4th Amendment Issues - tmcec.com

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TEXAS COURT OF CRIMINAL APPEALS

TEXAS MUNICIPAL COURTS

EDUCATION CENTER

2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756

TELEPHONE 512.320.8274

1.800.252.3718

FAX 512.435.6118

TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION

4th Amendment Issues

Presented by

Michael Barker, Instructor, Austin Police Academy

This course will provide an overview of search and seizures and the governing case law under decisions made by

the U.S. Supreme Court, as well as the Texas Court of Criminal Appeals.

By the end of this session, participants will be able to:

1. Recognize when the 4th Amendment is triggered in a search and seizure;

2. Identify key cases that govern search and seizure; and

3. Define what is meant by a consensual encounter.

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4th Amendment Regarding

Arrest, Search & Seizure

4th Amendment Regarding

Arrest, Search & Seizure

Course Objectives

The 4th Amendment

What is a seizure? When does a seizure occur?

Consensual Encounters

Reasonable Suspicion, Stop and Frisk

Probable Cause

Vehicles

Residences

Some Legal Concepts

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Triggering the 4th Amendment

The 4th amendment applies equally to searches as to seizures.

Triggering the 4th Amendment

The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual

interest in privacy; a seizure deprives the individual of

dominion over his or her person or property.

Triggering the 4th Amendment“Expectation of Privacy”

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Katz vs. United States389 U.S. 347, U.S. Supreme Court, 1967

1. A person exhibits an actual (subjective)expectation of privacy.

2. The expectation must be one that societyis prepared to accept as reasonable(objective).

“What a person knowingly exposes to thepublic, even in his own home or office, isnot a subject of Fourth Amendmentprotection. But what he seeks to preserveas private, even in an area accessible tothe public, may be constitutionallyprotected.”


The highest degree of REP is in ourbodies and in the home.


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If you have the right to be there,you have the right to see, hear,or smell what is exposed topublic view.

Right to be … Right to See

What is a Seizureand when does it occur?

What is a Seizureand when does it occur?

Brower v. Inyo CountyU.S. Supreme Court, 489 U.S. 593, (1989)


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A seizure occurs when governmentaltermination of a person’s movement iseffected through means intentionallyapplied.

The Court held that a violation of theFourth Amendment requires anintentional acquisition of physicalcontrol.

“In order for “seizure” to have occurred,there must either be some application ofphysical force, even if extremely slight, ora show of authority to which the subjectyields; a show of authority, without anyapplication of physical force, to which thesubject does not yield is not a “seizure”.”

California v. Hodari499 U.S. 621, U.S. Supreme Court (1991)

“STANDING”

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Standing is the right of a person tocomplain in court about thelawfulness of a police action.• Arrest• Detention• Search• Frisk

“STANDING”

A person has no standing to assert violations ofanother’s rights, or to complain about the searchor seizure of property not under his lawful controlor possession.

If a person does not own or have legitimatecustody of an item, he cannot claim a reasonableexpectation of privacy in it.

If the arrestee does not have a reasonableexpectation of privacy in the place searched or thething seized, he does not have standing to object toa search.

“No Standing to Complain”

Officers may approach a citizenand ask questions without anylegal justification. This“consensual encounter” is one inwhich the citizen is free todisregard the officer’s questionsand may leave at anytime.

CONSENSUAL ENCOUNTERS

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To determine the reasonableness of detention the Court adopted a dual inquiry: whether the officer’s action was justified at its

inception; and

whether the entire detention was reasonably related in scope to the circumstances which justified the interference in the first place.

Terry v. OhioUnited States Supreme Court, 392 U.S. 1, (1968)

“Mere suspicion that criminal activity is afoot is insufficient to justify Terry stop; facts must support reasonable suspicion that:1. some activity out of the ordinary is occurring or

has occurred,

2. the suspect is connected with suspicious activity, and

3. the suspicious activity is related to a crime.”

3-Pronged TestHoag v. State,728 S.W.2d 375, Texas Criminal Appeals

The FriskSeparate From The Stop?

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FriskFrisk A “pat down” of the outer clothing of a

person whom you have stopped. To protect the safety of the officer. Not a fishing expedition. Permitted anytime an officer is in contact

with another person and can articulate reasons that he feared for his safety; whenever an officer has reason to believe another has a weapon on or about his person that can be used to cause injury or death.

Crain v. StateTX Court of Criminal Appeals, 2010 A reasonable person in the

defendant's situation would not have felt free to leave or decline the officer's order to "come over here and talk to me."

Therefore, the defendant was detained at that point, and the officer's lack of reasonable suspicion for that detention means that the weapon found during the subsequent search is inadmissible.

State v. Kerwick, 2013Texas Court of Criminal AppealsThe unidentified person pointed at a vehicle that was parked across the

street and said “there they are right there. There they are, there they

are.”

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State v. Kerwick, 2013Texas Court of Criminal Appeals

“Reasonable suspicion to detain a person exists if an officer has specific, articulable facts that, combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.”


“These facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to crime.”

State v. Kerwick, 2013Texas Court of Criminal Appeals“We begin our de novo review by identifying the relevant historical facts the trial judge found Officer Bradford knew at the time he initiated the investigative detention: (1) shortly after midnight, someone called the police to report several people fighting in front of PR’s Bar;

(2) upon arrival at PR’s Bar, Officer Bradford saw several people standing outside;

(3)Officer Bradford spoke to someone who was the owner of a damaged vehicle which was at the location;

(4) this person, who identified him or herself to Officer Bradford, pointed at a vehicle parked on the roadway directly across the street from the bar and stated, “There they are right there. There they are, there they are;” and”

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State v. Kerwick, 2013Texas Court of Criminal Appeals(5) as Officer Bradford approached Kerwick’s vehicle, it began to move and he ordered Kerwick to stop.

“While each fact in isolation may be insufficient to establish reasonable suspicion, based on the totality of the circumstances, we find that Kerwick’s detention was supported by reasonable suspicion. The damage to the vehicle observed by Officer Bradford and the report of several people fighting is indicative that unusual activity occurred and that this unusual activity was some indication that a crime may have occurred. The evidence further supports a reasonable basis to believe that either Kerwick or the car’s other occupants may have been connected to this unusual activity.”


In addition to discounting the other facts known to Officer Bradford, the court of appeals specifically addressed the “there they are” statement and held that it “does not indicate any unusual activity, does not connect [Kerwick]

to any usual activity, and does not indicate that any unusual activity is related to crime.” However, it did so by evaluating the statement apart from the context and the circumstances under which it was made.

State v. Kerwick, 2013Texas Court of Criminal Appeals“In light of the damaged vehicle and the presence of several people outside of the bar after a report of several people fighting, and the clear identification of Kerwick’svehicle, the statement provided a rational basis for Officer Bradford to infer that the person whose vehicle was damaged was a potential crime victim and was identifying the person or persons responsible for the damage.”

“Officer Bradford’s belief that Kerwick or a passenger in her car was involved in criminal activity and that he needed to investigate was further supported by Kerwick’s

attempt to drive away as he approached.”

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“Based on the totality of the circumstances, we conclude Officer Bradford was justified in suspecting that Kerwick was involved in criminal activity and detaining Kerwick to investigate further.”

Probable Cause

"Probable cause is a fluid concept -- turning on theassessment of probabilities in particular factual contexts --not readily, or even usefully, reduced to a neat set of legalrules." Illinois v. Gates, U.S. Supreme Court

“The probable-cause standard is incapable of precisedefinition or quantification into percentages because itdeals with probabilities and depends on the totality of thecircumstances.” Brinegar, U.S. Supreme Court

“The substance of all the definitions of probable cause is areasonable ground for belief of guilt," and that the belief ofguilt must be particularized with respect to the person to besearched or seized, Ybarra v. Illinois, U.S. Supreme Court

Defining Probable Cause

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Kuciemba v. State

TX Court of Criminal Appeals, 2010

Guzman v. State of TexasTexas Court of Criminal Appeals, 1997

“Probable cause for arrest deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support conviction or even that needed to support finding by preponderance of evidence.”

Guzman v. State of TexasTexas Court of Criminal Appeals, 1997

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Frisking Vehicles Officers may conduct a protective search

of a vehicle in the same manner as theymay frisk an individual on the street. Thepurpose is to allow officers to conductinvestigations in safety and must be basedon “reasonable suspicion.” This “frisk” is limited to the passenger

compartment. Officers are authorized to open containers

that may contain weapons.

The Probable Cause Exception

Carroll Doctrine - 1925

“We hold that they [police] may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant “particularly describing the place to be searched.”

Warrant

United States v. RossUnited States Supreme Court - 1982

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Luggage

“We therefore interpret Carroll asproviding one rule to govern allautomobile searches. The police maysearch an automobile and thecontainers within it where they haveprobable cause to believe contrabandor evidence is contained.”

California vs. AcevedoU.S. Supreme Court, 500 U.S. 565, (1991)

Law enforcement officer may, consistent with the Fourth Amendment, open closed containers while conducting a routine inventory search of an impounded vehicle.

Underscored the importance of having such inventories conducted only pursuant to standardized police procedures.

Colorado v. BertineU.S. Supreme Court - 1987

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“Standardized criteria,” or “established routine” (i.e., General Orders, SOP) must govern “the opening of containers found during inventory searches.”

This requirement “is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.”

Florida v. WellsU.S. Supreme Court - 1990

The Court held that the “automobile exception” to the Fourth Amendment’s warrant requirement does not apply to searches of vehicles parked inside the “curtilage” of a home.

Collins v. Virginia, No. 16-1027U.S. Supreme Court 2018

In this case, police developed probable cause that a stolen motorcycle that had been involved in several dangerous traffic incidents was parked at a particular home. Upon arriving at the home to investigate, police saw a motorcycle parked outside. The motorcycle was parked at the top of the driveway, in a partially enclosed area around the side of the home, under a protective tarp. The officers removed the tarp, found the VIN, confirmed the motorcycle was stolen, and arrested the person in the home claiming to own the motorcycle.


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The Court ruled that the officers needed a search warrant to search the motorcycle because it was parked inside the “curtilage” of the home. The Court ruled that the automobile exception—which permits searches of automobiles without a warrant, based on probable cause alone—does not apply to vehicles parked inside a home or its curtilage.


A person’s home extends outside of its four walls, to the curtilage. The curtilage is the area outside the home itself, in “an area adjacent to the home and to which the activity of the home life extends.”


Just as with any other search of a home, officers may not search a vehicle inside a home or its curtilage unless they have a warrant, valid consent, or there are exigent circumstances that justify an immediate search.


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“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

Payton vs. New YorkUnited States Supreme Court, 1980

The warrant requirement in regards to residences is much more zealously enforced by the courts (both criminal and civil) than in other type searches.The exceptions are:

1. Consent2. Probable Cause & Exigency3. Community Caretaking/Emergency

Aid

Residence Searches

Texas District and County Attorney’s Association

Weekly Case Summaries & The Report

www.tdcaa.com

Caselaw Bulletins & Research

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Federal Law Enforcement Training Center

Monthly Case Summaries and Articles

www.fletc.com

Caselaw Bulletins & Research

The End

4th Amendment Issues - tmcec.com

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