March 2013

United States v. Gonzalez-Garcia, 2013 U.S. App. LEXIS 3366 (5th Cir. Tex. Feb. 15, 2013)

A federal agent saw Appellant walk out of a house under surveillance as part of a drug investigation.  The agent approached Appellant, handcuffed him and placed him in his police vehicle.  Without advising Appellant of his Miranda rights, the agent asked him if he was guarding a drug-house and if there were drugs in the house.  Appellant replied, "Yes" to both questions and then requested an attorney.  The agent asked Appellant for consent to search the house, which Appellant granted.

The agents found over two thousand kilograms of marijuana in the house. The district court suppressed Appellant's admissions that he was guarding marijuana in the house because they were obtained in violation of Miranda, which the government conceded on appeal.  However, the district court refused to suppress the marijuana recovered from the house.

First, Appellant argued the marijuana should have been suppressed because the agent obtained consent to search from Appellant after he requested an attorney.  Second, Appellant claimed the agents' use of his admissions, which were later suppressed, automatically rendered his consent to search involuntary. The Court disagreed.

In Edwards v. Arizona the Supreme Court held when an accused invokes his right to counsel, he is not subject to further questioning until counsel has been made available to him.  However, a violation of the Edwards rule does not require suppression of physical, non-testimonial evidence.  Consequently, even if the agent violated Edwards when he asked Appellant for consent to search the house, that violation would not justify suppression of the marijuana, which is physical, non-testimonial evidence.

Next, the court held Appellant's consent was not automatically rendered involuntary because his Miranda rights were violated.  Such a rule is not consistent with the multi-factor approach courts must use when determining voluntariness.  Using that approach, and considering the Miranda violation, the district court found Appellant voluntarily consented to the search of the house.

The Court of Criminal Appeals does not like dog scent lineup evidence.  While it has not come right out and declared such evidence categorically inadmissible (like polygraph evidence), it seems pretty close.  With each new dog scent lineup case, we learn how unreliable this type of evidence can be.

In Winfrey v. State, the CCA overturned a capital murder conviction wherein the evidence included a dog scent lineup.  The Court noted that the dog scent lineup along with the remainder of the evidence (all of it circumstantial) was only enough to raise a "suspicion of guilt," but not enough to prove guilt beyond a reasonable doubt.  The CCA overturned the conviction as being legally insufficient.

*Anytime we have a case involving a drug dog, we employ an expert consultant to review the dog handling technique of the officer. One of the best drug dog experts in Steve Scott with Scott's Police K9 LLC in Flower Mound, Texas.