Searching for Evidence or Community Caretaking?

U.S. v. McKinnon, 2012 U.S. App. LEXIS 7806, May 8, 2012

An officer stopped the car Appellant was driving because it had an expired registration sticker.  The officer arrested Appellant after he could not produce a valid driver’s license.  Based on the Houston Police Department’s (HPD) towing policy, the officer ordered the car to be towed.  During the “inventory search,” the officer found a handgun under the driver’s seat.  At trial, Appellant moved to suppress the handgun as being the fruit on an unlawful search in violation of the Fourth Amendment, arguing that:

[the officer’s] inventory search violated his Fourth Amendment rights because (1) the inventory search was merely a pretext for searching for evidence related to the burglaries that had recently taken place in the neighborhood where McKinnon was stopped; and (2) the inventory search was conducted pursuant to a policy that provided HPD officers with impermissible discretion in deciding when to tow a vehicle.

The trial court denied the motion.

The Supreme Court has recognized that the police may seize vehicles without a warrant in furtherance of their “community caretaking” function.  This usually occurs when officers impound damaged or disabled vehicles or vehicles that violate parking ordinances or impede the flow of traffic.  As long as an officer’s decision to impound a vehicle for community caretaking purposes is reasonable, it will not violate the Fourth Amendment. 

Here, the court held that the officer’s decision to have the car towed was reasonable under the Fourth Amendment.  It was undisputed that the neighborhood in which the stop occurred had experienced a series of burglaries.  Although these were house burglaries, there was nothing to suggest that the vehicle would not have been stolen or vandalized if left parked and locked at the scene.  By impounding the car, the officer ensured that it was not left on a public street where it could have become a nuisance or where it could have been stolen or damaged. 

In addition, while one of the passengers possessed a valid driver’s license, the car’s registration sticker was expired, so it could not have been lawfully driven away from the scene.  Finally, the HPD tow policy provides for the towing of vehicles when the owner is not able to designate a tow operator to remove the vehicle and no other authorized person is present.  The registered owner of the vehicle was not present to designate a tow operator and there was nothing to suggest that she had authorized either of the two passengers, who were present, to operate her car.

The Court further held that HPD’s inventory search policy was constitutional.  By its clear terms, the policy is consistent with preserving the property of the vehicle’s owner while ensuring that the police protect themselves against claims or disputes over lost or stolen property and protecting the police from danger.

Community caretaking...Hmmm.  Seems like alot of things could fit under that title.  I suppose that is the point.

Attenuating the Taint

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

     1. The temporal proximity of the arrest and the confession;
     2. The presence of intervening circumstances; and
     3. The purpose and flagrancy of the official misconduct (in making the arrest).

In State v. Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

This opinion was a tease.  I read all 29 pages expecting a certain outcome and then the CCA (by a 5-4 vote) pulled the rug out from under me in the final two paragraphs.  Apparently, I wasn’t the only one that felt this way.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

While it is beneficial for the CCA to create precedent where none previously existed, if it cannot apply that precedent to the facts of the case correctly, what good is it?

Warrantless Search of Cell Phone Text Messages

Can an arresting officer search a person’s text messages as a “search incident to arrest?” The U.S. Court of Appeals for the 5th Circuit said YES in U.S. v. Curtis, but caveats that the search in the case occurred prior to the Supreme Court holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).

U.S. v. Curtis - In July 2007, officers obtained an arrest warrant for Appellant after he made a false statement on a credit application he submitted to a car dealership. (Seriously?) When the officers arrested Appellant he was driving his vehicle and talking on his cell phone. After he pulled over, Appellant placed the cell phone on the car’s center console. An officer took the phone out of the car and began looking at the text messages on it. Later, while Appellant was being processed at the jail the officer resumed looking at the text messages on the cell phone.

The 5th Circuit held that the search of the cell phone was constitutional since it took place incident to a lawful arrest and it was within Appellant’s reaching distance when the officers arrested him. The court followed U.S. v. Finley, 477 F.3d 250 (5th Cir.), which held that the police could search the contents of an arrestee’s cell phone incident to a valid arrest when it is recovered from the area within an arrestee’s immediate control.

Appellant argued that the officer’s search of the cell phone was unlawful in light of the Supreme Court’s holding in Gant, decided in 2009, which held in part that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of arrest.”

The court refused to apply the rule announced by Gant to a search incident to arrest that occurred before Gant was decided. Additionally, the court stated that even if it had ruled the search of the cell phone was unlawful, it would have refused to suppress the text messages under the good-faith exception to the exclusionary rule. The court noted that the good-faith exception applies to searches that were legal at the time they were conducted, but later determined to be unconstitutional by a subsequent change in the law.

My question is: Why did the officer feel he needed to search Appellant’s text messages? I’m pretty sure the iPhone does not have an app that turns the phone into a dangerous weapon. There should be no reason that the officer needed to conduct such a warrantless search. Luckily, however, this holding is narrow in that it appears that it does not apply to searches conducted after the Supreme Court decision in Gant.

Playing Catch-Up

While most of my recent focus has been on Texas Court of Criminal Appeals opinions, I have not been completely neglecting the various Courts of Appeals.  Below are some of the recent cases that were designated for publication by 1^st, 4^th, and 14^th District Courts of Appeals.   

Mims v. State, 1^st District Court of Appeals (Houston), 14 October 2010:

Appellant was convicted of first-degree arson and, after the court found that he used a deadly weapon (Fire), he was sentenced to 50 years in prison.  Appellant challenged the deadly weapon finding, arguing that fire cannot be a deadly weapon because it is not a tangible object and because it is one of the elements of the charged offense.  The Court held that

[A]lthough fire is not a physical object in the same sense as a gun or a knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion-namely, light, flame, and heat.  [F]ire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court also held that the same conduct that supports an element of an offense can also serve to support a deadly weapon finding.  Having rejected both of Appellant’s arguments, the Court affirmed the conviction.

Escamilla v. State, 4^th District Court of Appeals (San Antonio), 13 October 2010:

The Court held that the child victim (3 years and 9 months old) was competent to testify regarding sexual abuse by her father.  The Court also held that the trial court did not abuse its discretion by admitting testimony of the Sexual Assault Nurse Examiner (SANE) regarding methods of determining anal sexual assault.  Justice Hilbig concurred in the result, but dissented regarding the admissibility of the scientific evidence provided by the SANE.

Pham v. State, 14^th District Court of Appeals (Houston), 14 October 2010:

The Court held that appellant had no objective expectation of privacy in a bag of ecstasy pills that he delivered to an accomplice for eventual delivery to a third party.  As such, appellant had no standing to challenge the seizure of the drugs from the accomplice or the later admission in court. 

The GANT Exception

Last year the Supreme Court dealt law enforcement a great blow with its holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Court eliminated the automatic search of a vehicle incident to arrest, holding:

A search incident to arrest is unreasonable if it occurs after the person who is arrested has been secured and cannot access the interior of the vehicle.  

The Court, however, did not foreclose all possible searches of a vehicle incident to arrest in those instances when the arrestee is no longer within reach of the vehicle.  The Court provided an exception for "those situations when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle."  It was this exception on which the 11th District Court of Appeals (Eastland) relied to uphold the search of a passenger's purse in Daves v. State.

In Daves, the driver of a vehicle in which Appellant was a passenger was pulled over for running a stop sign.  The police officer noticed the smell of alcohol on his breath and directed that the driver perform a field sobriety test.  Confident in his abilities, the driver made a foolish mistake.

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands.  As Large was attempting to perform that task, various items began to fall from his pockets.  One of those items was a purple marihuana pipe.

Upon seeing the pipe, the driver was handcuffed and arrested for possession of drug paraphernalia.  After the police officer placed the driver in the back of the squad car, he proceeded to search the vehicle for additional evidence of drug paraphernalia.  The Gant exception!  The officer searched the driver side, the passenger side, including compartments therein, and then searched the passenger's (appellant) purse.  In Appellant's purse, the officer found a small baggie of marijuana.  He also found a baggie of cocaine between the seats.  Appellant (who was the actual owner of the vehicle) was later convicted of possession with intent to distribute 1 gram of cocaine.

In her appeal, Appellant argued that the search violated the 4th Amendment.  Citing, you guessed it, the Gant exception, the 11th Court held that the search of the vehicle, including Appellant's purse, was permissible.

Spread 'Em!

Anonymous informant calls Houston County police officer with a tip that the suspect is traveling toward Houston County with drugs concealed in his anus.  Suspect is located and arrested, albeit on child support warrants.  Now that he is under arrest, may he be subjected to a visual body cavity search for drugs?

The Supreme Court has instructed that a "search incident to arrest authorizes the police to conduct 'a full search of the person.'"  U.S. v. Robinson, 414 U.S. 218 (1973).  However, the Texas Court of Criminal Appeals has noted that visual body cavity searches are among the most intrusive of searches and the Supreme Court did not hold that all searches incident to arret are per se reasonable.  What to do?  Ah, yes, bring in the balancing test.  The CCA has provided, based in its interpretation of Supreme Court precedent, that the following four factors are to be considered in determining the reasonableness of a search:

1. The scope of the particular intrusion;
2. The manner in which it is conducted;
3. The justification for initiating it; and
4. The place in which it is conducted.

McGee v. State, 105 S.W.3d 609.  But really, the entire balancing test hinges on #3, the justification for the search.  In our anonymous tip case, the police needed more than just the tip in order to conduct a visual body cavity search.  Incidentally, they had more because this particular suspect was already on their radar for drug distribution.  That, coupled with the anonymous tip, concluded the 6th District Court of Appeals (Texarkana), was enough to justify the intrusive search. 

I left a lot of good stuff out, but you can read more about this case HERE. 

What if Your Objection Contrasts with Well-established Caselaw?

What should you do if your objection to evidence clearly contrasts with well-established caselaw?  Should you make your objection anyway, knowing full-well that it goes against current precedent?  If so, do you couch your objection in policy or fairness terms, hoping that the court will simply decide to depart from the current state of the law?  Or do you sit back and make no objection at all?

According to the 4th Court of Appeals (San Antonio), you must make any and all objections to the admission of evidence at the trial court (whether the objection follows or contrasts with current precedent).  This is not a novel concept as the general rule is well-established, but it becomes much more interesting when you consider a case like Bishop v. State, 04-08-00693-CR. (Sorry link down, will try to post later).

In Bishop, the defendant did not object at trial to the admission of evidence which was seized from his glove compartment as a search incident to arrest.  At the time of the search, the defendant was in custody in the backseat of a patrol car and could not gain access to his vehicle.  The defendant's counsel did not object at trial because this type of evidence (that seized from a glove compartment as a search incident to arrest) is routinely admitted under the Supreme Court holding in New York v. Belton, 453 U.S. 454 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant's lawful arrest) and the Texas Court of Criminal Appeals' holding in State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999).  As a result the defendant was convicted at trial.

Between the time of the conviction and appeal, the Supreme Court issued its opinion in U.S. v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant's arrest  to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Based on this new caselaw, the defendant argued (for the first time) on appeal that the seach of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car.

Rather than recognize the blatant unreasonable search, the 4th Court of Appeals simply punted the issued on procedural grounds by holding that the issue cannot be raised for the first time on appeal.  So in essence, what the court is saying is that litigants need to make any and all objections at trial even though they may conflict with well-established caselaw.  I would put in the disclaimer that you probably should not make frivolous objections, but if you have an honest, conscientious objection to evidence, even if only based on policy or fairness, make it!