminal charges, it’s important to know how Texas courts define the moment when a traffic stop ends.

King v. State (2nd Court of Appeals – Fort Worth, 2016)

Broken Tail Light Leads to a Traffic Stop

Around 1:00 am, Jennifer Dowling drove Christopher King’s car home from a night on the town. Blue Mound Police noticed that the car had a broken right tail light and conducted a traffic stop pursuant to the infraction. Police ran the standard background check on Dowling, the driver, and King, the passenger, only to discover that neither had a valid driver’s license. As a result, Dowling was arrested for driving without a license. Police did not permit King to drive the car away and informed him that they would impound the car because leaving the car behind posed a safety hazard for other motorists.

Consent to Search Obtained, Traffic Stop Continued

To begin the impounding process, police asked King to exit the vehicle. When King got out of the car, police asked if they could perform a pat-down. Nervously, King complied with the request. When King stood up, a white cylinder-shaped container fell out of King’s pants onto the ground, and he admitted that the container held meth. King was arrested and charged with possession of a controlled substance.

Trial Court Holds That King Consented to the Pat-Down

Before trial, King filed a motion to suppress the physical evidence—the meth and the container—because the evidence was seized without a warrant. At the suppression hearing, the State prevailed, arguing that King consented to the pat-down, and the interaction was a consensual encounter. King lost his suppression motion, and plead guilty to the charges. The trial court sentenced King to twelve years confinement. Arguing that the traffic stop ended when Dowling was arrested and that the traffic stop was improperly extended to him, King appealed to the Second Court of Appeals.

Second Court of Appeals Discusses Traffic Stops

The Second Court of Appeals in Fort Worth relied upon existing case law from the Supreme Court to evaluate the merits of King’s appeal. “A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation.” Arizona v. Johnson, 555 U.S. 323, 333; 129 S. Ct. 781,, 788 (2009). “A traffic stop ends when police have no further need to control the scene.” Id., 129 S. Ct. at 783. According to the Second Court of Appeals, the police needed to control the scene even after Dowling was arrested. In asking King for a pat-down, they were taking reasonable steps to secure the area by ensuring that King was not a safety threat while waiting for a tow truck. Further, “the impoundment of the vehicle was a task tied to the traffic infraction, and King ma[de] no argument that the task [of impoundment] should have reasonably been completed at the time the police asked for consent to the pat-down.” The Second Court of Appeals affirmed the trial court’s holding that the traffic stop was not improperly extended.

What does all of this mean for motorists? So long as the police are reasonably securing the scene by taking steps in an effort to maintain safety, the police may continue the traffic stop until the conclusion of such safety measures, including but not limited to, pat-downs, security sweeps, background checks, and impoundments. In this case, King would have had a more colorable argument if he had been a licensed driver and the police extended the stop rather than letting him drive the vehicle away from the scene.

May 05

3

Knock and Talk Interview Still a Lawful Way for Police to Enter a Premises

By Brandon Barnett | Theft

Police Knock and Talk Danhach 2016 “Knock, knock!”

“Who is there?”

“The police and the FBI, may we come in please?”

There is a knock at the door. You look out your peep hole and see law enforcement. Do you have to open your door? If you open your door, do you have to let them in? What if they don’t have a warrant, but ask nicely and start talking to you? If you give consent to law enforcement to enter your home, can evidence seized be used against you in court later on?

This article is a summary of United States v. Danhach, a case recently decided in the US Court of Appeals for the 5th Circuit.

Evidence is Seized After Police Politely Ask If They Can Come Inside.

The Houston Police Department and the FBI had been investigating Sameh Danhach and his business associate for possible involvement in organized retail theft. As part of the investigation, law enforcement began surveilling a warehouse that Danhach had been seen entering on multiple occasions and to which a car used in stealing over-the-counter drugs and expensive baby formula had been linked. After several weeks of surveillance, law enforcement approached the warehouse and knocked on the door. Danhach’s business associate permitted the officers to enter, as surveillance cameras rolled capturing the entire conversation.

The officers saw trash bags full of merchandise and other indicators of stolen goods out in the open. Citing this evidence in a probable cause affidavit, law enforcement obtained a search warrant and seized the evidence for trial. Danhach was charged with conspiracy to transport stolen goods in interstate commerce and also with aiding and abetting the interstate transportation of stolen OTC medication and baby formula, violations of 18 U.S.C. § 371 and 18 U.S.C. § 2314, among other charges.

At trial, the jury found Danhach guilty on all counts and the judge sentenced him to 151 months in prison and a three year term of supervised release. Danhach appealed.

The Knock and Talk Procedure, the Plain View Doctrine and Consent Collide.

Courts have recognized the “knock and talk” technique as “a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); Kentucky v. King, 563 U.S. 452, 469 (2011). Evidence may be cited in support of a search warrant if (1) law enforcement entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was immediately apparent; and (4) law enforcement had a lawful right of access to the item.” United States v. Jackson, 569 F. 3d 236, 242 (5th Cir. 2010).

However, if for some reason the “plain view” doctrine does not stand up to the facts of a case, then “consent to enter” may be an alternative argument, but “the government must demonstrate that there was effective consent that was given voluntarily by a party with actual or apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

The Big Issue Before the Fifth Circuit was Whether Officers Lawfully Entered and Remained Inside of Danhach’s Warehouse While Conducting a “Knock and Talk” Interview.

Here, the Fifth Circuit agreed with the district court and affirmed judgment and sentencing, holding that law enforcement permissibly used the knock and talk technique. The Court pointed out that video surveillance is consistent with law enforcement’s account that consent was obtained before entering. Even after law enforcement entered, Danhach’s business associate gave them permission to walk around the warehouse. The stolen goods were in plain view and were immediately apparent and indicative of criminal activity. Based on this series of events, “even if any evidence cited in the warrant…was not covered by the plain-view doctrine, the record supports the conclusion that the agents asked for and received consent for a full search of the warehouse.” Danhach did not offer any evidence to show that the consent was coerced in any manner, nor did he offer any evidence that the items seized were not in plain view.

Consent to Search + Items of Criminality in Plain View = Probable Cause to Obtain a Warrant

In sum, law enforcement may ask to enter a premises without a warrant and if consent is obtained from a person who is “in charge” or who looks to be “in charge,” then that consent is sufficient according to the Fifth Circuit, citing previous cases. Once lawfully inside a dwelling or premises, if law enforcement officers see, in plain view, objects that are linked or are seemingly linked to a crime, then those items may be the basis of a warrant to seize the items and to conduct an even more extensive search.

Nov 19

3

Federal Sentence Enhanced for Presence of Dangerous Weapon Even Though the Defendant Had No Knowledge of the Weapon

By Brandon Barnett | Sentencing

Should a defendant charged with possession of drugs be punished for a “dangerous weapon” found at the scene of the drug trafficking and owned by a co-conspirator, when he did not know about the gun in the first place?

Dangerous Weapon Enhancement The Federal Fifth Circuit Court of Appeals thinks so. See the Court’s opinion in United States v. Guerrero.

On September 5, 2012, police were investigating a ranch in McAllen, Texas as a possible stash house for drug-trafficking. Officers observed Adrian Rodriguez-Guerrero coming and going from the ranch along with three other men in a caravan. When the officers stopped the caravan, “because the vehicles appeared weighed down,” a dog alerted to the presence of drugs. The police found “boxes of limes with bundles of marijuana concealed among the limes.” The defendants subsequently consented to a search of the McAllen ranch. (I’m always left wondering why people, especially those in possession of drugs, consent to a search.) “There the [police] found…clothing…a loaded shotgun and 125 shotgun shells…plastic cellophane, limes, packing tape…lime boxes, latex gloves, a large scale, and several bundles of marijuana.” In a written statement accepting responsibility, Rodriguez-Guerrero said he was hired to do landscaping at the residence, but was asked to “load the marijuana into a truck at the [ranch]…acknowledg[ing] the [ranch] as a stash house [for drugs].”

Conspiracy to Possess and Distribute Marijuana Enhanced for Possession of a Dangerous Weapon

At trial, he pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, receiving a “guidelines-range sentence of 104 months” imprisonment and four years of supervised release. His sentence included a two-level enhancement for possession of a dangerous weapon—the shotgun found at the McAllen ranch. The district court noted, “[the Court] is not finding Rodriguez-Guerrero possessed the shotgun; rather, it was reasonably foreseeable…that there would be a weapon involved in…the… drug trafficking crime.” The district court added, “the shotgun was a tool of the trade and it [is] reasonably foreseeable to [Rodriguez-Guerrero] that there would have been a weapon, especially [to] a person with the experience that he has in drug trafficking.” Rodriguez-Guerrero appeals to the Fifth Circuit Court of Appeals, stating that there was no evidence to support a finding that either he or a co-conspirator possessed the shotgun—possession which lengthened his prison sentence.

U.S. Federal Sentencing Guidelines Application When a Dangerous Weapon is a “Tool of the Trade”

The United States Sentencing Guidelines Manual provides a two-level sentencing enhancement if “a dangerous weapon was present, unless it is clearly improbable that the weapon is connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The government must prove weapon possession by a preponderance of the evidence…[and can do so] by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 F.3d 388-90.

Here, the Fifth Circuit Court reasons, the McAllen ranch was a stash house for drug-trafficking, used to “package and transport marijuana.” The ranch was a warehouse to store and move drugs, not a residence “in which drugs were also stored.” Next, several bundles of marijuana were found in the ranch’s master bathroom, making it “plausible [the Court reasons] to find that either Rodriguez-Guerrero or another co-defendant accessed the master bedroom, where the shotgun was found.” Further, the rounds of ammunition suggest that the gun was connected with the drug trade. Lastly, the gun and rounds of ammunition were found on the same day that police observed Rodriguez-Guerrero and the co-defendants at the ranch.

The Court concludes that the “facts identified by the [district] court plausibly establish a temporal and spatial relationship between the weapon, the drug-trafficking activity, and Rodriguez-Guerrero.” The purpose of the sentencing enhancement is to punish because of increased danger and violence when drug traffickers possess weapons. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The mere fact that a weapon cannot be attributable to any specific drug trafficker does not decrease the danger of violence.” Even though Rodgriguez-Guerrero may not have possessed shotgun, or that he may not have known about the shotgun is irrelevant. The Court states, “there was [sufficient] evidence to support that the weapon must have been possessed by one of the conspirators in furtherance of the conspiracy.”

In short, the Court says that establishing the “temporal and spatial” relationship is enough for possession in these types of drug trafficking cases; and, possession of a weapon could lead to enhanced, or increased prison sentences in federal courts.

Aug 29

0

Limiting Consent – Your 4th Amendment Right

By Brandon Barnett | Warrantless Search

Is it a violation of one’s Fourth Amendment rights against unreasonable warrantless search and seizure if an officer finds drugs in a vehicle through a nonconsensual search? The United States Court of Appeals for the 5th Circuit said YES in United States v. Cotton.

U.S. v. Cotton– In February 2011, Appellant was driving his rental car when he was pulled over by a police officer who had received a tip that Appellant may be carrying drugs. The officer conducted a traffic stop and asked Appellant twice for consent to search his car. Appellant replied both times that the officer could search only his luggage. After searching through Appellant’s luggage, the officer examined the driver side rear door, which had loose screws and tool marks. The officer pried back the door panel and discovered crack cocaine inside. The officer arrested Appellant who then made incriminating statements to the officer.

The 5th Circuit held that the officer impermissibly extended his search beyond the scope of the Appellant’s consent and therefore violated the Appellant’s Fourth Amendment right. According to the 5th Circuit, “when conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by consent.” Appellant’s consent allowed the officer to only search luggage in areas of the car where luggage might be found. The officer exceeded the bounds of his limited consent when, instead of only searching the luggage, he searched the entire vehicle for drugs.

The 5th Circuit compared Cotton to U.S. v. Solis, which involved an officer who unexpectedly came across heroin during a consensual search of a defendant’s bedroom. When the officer moved a cooler to use as a step, heroin was revealed. The defendant sought to suppress the evidence but the 5th Circuit held that because the cooler was moved only to effectuate the search for the gun, for which consent had been voluntarily given, the officer did not exceed the scope of the consent. Therefore, the heroin was admissible evidence.

However, in Cotton, after searching Appellant’s luggage, the officer expanded his search by examining other parts of the car. The 5th Circuit held that because the officer did not have authority to search discrete locations where luggage would not likely be found, evidence of the crack cocaine must be suppressed as the officer violated Appellant’s Fourth Amendment right.

If your 4th Amendment rights have been violated and you are facing criminal prosecution, give us a call for a free consultation. Our attorneys will aggressively defend your rights against government intrusion.

Aug 13

0

Equivocal Consent to Search is Still Consent

By ardent | Search & Seizure

Search & Seizure Update | Fort Worth Illegal Search & Seizure Attorneys

Late in the evening, two San Antonio police officers saw a truck driven by Arthur Warren. The truck matched the description of a vehicle that was suspected of transporting a large shipment of narcotics. When the officers saw Warren’s truck, they observed that the license plate on the trailer was not illuminated, and they saw the truck swerve across the median and across the double white line.

The officers stopped Warren’s vehicle. Officer Dupee testified that he saw a can of beer inside the truck. Officer Galvan asked Warren to get out of the truck, and the officers performed a field sobriety test on Warren.

The officers asked Warren if they could search the truck and trailer. Officer Dupee testified that Warren said, “Yes, go right ahead.” Officer Galvan saw something peculiar as he searched the truck and signaled Officer Dupee to handcuff Warren. Officer Dupee told Warren that he was not under arrest, but he was just being detained. Officer Dupee testified that Warren’s demeanor changed from “nice and compliant” to “upset and depressed.” Warren gave the officers the keys to a compartment where they found marijuana.

Warren testified that he did not give consent to search the truck and trailer, but rather said, “Well, you’re going to anyway.” He further testified that the officers handcuffed him only after he became upset about how they were searching the car on the trailer.

In a pre-trial motion, Warren moved to suppress the evidence (the marijuana) as a violation of his Fourth Amendment protection against unreasonable search and seizure. The trial judge denied the motion. Warren made a plea agreement and received six years deferred adjudication.

On appeal, Warren claimed that the State had failed to prove that he voluntarily consented to the search of his truck and trailer and that any consent that might have been given was tainted because Warren was detained for an extended time.

As with any appellate review of a motion to suppress, the Court of Appeals gave almost total deference to the trial court’s determination of the facts and assessment of credibility of witnesses. The Court then reviewed the trial court’s application of the law to the facts.

An exception to the Fourth Amendment protection against warrantless searches is a search where voluntary, uncoerced consent is given. The State bears the burden of proving that the search was voluntary. Warren argued that the State did not meet this burden.

The trial judge determined Officer Dupee to be credible when he stated that Warren gave consent to the search voluntarily and not under duress. Warren’s claim that he felt he had no choice but to consent was considered, but the Court of Appeals noted that case law provides for a presumption that if someone’s constitutional rights are about to be violated, the individual will assert those rights.

The Court of Appeals gave deference to the trial court’s assessment of Officer Dupee’s and Warren’s credibility and upheld the conclusion that Warren’s consent was voluntary.

As for the length of the detention, the Court noted that police cannot use a traffic stop as a “fishing expedition” to discover unrelated criminal activity. Once the purpose of a traffic stop is satisfied, additional reasonable suspicion is required for further detention. The trial court had found that the detention was initially related to the tip that narcotics were being transported in a vehicle matching the description of Warren’s truck and that Warren’s erratic driving justified the officers investigating whether he was intoxicated.

Even if the officers had satisfied their investigation of Warren’s intoxication, they were justified in continued detention due to the traffic violations they had observed and their observation of Warren’s bloodshot eyes and the beer can in the cab of the truck. Based on the officers’ testimony that Warren had consented to the search of the vehicle, the trial court found that the detention was not extended illegally. The Court of Appeals agreed that the officers had probable cause to initiate the stop, that Warren consented to the search and that the length of the detention was not unreasonable.

This case highlights two principles of Fourth Amendment law. First, while the State is required to prove the voluntary nature of a consent to search, the court is not required to accept the defendant’s position on that issue if the circumstances indicate that consent was voluntary. Second, while police officers may not extend a traffic stop to search for other possible unrelated violations, as long as the officers have reasonable suspicion of illegal activity and are investigating that suspicion, the driver can be detained until the officers’ investigation is complete.

This case reinforces our advice in previous articles…DO NOT GIVE CONSENT TO SEARCH! Make the officers get a warrant. It’s their job and your right!

Mar 21

0

Consent search Fort Worth Criminal Defense

When The Police May Search a Home Over Occupant Objection

By Brandon Barnett | Warrantless Search

Can police obtain consent from a co-tenant to conduct a warrantless search a dwelling after another co-tenant, who objected to the search, is lawfully removed?

The Supreme Court said YES in Fernandez v. California. Read more below to see what happened and when the police can search a home without a warrant over a tenant’s objection.

Fernandez v. California (2014) – Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. The officers knocked on the door and Roxanne Rojas answered. She appeared to be battered and bleeding. When the officers asked Rojas to step out so that they could conduct a search of the apartment, Fernandez came to the door and objected to the search. Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was later identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’s oral and written consent and searched the premises where he found several items linking petitioner to the robbery.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search. The trial court denied Fernandez’s motion to suppress the evidence, and he was convicted. The California Court of Appeals affirmed the conviction. It held that because Fernandez was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, did not apply, and therefore, Fernandez’s suppression motion had been properly denied.

In a 6-3 decision, the Supreme Court ruled that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected. Here, the Court said that Fernandez did not have a right to prevent the search of his apartment once Rojas had consented. Although an officer usually needs a warrant from a judge to search a home, home searches are legal whenever the officers are able to obtain consent from an occupant. According to the Court, “A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant.” Furthermore, “Denying someone in Rojas’ position the right to allow the police to enter her home would show disrespect for her independence.” The judgment of the Court of Appeals was affirmed.

Nov 22

1

Supreme Court Decision Watch: Conflicting Consent to Search

By Brandon Barnett | Search & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California. HERE is Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant. Below are the facts of the case. A link to the oral argument audio is posted below. We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building. Once they were inside the building, officers heard screams coming from one of the apartments. The officers knocked on the door and Roxanne Rojas opened it. When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter. The officers arrested Appellant for the assault and robbery and removed him from the scene. The officers obtained consent from Rojas to search the apartment. The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment. The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy. These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013. To listen to the audio from the arguments, click HERE.

*UPDATE: Supreme Court issues decision in Fernandez.

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