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The Texas and United States
Constitutions guarantee certain protections against
governmental intrusion in our lives. Many times
Mr. Lowe is called upon to assert those rights
on behalf of his clients against unlawful state
intrusions. The following article is intended
to be a summary application of both Federal and
Texas state law concerning warrantless Search
and Seizure with regard to vehicles, luggage
at the airport and homes. This article is only
intended for informational purposes and is not
legal advice for any particular case.
SEARCHING VEHICLES
a.. Inventory
An officer has arrested an individual
who was driving a car. Now that he is taking
this person to jail, what does he do with the
person's car? If the decision is to have the
vehicle towed to an impound facility, the officer
wants to protect himself from liability for any
property that may be left in the vehicle. Therefore,
the officer is going to inventory the car. Inventory
searches "help protect the police department
from false claims of theft, and they protect
the property itself from unauthorized interference
or pilferage."Moberg v.
State, 810 S.W.2d 190,
193 (Tex. Crim. App. 1991).
In South Dakota v. Opperman,
428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000
(1976) the Supreme Court upheld the practice
of police securing and inventorying an automobile's
contents pursuant to a standard procedure when
an automobile was impounded. The procedures,
the Court stated, were developed to protect the
owner's property while it was in police custody,
to protect the police against claims or disputes
over lost or stolen property, and to protect
the police against potential danger. However,
before any need arises to inventory the contents
of an automobile, there must be a lawful impoundment.
The Supreme Court stated Opperman: "The (police)
were indisputably engaged in a care taking search
of a lawfully impounded automobile. The inventory
was conducted only after the car had been impounded
for multiple parking violations. The owner, having
left his car illegally parked for an extended
period and thus subject to impoundment, was not
present to make other arrangements for the safekeeping
of his belongings. The inventory itself was prompted
by the presence in plain view of a number of
valuables inside the car. Therefore, before an
inventory search can be upheld as lawful, there
must be an inquiry into the lawfulness of the
impoundment."
An automobile may be impounded if the driver
is removed from his automobile and placed under
custodial arrest and no other alternatives are
available other than impoundment to insure the
protection of the vehicle. Evers v. State, 576
S.W.2d 46 (Tex.Cr.App.1978); Christian v. State
592 S.W.2d 625 (Tex.Cr.App.1980).
b. Searching a Vehicle
There is no requirement for a search warrant
when there is probable cause to believe that
contraband is located within a vehicle. Fourth
Amendment jurisprudence has recognized "a necessary
difference between a search of a store, dwelling
house, or other structure . . . and a search
of a ship, motor boat, wagon or automobile, for
contraband goods . . . ." Carroll v. United States,
267 U.S. 132, 153, 45 S. Ct. 280, 285, 69 L.
Ed 543, 551, (1924).
The Supreme Court in Maryland
v. Dyson, 527
U.S. 465, 144 L. Ed.2d 442, 119 S. Ct. 2013 (1999)
reaffirmed earlier decisions, Pennsylvania
v. Lebron, 518 U.S. 938 (1996) and U.S.
v. Ross,
456 U.S. 798 (1982) in holding that there is
no exigency requirement for searching a vehicle
without a warrant. As long as probably cause
exists that the vehicle contains contraband,
a warrantless search is permissible. The Texas
Court of Criminal Appeals has adopted the same
rule in Guzman v. State, 959 S.W.2d 631 (Tex.
Crim. App. 1998).
Probable cause for the search can be based on
several factors. The odor of marijuana coming
from the car, Isam v. State, 582 S.W.2d 441,
444 (Tex.Cr.App. 1979), information from a confidential
and reliable informant, Harris
v. State 486 S.W.2d
88 (Tex.Cr.App. 1972), or contraband which is
in plain view during a vehicle stop, Clark
v. State, 548 S.W.2d 888 (Tex.Cr.App. 1977).
The scope of a warrantless search based on probable
cause is no narrower B and no broader B than
the scope of a search authorized by a warrant
supported by probable cause. Only the prior approval
of the magistrate is waived; the search otherwise
is as the magistrate could authorize. The officer
is permitted to look within any area of the vehicle
and within any container within the vehicle as
long as the contraband that he is looking for
could fit within the area or container. A simple
way of looking at this issue is comparing the
search of a house to the search of a car. Assuming
there is probably cause to search a car for drugs,
where could you look? Anywhere in the car that
drugs could be found. What if the glove box is
locked and there is no key? Well, what if the
back bedroom door was locked when you executed
a search warrant for drugs in a house? The officers
would force the door open to the bedroom to complete
the search. The same rule applies in searching
the car. You do not have to stop and get a search
warrant in order to force the locked glove box
open anymore than you would get a second search
warrant to force the door open in the house.
What if there is luggage in the trunk? Can you
open it, without now having to get a search warrant?
Use the same approach. If officers were executing
a narcotics search warrant in a house and they
had locked luggage in the closet, would they
have to get a second search warrant to open it?
No, they would not. If the contraband that they
are searching for could fit into the luggage,
they have a right to open it and search for the
drugs.
LUGGAGE AT THE AIRPORT
Fred Smith arrives on a flight from New York.
As his bag is taken from the cargo area of the
plane, a drug dog alerts. The handler determines
from the actions of the dog that the odor of
controlled substances is coming from that bag.
Smith is standing by the baggage carousel and
he appears very nervous. His bag continues to
travel around the carousel as he looks in every
direction. Suddenly, he grabs his bag and hurries
towards the exit door. Officers walk up and detain
him. They take possession of the bag and ask
for Smith's consent to search. He refuses. Can
they search the bag without a warrant?
The answer is "no". The "Carroll Doctrine" applies
to vehicles, but not to luggage, unless that
luggage is in a vehicle. If an officer has probable
cause to believe that the luggage contains contraband,
he has the right to approach the person, briefly
detain him and seize the bag. But, he must get
consent from the person or a search warrant before
he can search the bag. See Florida
v. Bostick,
115 L. Ed. 2d 389, 111 S. Ct. 2382, 2386 (1991).
Does the situation change if the defendant places
the bag into a vehicle and starts to drive off?
In California v. Acevedo, U.S., 111
S. Ct. 1082, L. Ed.2d, 49 Cr. L. 2210 (U.S. May
30, 1991) the Supreme Court held that the "Carroll
Doctrine" extends to every container within a
vehicle that could hold the contraband you are
looking for. It makes no difference if the officer
knew, before the bag was
placed in the car, that
he had probable cause to believe it contained
contraband, or if he had probable cause to believe
that there was contraband somewhere in the car,
he just did not know where, the rule is the same.
The officer can search the car and open any closed
containers found in the car as long as the contraband
could fit within the container. This case overruled
United States v. Chadwick, 433 U.S. 1, 97 S.
Ct. 2476, 53 L. Ed. 2d 538 (1977) and Arkansas
v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 71
L. Ed. 2d 235 (1979).
SEARCHING HOUSES, OFFICES AND BUILDINGS WITHOUT
A WARRANT
There are few occasions when a residence, office
or building can be searched without a search
warrant. The burden rests on the State to show
the existence of such an exceptional situation.
Chimel v. California, supra, 395 U.S. (752) at
762, 89 S. Ct. (2034) at 2039, 23 L. Ed. 2d 685;
United States v. Jeffers, 342 U.S. 48, 51, 72
S. Ct. 93, 95, 96 L. Ed. 59; McDonald
v. United States, 335 U.S. 451, 456 69 S. Ct. 191, 193,
93 L. Ed. 153.
A few situations that the courts have recognized
as justifying a search of a house without a warrant
are:
(1) consent;
(2) response to an emergency;
(3) hot pursuit of a fleeing felon;
(4) contraband in the process of being destroyed;
(5) contraband about to be removed from the
jurisdiction.
Consent:
The question of whether an individual has voluntarily
consented to a search can be answered by examining
the relevant circumstances to determine if he
has been coerced while the waiver of trial rights
turns on the extent of the individual's knowledge.
It is not necessary that an officer advise an
individual of his right to refuse to consent
before obtaining a valid consent for knowledge
of a right to refuse to consent to a search is
not a prerequisite of a "voluntary" consent.
Assuming that the consent was given voluntarily,
the next issue is whether the person had the
authority over the property to consent to its
search. The consent of one who possesses common
authority over premises or effects is valid as
against the absent, non-consenting person with
whom that authority is shared, Frazier
v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed 2d 684
(1969).
In reviewing the facts surrounding the consent
to search, look for the following factors:
1. Consent must be obtained from an individual
with an expectation (although not exclusive)
of privacy in the place searched;
2. The consenting individual must understand
the circumstances and voluntarily waive his constitutional
right to privacy; and
3. The place searched must be within the contemplation
of the consenting individual.
Response to an Emergency:
A warrantless entry into a home is justified
in the event the police had reason to believe
that a person was dying or otherwise in need
of immediate aid. See United States v. Barone,
330 F. 2d 543 (2d Cir. 1964); Wayne
v. United States, 115 U.S.App.D.C. 234, 318 F 2d 205 (1963).
This is a recognized exception to the warrant
requirement. Further, a search of a person found
in an unconscious condition is reasonable and
necessary for the purposes of identification
and possible discovery of a medical history carried
on the person. See Perez
v. State, 514 S.W.2d
748 (Tex.Cr.App. 1974), Janicek
v. State, 634
S.W.2d 687 (Tex.Crim.App. 1982). While the emergency
doctrine may justify the initial entry into a
house, the purpose of the exception is to aid
a person in distress. Once that crisis is contained,
further searching of the residence for contraband
in not permitted. Should the officer see contraband,
in plain view, he would have the right to seize
it. But, searching for additional contraband
requires a search warrant or a valid consent
to search.
Hot Pursuit:
In Warden v. Hayden, 387 U.S. 294, 18 L. Ed.
2d 782, 87 S. Ct. 1642 (1967), the
Supreme Court held the entry into a house by
officers in pursuit of an armed robber was justified
because any delay to secure a warrant would place
the lives of others in danger.
Four circumstances should be present when officers
enter a home, without consent or warrant, to
search for an individual or weapons:
1. The offender might escape if the police do
not make an immediate entry;
2. The offender has demonstrated that he poses
a danger to the community;
3. The offender has been pursued into the house
continuously from the crime scene; and
4. The warrantless arrest would
be lawful if accomplished in a public place but
cannot because of the suspect's election to retreat
into a private place.
Contraband or Evidence About to be Destroyed
or Removed from Jurisdiction:
Situations creating
exigent circumstances usually include factors
pointing to some danger to the officer or victim,
an increased likelihood of apprehending a suspect,
"or the possible destruction or removal of
evidence." McNairy
v. State, 835 S.W. 2d 101,
107 (Tex.Crim.App.1991).
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