November 2013

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.

Having a sick child can be a scary thing. Especially when you can't figure out why they are sick. In this case, neither the school nurse nor the stepmother could figure out why the child was complaining. Read what happened.

In Britain v. State, the complainant, eight-year-old Sarah Brasse, went to her school nurse's office complaining of a stomachache.  During her first visit, the nurse had her lie down for a little while and then sent her back to class.  Sarah returned two more times to the nurse's office, visibly uncomfortable and crying.  After conducting a physical exam, which showed no abnormalities, the nurse decided to send her home.

The appellant, Sarah's stepmother, picked her up. Later that evening, Sarah began vomiting and developed diarrhea.  Around six p.m. the next day, the appellant found Sarah dead.  Rigor had already set in by the time paramedics arrived, but appellant reported having checked on her only fifteen or twenty minutes before.  The emergency-room doctor estimated that the time of death was around three p.m.  Acute appendicitis was the cause of death.

A jury convicted appellant of manslaughter and injury to a child for recklessly causing the death of her stepdaughter.  The Court of Appeals held there was insufficient evidence that the appellant was "aware of but consciously disregarded a substantial and unjustifiable risk" as required to prove recklessness.  The Court of Appeals reversed the trial court's decision and acquitted appellant on both counts.

The Texas Court of Criminal Appeals granted the State's petition for discretionary review to answer one question: Should the Court of Appeals have reformed the verdict to the lesser-included offense of criminally negligent homicide rather than rendering a verdict of acquittal?

The CCA affirmed the Court of Appeal's rendering. To prove that the appellant acted negligently, the State would have had to show beyond a reasonable doubt that the appellant ought to have been aware of the substantial and unjustifiable risk posed by not taking Sarah to a doctor and that such a failure was a gross deviation from the standard of care than any ordinary person would have exercised.  The State failed to meet this burden.  Because there was no evidence concerning the standard of care an ordinary person should be held to or that showed the appellant should have been aware of the risk to Sarah, the State failed to prove beyond a reasonable doubt that the appellant acted with negligence.  Therefore, the Court of Appeals did not err in rendering a judgment of acquittal.

While many parents would have probably taken the child to the doctor, the Court of Appeals simply could not hold that the stepmother committed a crime by not doing so.

The Legality of Drug-Sniffing Dog Searches

Let's face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I'm not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man's front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment "search" requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines's front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court's decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines's home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers' behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home "by the front path, knock promptly, wait briefly to be received, and then leave," it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government's use of trained police dogs to investigate the home and its immediate surroundings was a "search" within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott's Police K9 in North Texas.