Consent to Search

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?

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.

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.

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!

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.

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.