4th Amendment

The Fifth Circuit Court of Appeals (Federal) issued an opinion on September 27, 2011 in United States v. Macias, addressing an unconstitutional search and seizure by a Trooper in Pecos County, Texas.  On November 22, 2009, Trooper Juan Barragan stopped Robert Macias, Jr. for failure to wear his seatbelt.  Upon stopping the defendant, Trooper Barragan started asking him questions.  His initial questions dealt with common issues such as the defendant’s purpose for traveling and the defendant’s lack of insurance.  As time went on Trooper Barragan began asking more and more questions unrelated to the reasons he stopped the defendant in the first place.  After his initial questions, the trooper asked the defendant about his employment and the specific reason he was traveling to see a doctor.  The trooper also repeated questions that the defendant had already been asked and had answered.  The initial exchange between the two took approximately two minutes.

After the initial exchange, the trooper asked the defendant to come back to his patrol car with him.  The trooper then began to ask the defendant another series of questions.  Trooper Barragan asked if the defendant had his “own little company” and if he had ever “been in trouble before.” This second series of questions lasted approximately one minute.  The trooper then went back to the defendant’s vehicle (it was actually he defendant’s sister’s vehicle) and asked the defendant’s passenger a series of questions regarding her relationship with the defendant and the purpose of their trip.  Two more minutes elapsed during this series of questions.  The trooper then went back to the defendant and asked him more questions at which point he elicited from the defendant that he had been previously imprisoned for an attempted murder conviction.  The trooper then told the defendant that he was going to go back to his patrol vehicle and write him a citation for failure to wear his seatbelt.  Eleven minutes elapsed from the time that the defendant had been pulled over to the time that he received the citation.

Ten minutes after returning to his patrol car, the trooper returned to the defendant and gave him the citation.  The defendant signed the citations.  Then, just as the trooper was about to leave, he asked the defendant for consent to search his vehicle.  The defendant protested that there was nothing in the vehicle, but he ultimately gave consent to search the truck after his protestations were met by the trooper noting that the defendant has a “shady” background.  Seventeen minutes after he began the search of the truck, and forty-seven minutes after initiating the stop, Trooper Barragan found an unloaded firearm and ammunition in a closed bag belonging to the defendant.

A grand jury indicted Macias for being a felon in possession of a firearm.  Macias moved to suppress the firearm as fruits of an unconstitutional detention.  The district court denied Macias’s motion to suppress and Macias entered a conditional plea of guilty with the option to appeal the district court’s denial.

The Fifth Circuit analyzed the legality of the stop based on the traditional Terry v. Ohio analysis.  392 U.S. 1 (1968).  The Court first looked to whether the Terry stop of the vehicle was justified at its inception and then whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.  Macias conceded that the stop was valid, but that the Trooper exceeded the scope of the stop when he asked questions unrelated to the purpose and itinerary of the trip.  Macias argued that these questions impermissibly extended the duration of the stop without developing reasonable suspicion of additional criminal activity.

The Court cited various cases including United States v. Pack, 612 F.3d 341 (5th Cir.), which held that an officer may ask questions on subjects unrelated to the circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop.  Macias’s argument was that the Trooper’s actions after the stop unconstitutionally extended the duration of that stop.  Macias specifically noted that the trooper ran computer checks, engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose of the itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. The Fifth Circuit agreed.

The Fifth Circuit noted that the only evidence that the trooper could point to that might lead to reasonable suspicion of additional criminal activity was Macias’s extreme nervousness.  It held that extreme nervousness in and of itself was not sufficient to support the extended detention.

The Fifth Circuit ultimately concluded that the search of the truck violated the Fourth Amendment (Terry Stop prohibitions) and that all evidence resulting from that search should have been suppressed.  Macias’s judgment of conviction was reversed and vacated and the case was remanded for entry of judgment of acquittal.

The case contains a lot of applicable case law (a horn book in itself) for attorney’s practicing in the Fifth Circuit in regards to Fourth Amendment searches and seizures.

I love technology - from tablet computers to smartphones to flat-screen televisions.  If it's shiny and new and guaranteed to make me the envy of my friends and family, I'll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we've lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother's truck to track its movements.  Hernandez was arrested while driving his brother's truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother's vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents' use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80's and 90's.  Accordingly, the Court upheld the trial court's denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

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).

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.

Driver cannot give consent to search a passenger's private bag.

is an interesting case with 4th and 5th Amendment issues coming out the Fifth Circuit. Of course, it’s an unpublished opinion, so it has no precedential value, but it’s a good case on federal criminal procedure.

The Fifth Circuit Court of Appeals (Federal) held that an officer’s warrantless search of Appellant’s handbags, during a traffic stop, violated the Fourth Amendment. Although the driver consented to search of the vehicle, he had neither the actual nor the apparent authority to consent to a search of his passenger’s property. The officer had no authority to search inside Appellant’s closed bags without her consent, which he neither sought nor obtained, and he knew the bags he was searching belonged to her.

After Appellant’s arrest, while being transported to jail, she made incriminating statements to the officer, without having been properly Mirandized. Approximately 4.5 hours later, DEA agents met with Appellant, Mirandized her, obtained a valid waiver and obtained a written confession from her.

The court held that the DEA interrogation and resulting confession were not tainted by the arresting officer’s earlier Miranda violation while transporting Appellant to the jail. There was little continuity between the two interrogations. The arresting officer asked his questions in his patrol car, while different personnel working for a different agency conducted the later DEA interview in a different location. There was a 4.5-hour break between the two interrogations and the DEA agents, in their interview, did not exploit or refer back to Appellant’s earlier statements.

Additionally, the court refused to suppress Appellant’s written confession to the DEA agents based on the arresting officer’s illegal search of her bags. The court held that the illegality of the search was clear however, the connection between the evidence it produced and Appellant’s confession to the DEA agents was weak. There was nothing to indicate that the discovery of a small amount of marijuana in the bags compelled Appellant to confess to possession of a large quantity of cocaine later found hidden in the vehicle. Further, Appellant was provided Miranda warnings, interviewed by different officers from a different agency and approximately seven hours had passed between the search of Cantu’s purse and the receipt of her written confession.

The full circumstances of the DEA interrogation served to purge the taint of the earlier illegal search.