March 2017 Texas Law Enforcement Handbook Monthly Update is published monthly. Copyright 2016-2017 W. Spencer. No claim is made regarding the accuracy of official government works or copyright of same. Educational purposes only. Does not constitute legal advice. No reproduction outside TPCA membership without written consent. TEXAS ATTORNEY GENERAL ISSUED AN OPINION STATING A SEARCH WARRANT AFFIDAVIT IS PUBLICLY AVAILABLE WHEN THE AFFIDAVIT IS SIGNED AND SWORN TO BEFORE THE MAGISTRATE The Texas Atty. Gen. was recently asked whether a search warrant affidavit is executed and thus public information for purposes of article 18.01 (b) of the Code of Criminal Procedure when the affidavit is signed and sworn to before the magistrate or when a peace officer executes the search warrant. The Atty. Gen. stated: we recognize legitimate policy reasons exist for making all search warrant affidavits public only after a peace officer executes the underlying search warrant. For example, the act of making a search warrant affidavit public before peace officer executes the search warrant would allow criminals to receive forewarning that a search warrant had been issued and was imminent. The Atty. Gen. went on to explain that under the common interpretation of the term execution with regards to an affidavit, that term can only mean bringing the affidavit into its final, legally enforceable form, such as by swearing to the statements therein and, to the extent required, filing it with the appropriate court or clerk. The Atty. Gen. stated that although there may be good policy reasons for withholding the affidavit until such time as the search warrant has been executed those policy reasons would not permit his office to ignore the plain language of the statute. Since the language is not ambiguous and the common legal use of the term execution when discussing an affidavit means the signing of the affidavit, the affidavit becomes public information once it is signed in front of the magistrate. Opinion No. KP-0145 4/24/14
US Fifth Circuit CONDUCT OF THE POLICE WAS REASONABLE; EVIDENCE WAS PROPERLY ADMITTED AT TRIAL; SECOND SEARCH OF CELL PHONE WAS ILLEGAL BUT DID NOT IMPACT THE CONVICTION The appellant was convicted for conspiring to possess and possessing with the intent to distribute marijuana and heroin. The appellant argued that the stop and arrest were illegal and evidence should ve been suppressed. The appellate court disagreed and affirmed the conviction. Border Patrol agents were patrolling a privately owned ranch approximately 30 miles from the Mexican border. The legitimate traffic in the area is primarily oil industry workers. Around 6:30 AM the agents were driving southbound through the ranch. They sought to similar white trucks, an F-150 and an F-250, driving in the opposite direction. The agents received an alarm that a vehicle had entered into the ranch illegally. The agents turned around and found the two white trucks again. The agents testified the trucks were traveling in tandem. The agent testified this is a common tactic among smugglers: one vehicle carries the drugs and the second vehicle is a scout or disturbance vehicle. The agents noted that at 6:30 AM oil field workers are usually traveling into the ranch, not leaving the ranch. The agents also noticed that the trucks did not bear company logos and that one truck had a paper tag, which is a common tactic among smugglers. The registration for this truck came back to a woman s residential address not an oil field business. This led the agents to believe that this truck was an everyday vehicle intended to resemble a legitimate oil field truck but carrying undocumented immigrants or drugs from the border. The agents stopped the F 150, believing it to be the load truck, i.e. the one with the contraband. Once stopped the agents noticed the truck was unusually clean. As the agent approached the truck he noticed there were no tools in the bed of the truck. The truck s fuel cell also looked out of place and lacked the fuel pump, rendering it inoperable. The agent spoke to the driver, the appellant, and asked him what he was doing on the ranch. The appellant was nervous and could not provide a definitive answer. A check on the appellant s record disclosed a narcotics case in his past. During this conversation the agent noticed the interior of the truck was unusually clean. The appellant s shirt, although resembling a work shirt, did not contain any logos or identification or decals. The appellant then consented to a search of the truck. During the search the agent opened the out-of-place fuel cell and found that it was empty and appeared to have been modified. The agents knew March 2017 2
that smugglers often carry drugs in hollowed-out fuel cells. The agent asked the appellant if he could look through his phone and the appellant handed it to the agent. The agent looked through it and found it contained only three numbers, two of which were saved under a single letter rather than a proper name. After searching it he handed it back to the appellant because he was done with it. About 10 minutes after the initial stop the agent asked the appellant if he would allow a canine to sniff his vehicle. The appellant agreed and the vehicle was driven approximately two minutes to the ranch s main gate. Approximately 10 minutes later a dog arrived. His handler reported that the dog alerted, but nothing solid. The agent believed that this meant something might have been in the truck at some point previously. The agent reported this information to his superior and overheard information about the F-250. As other border patrol agents followed it that truck tried to speed away and rammed the gate at a nearby ranch and took out a couple of deer-proof fences before it crashed. The driver fled and the agents located marijuana and black tar heroin in the truck. This discovery was made approximately 24 minutes after the appellant s initial stop. The agents then arrested the appellant based on his connection to the F-250. The agents took the appellant to a nearby Border Patrol station and turned him over to the DEA. The DEA agent went through the appellant s phone once again, as well as a second phone discovered by the agents in the wrecked F-250. The next day the DEA agent used the contact numbers he discovered from the phones to subpoena their accompanying records from the cellular provider. Additional investigation of the cellular phones disclosed additional information. The DEA agent never requested a search warrant. The appellant was prosecuted for drug possession and conspiracy. At trial he moved to suppress the evidence that agents recovered from him, his contact number, evidence of calls or texts, and any other digital data stored on the phone. The district court held that the agents had lawfully stopped the appellant and that he had consented to the search of his phone. The district court said this consent extended to the search conducted at the Border Patrol station. The appellant appealed his conviction and challenged the trial court s decision to deny his motion to suppress. The appellate court first examined the initial stop of the appellant. The court stated: To justify a vehicle stop, officers must have a reasonable suspicion that is, specific and articulable facts taken together with rational inferences from those March 2017 3
facts that criminal activity [is] a foot. In considering whether officers reasonably suspect someone of criminal activity, we defer to their law enforcement experience, recognizing that trained officers may draw inferences from certain facts that might well elude an untrained person. When roving Border Patrol agents stop a vehicle in a border area, rather than add an official checkpoint, we consider whether several factors contribute to the agents reasonable suspicion: (1) the area s proximity to the border; (2) the area s characteristics; (3) the usual traffic patterns on the road; (4) the agents previous experience with criminal activity; (5) information about recent illegal trafficking in the area; (6) the appearance of the vehicle; (7) the driver s behavior; and (8) the passengers number, appearance, and behavior. Because reasonable suspicion is a totality-of-thecircumstances analysis, we consider these factors collectively, not in isolation. [Internal cites omitted Ed.]. The court noted that all of the factors weighed in the favor of the government. The ranch was only 30 miles from the border. The ranch is a common corridor for smugglers because it circumvents two Border Patrol checkpoints. Sensors alerted the agents to an illegal entry into the ranch. They discovered an unfamiliar and atypicallooking oil field vehicle. The truck was traveling in the wrong direction. There were no logos designating it as an oil company vehicle. The truck had paper tags. The two trucks were traveling in tandem, a manner of travel common among smugglers. Per the court, the district court did not err in concluding that the agents reasonably suspected [the appellant] of criminal activity and therefore lawfully stopped his vehicle. The appellant also argued that the agents unreasonably extended the duration of the stop. The court noted that a stop might become illegal if officers detain a person beyond the time needed to investigate the circumstances that caused the stop. The appellant argued that he should ve been released when the dog failed to positively alert on the vehicle. The court pointed out that it was the cumulative effect of all the information known to the agents, not just the dog s ambiguous alert, that justified the detention. The entire stop lasted only 24 minutes - inclusive of the time it took for agents to discover drugs in the other truck. The court said this length of detention, based on the information known to the officers, was not unconstitutional. The appellant also challenged the consent search of his phone. He argued March 2017 4
that his consent was not voluntarily given based on the circumstances of his detention. The court noted that the agents were not required to give the appellant a Miranda - style warning before asking for consent to search the phone. The court noted that the mere presence of armed officers does not automatically render a situation coercive. The court noted there was no evidence that the agents threatened the appellant. The evidence indicated it was a simple request, the agent asking, do you mind if I look through your phone? And then the appellant handed it over. By handing the phone directly to the agent after the request the appellant s conduct clearly indicated his consent to the search. The search of the phone at the scene was constitutional. The appellant also challenged the second search of the phones (a second one was discovered during the stop) at the station. The court noted that, when the government relies on consent as the basis for a warrantless search, officers have no more authority than they have apparently been given by the consent. The scope of a person s consent is measured by what is objectively reasonable, that is what would the typical reasonable person have understood by the exchange between the officer and the suspect. The court opined that the consent given by the appellant was applicable to the search of the one phone at the scene. Once the agent handed the phone back to the appellant at the scene a reasonable person would understand that that act ended the consent. Accordingly, the court ruled that the second search at the station was a second, distinct search requiring a warrant, its own consent, or some other exception to the warrant requirement. Since there was no legal basis offered for the second search at the station, that search was illegal. However, even though the second search of the phone was illegal the court determined that that evidence was merely cumulative of the other lawfully obtained evidence admitted at trial. Therefore, the illegally admitted evidence was harmless and the conviction was sustained. US v. Escamilla, NO. 16-40333 (U.S. Fifth Circuit, 3/29/17) Texas Appellate Courts APPELLANT S STATEMENT WAS MADE TO THE OFFICER WITHOUT BENEFIT OF PROPER MIRANDA WARNING; STATEMENT SHOULD HAVE BEEN SUPPRESSED The appellant was convicted of the misdemeanor offense of possession of a substance listed in penalty group 2- A of the Health & Safety Code. On appeal she challenged the trial court s denial of her motion to suppress a statement that was the product of an unwarned custodial interrogation. The appellate court reversed the conviction and remanded the case to the trial court. March 2017 5
Deputy L stopped the vehicle in which the appellant was a passenger or having an obscured license plate. When he approached the vehicle he smelled a strong odor of burnt marijuana. Two additional deputies arrived to assist with the traffic stop. The driver and the appellant were removed from the vehicle and placed in handcuffs. The deputy advised them that he was searching the vehicle because of the marijuana odor. As he searched the vehicle the appellant voluntarily informed him that there was a blunt, or rolled marijuana cigarette, in her purse. The deputy confirmed the purse belong to the appellant and located the marijuana cigarette. He then asked the appellant if she had anything else on her and the appellant responded she did. The deputy continued to question her and determined that a baggie of synthetic marijuana and a plastic container with an unknown substance were hidden in the appellant s shirt. The appellant retrieved the items from her shirt and turned them over to the deputy. The deputy believed the plastic container was holding methamphetamine. The deputy placed the appellant under arrest after she handed the items to him. The appellant was not given the Miranda warnings any time prior to being placed under arrest. The state charged the appellant with possession of synthetic marijuana. The appellant argued the synthetic marijuana was illegally obtained as a result of unwarranted custodial interrogation. The trial court denied the appellant s motion to suppress. The appellant argued that she was in custody for purposes of Miranda when she answered the deputy s question of whether she had anything else on her. She argued that at the point the deputy collected the marijuana cigarette she had committed the offense of possession of marijuana and probable cause existed for her arrest, she was deprived of her freedom, and believed she was under arrest. As a result, she argued, the synthetic marijuana and her statement were erroneously admitted into evidence. The court noted that the Supreme Court has mandated that suspects be warned of their constitutional rights before being subjected to custodial interrogation. A routine traffic stop does not automatically place a person in custody for purposes of Miranda, but such a stop may escalate from a noncustodial detention into a custodial detention when formal arrest ensues or a detainee s freedom of movement is restrained to the degree associated with a formal arrest. [Internal cites omitted Ed.]. The court first had to determine whether or not the appellant was in custody for purposes of Miranda: An assessment of whether a suspect has been detained to the degree associated with the rest is made on an ad hoc, case-by-case basis In determining whether an individual was in custody, we must determine whether, given the circumstances March 2017 6
surrounding the interrogation, a reasonable person would have perceived detention by law enforcement officers to be a restraint on her movement comparable to the restraint of formal arrest The Court of Criminal Appeals described at least four general situations that may constitute custody. (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. The first three situations require that the restriction on a suspect s freedom of movement must reach the degree associated with an arrest instead of an investigative detention. Although the fourth situation requires that an officer s knowledge of probable cause be manifested to the suspect, custody is not established unless that manifestation of probable cause combined with other circumstances, such as duration or factors relating to the exercise of police control over the suspect, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. In evaluating whether a reasonable person would believe his freedom has been restrained to the degree of formal arrest, [we] look only to the objective factors surrounding the detention. The subjective beliefs of the detaining officer are not included in the calculation of whether a suspect is in custody. But if the officer manifests his belief to the detainee that he is a suspect, then that officer s subjective belief becomes relevant to the determination of whether a reasonable person in the detainee s position would believe he is in custody. [Internal cites omitted Ed.]. The court also noted that generally speaking a person held for investigative detention is not in custody for purposes of Miranda. The court applied the law to the facts of this case: Although the number of law enforcement officers outnumbered the suspects and [the deputy] testified [the appellant] was handcuffed and March 2017 7
not free to leave as he searched the vehicle based on the marijuana odor, [the deputy s] conduct at that time did not elevate the situation beyond an investigative detention Even when [the appellant] told [the deputy] she had a marijuana cigarette in her purse, the situation did not exceed a permissible Terry stop because [the appellant] volunteered the information without prompting The pivotal point occurred when [the deputy] collected the marijuana cigarette, and [the appellant] was aware he collected the marijuana cigarette from her purse. At that point, [the deputy] had probable cause to arrest [the appellant] based on her possession of the marijuana cigarette, [the appellant] was handcuffed, and [the deputy] did not tell her she was free to leave. [The deputy] then asked [the appellant] if she had anything else on her. In response to that question, [the appellant] told [the deputy] about the baggie of synthetic marijuana in the plastic container. Applying the facts of this case to the situations identified by the Court of Criminal Appeals as constituting custody, it appears [the appellant] was in custody at the time [the deputy] asked her if she had anything else on her. Having determined that the appellant was in custody at the time the deputy asked the question, the court now had to determine whether or not that question constituted interrogation. The court noted that interrogation, for Miranda purposes, refers both to express questioning and to any words or actions by the police other than those normally attendant to arrest and custody that police should know are reasonably likely to elicit an incriminating response. The court noted that a law enforcement officer should ve known that asking the appellant whether she had anything else on her was reasonably likely to evoke an incriminating response. Additionally the court pointed out that a law enforcement officer should ve known that if the appellant responded in the affirmative the response would be one prosecutors would seek to introduce at trial. The deputy should ve known that the combination of having just collected the marijuana cigarette with his questioning would encourage the appellant to provide an incriminating response. In this case the appellant s incriminating statement directly responded to an inquiry from the deputy made while she was in custody. The question was asked without benefit of March 2017 8
the proper warning and as such the statement should have been suppressed. Salinas v. State, NO. 04-16-00247-CR (Tex. App. San Antonio, 3/15/17) March 2017 9