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Michael Lowe is Board Certified in Criminal Law by the Texas Board of Legal Specialization

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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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