June 2011

Child Search Authority | Consent to Search Without a Warrant

Investigating a reported shooting, the police knock on the door to a home that is answered by an adolescent (a minor). Can the minor give the police permission to enter the home? Must the police ask whether the minor lives in the home? Should the police ask to speak to an adult? These issues were considered by the Texas Court of Criminal Appeals in Limon v. State, a case that was released a couple of weeks ago and designated for publication.

In an 8-1 decision, with Judge Womack writing for the majority, the CCA held that, while there is no per se rule that a child may or may not give consent to entry, a minor may possess apparent child search authority. The CCA cited the reasoning of the Supreme Court in the case of Georgia v. Randolph, 547 U.S. 103 (2006) and also noted five key facts that contributed to its ultimate conclusion that the minor in this case had the apparent authority to consent to entry:

1) [The minor] opened the door by himself in response to [the officer’s] knock;

2) The trial court could have inferred from [the officer’s] testimony that [the minor] appeared to be a teenager of significant maturity, if not a young adult;

3) [The minor] consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. (The reasoning being that the trial court could have believed that it was reasonable to rely on a teenager’s authority to consent to such a limited scope of entry, while it would not have been reasonable to rely on his authority to consent to a more intrusive search.);

4) The officer’s announced purpose was to conduct an emergency public-safety function; and

5) The time of entry (2 AM) could have led the trial court to believe that an individual opening the door at that hour was a resident rather than a guest.

Judge Meyers dissented, stating:

Nobody gives a teenager permission to allow strangers into their home. Yet, the majority focuses on what apparent authority the child in this case may have had to let the cops into the house a 2 o’clock in the morning. The police should presume that minors have no authority to consent to entry and should ask to speak to an adult. If no adults are available then the officers need to get a warrant (and possibly call CPS).

Here’s the scenario – man is caught entering a home through a window that he broke. A female occupant of the home comes face-to-face with him and he then runs away. Is there evidence that the man was attempting to unlawfully enter the woman’s home? Certainly. Is there evidence to support the notion that he intended to commit a theft (or other felony) therein? That’s the question.

In Gear v. State, when posed with this question, the 12th District Court of Appeals (Tyler) held that the evidence was insufficient to prove that the man intended to commit a theft or other felony on the premises. Yes, the man tried to break in and yes the man was poor, but the State simply did not prove that an attempted “burglary” had occurred.

Enter the CCA (and exit the burden of proof). The Texas Court of Criminal Appeals reversed the Court of Appeals, holding:

On this record, we decide that a factfinder could reasonably find beyond a reasonable doubt that the recently unemployed appellant with about one dollar in his pocket intended to commit theft inside the complainant’s home when he attempted to enter the home through the window that he had just broken and where the evidence also shows that appellant ran when interrupted by the complainant and that appellant gave conflicting and implausible explanations for his actions.

If you ask me, who cares what explanations appellant gave for his actions? The State must prove this specific intent crime. The burden doesn’t shift to appellant to prove his innocence. If the State doesn’t prove the specific intent to commit theft, a verdict of acquittal is required.

Judge Cochran dissented from the majority. She writes,

[The majority opinion] seems to me to be a “Don’cha know” standard; appellant broke the window and was about to climb inside, therefore “don’cha know” he intended to commit theft…Looking at all of the evidence in this case, even in the light most favorable to the trial judge’s verdict, I cannot find the evidence sufficient in quality, character, or weight…

While everyone can probably agree that the man intentions were not honorable, if the State is going to charge something, the State must prove up the charge.

Supreme Court Case Review -  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.

Here's an excerpt from the Texas Court of Criminal Appeals' majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

"Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred."

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge's ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

Yesterday, the Texas Court of Criminal Appeals released a published opinion (In Re Bowen) in an original mandamus proceeding. The relators (i.e. petitioners), two capital murder defendants, requested that the CCA direct the trial judge to rescind his order disqualifying the relators’ mutually retained counsel of choice. The State had moved that the counsel be disqualified due to a perceived conflict of interest and the fact that he would be called to cross-examine another one of his clients (a witness that the State intended to call).

The two defendants and the other client had all signed waivers regarding the actual or apparent conflict, but that did not satisfy the trial judge. In granting the State’s motion to disqualify the counsel, the trial judge stated:

It’s really about the integrity of the judicial process and the public’s perception of the judicial process and what it would look like to go to a trial on a capital murder case where the same attorney representing both defendants is also representing one of the prosecution’s witnesses.

He went on:

I know how these things play out. I’m telling you I can see some reporter that doesn’t understand diddly about what’s going on in the trial but, you know, can pick up an issue like this and make a story out of it.

Surely he doesn’t mean me. I’m confident that I at least know diddly about the system, if not more.

In the mandamus proceeding, the CCA was called upon to overturn the trial court’s order. Citing the U.S. Supreme Court case, Wheat v. United States, 486 U.S. 153 (1988), the CCA explained that trial courts “must recognize a presumption in favor of a defendant’s counsel of choice.” The CCA also noted that “when a trial court unreasonably or arbitrarily interferes with the defendant’s right to choose counsel, its actions rise to the level of a constitutional (6th Amendment) violation.”

The CCA emphasized that conflict of interest cases really turn on the facts found by the trial court. In this case, the trial defense counsel offered a sealed affidavit explaining why his mutual representation would not amount to a conflict. He did not share his reasoning in open court for fear that the State would then know what he had up his sleeve. Once the CCA examined the defense counsel’s affidavit, it was convinced that there was no conflict (especially since all parties waived any potential conflict). Accordingly, the CCA held that the trial judge had violated the defendants' 6th Amendment right to counsel and directed that the judge rescind his order.