Trial Court May Reopen a Suppression Hearing

In 1996, the Texas Court of Criminal Appeals held in Rachal v. State, 917 S.W.2d 799, that when reviewing a trial court’s decision on a motion to suppress, an appellate court should look “only to the evidence adduced at the suppression hearing,” unless the “suppression issue is consensually re-litigated by the parties during trial on the merits.”

In a recent case in the CCA, the Appellant, Gary Lyn Black, who was convicted at trial of possession of methamphetamine with intent to deliver, argued on appeal that:

a trial court, once it has ruled on a pretrial motion to suppress, lacks the authority to “re-open” the suppression issue unless the defendant has “made an election” to do so by either subsequently re-raising the suppression issue himself or acquiescing in the State’s reintroduction of the issue at trial.

Appellant relied on the CCA’s holding in Rachal to support his position.  The State countered by arguing that the Rachal holding “speaks only to a limitation on what is available for appellate review of a trial court’s ultimate ruling on a pretrial suppression motion,” and not to the trial court’s authority to re-open a suppress motion.  The CCA agreed with the State.

In an 8-1 decision that relied largely on a 1993 Court of Appeals opinion (Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993, no pet.)), the CCA explained:

A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial.

In Black’s case, the CCA went on to hold that the trial court had the discretionary authority to reopen the suppression hearing, even mid-trial, to allow the State to present additional evidence.  To clarify that its current holding in Black did not disturb previous precedent, the CCA expressed a general rule and a corollary rule that explain what evidence appellate courts should consider when reviewing motions to suppress.

GENERAL RULE: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing – the evidence that was before the court at the time of its decision.

The exception to the General Rule, the CCA provided, was “if the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider” that evidence in gauging the propriety of the trial court’s ruling on the motion to suppress.

COROLLARY RULE: If at any point before the conclusion of final arguments at trial, the trial court should exercise its discretionary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ultimate ruling on the motion to suppress.

The CCA affirmed the holding of the 10th Circuit Court of Appeals which affirmed the trial court’s judgment.

Judge Meyers dissented, and is of the opinion that the trial court erred by reopening the suppression hearing without the defendant’s consent.

Limits of the 4th Amendment in an iPhone Culture

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person's cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out.

U.S. v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

CCA Upholds DWI Search Warrant, Overturns Lower Courts

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed. See our prior coverage HERE.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

Come and Knock on Our Door

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 the apparent authority to consent. 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).

What's Behind Door Number 1?

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. 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.

Courts Should Not Apply Strict Rules of Grammar and Syntax When Reviewing Search Warrant Affidavits

“On Sunday, he advised me that he had been in Russia” is not the same as “He advised me that he had been in Russia on Sunday.”

The Court of Criminal Appeals considered a similar ambiguity in an Affidavit for a search warrant in State v. McClain. The Affiant stated in the affidavit, “In the past 72 hours, a confidential informant advised” the defendant had been seen in possession of Meth. Without more, this purports to state that the informant provided the information in the past 72 hours and DOES NOT state when the informant actually observed the behavior – a critical piece of information, indeed.

The trial court found the affidavit deficient and suppressed the evidence that was seized during the search. The 7th District Court of Appeals (Amarillo) affirmed. The CCA now reversed the Court of Appeals, holding that the search warrant based on this affidavit was proper.

The CCA cautions trial courts not to view such affidavits in a “hypertechnical” manner.

Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search warrant, the United States Supreme Court has provided incentives for law-enforcement officials to obtain warrants instead of conducting warrantless searches. One incentive is a less-strict standard for reviewing the propriety of a search conducted pursuant to a warrant. In this situation, courts must give great deference to the magistrate’s probable-cause determination.

The CCA, with the exception of Judge Johnson who dissented, held that the lower courts violated the prohibition on hypertechnical review of warrant affidavits when it strictly applied rules of grammar and syntax in its analysis. The CCA further held:

Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner. And reviewing courts should defer to all reasonable inferences that the magistrate could have made.