Why Police Do Illegal Searches

January 16, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Police do illegal searches for one simple reason.  They think they’re dealing with a criminal in a classic struggle of good versus evil.

It is literally life imitating art.  We all grew up watching shows about good versus evil like the “Superfriends” huddling together to defeat “The Legion of Doom,”

Image

or the Lone Ranger fighting injustice, or even shows like Perry Mason where even a wrongful accusation is so blatant as to be obvious injustice.

An illegal search is simply no different.  The police officer has convinced themselves based  on a mix of objective evidence and highly subjective criteria they have uncovered a criminal in the midst of committing a crime.  Sometimes they’re right and sometimes they’re not.

Terry vs. Ohio is the classic Supreme Court case which discusses the differences between officers using “hunches” or supposition instead of using concrete evidence.  It has long been recognized hunches, guesses or other manufactured probable cause go hand in hand with police profiling.

Psychological Studies Recognize People’s Views of Themselves Affects Their Behavior.

People tend to view themselves differently than they view others.  They tend to view themselves as objective, unbiased, and generally more positively.  Additionally, people tend to over-estimate how much we can learn about another during a brief encounter.  Practically, then, it is easy to see where a self-assured officer convinced he or she has uncovered a crime which only they alone can sense pushes, and pushes, and pushes a situation to the point where a search becomes illegal.

How It Works In Reality

A police officer who has pulled over a group of highly anxious teenagers in a beat-up car at 1 a.m. on a Saturday morning is simply more likely to suspect drug or alcohol involvement than if he were to pull over a mom in a minivan at 3:00 p.m. on a Wednesday.

In the former situation, experienced defense lawyers are naturally skeptical of a police report which tends to craftily bend, twist, or slant the officer’s observations which try to convert subjective beliefs into concrete facts justifying a search.

For example, it’s not uncommon to read police reports which claim a suspect “was anxious.”  Anxiety may be present for countless reasons in a suspect yet a police report will often continue, “in my training and experience it is common for drug dealers to be nervous when confronted by police.”  While this is probably true to some extent — its simply pure guesswork.

Other extreme examples I’ve come across include where an officer claimed to have observed the suspect’s heart beating through a t-shirt (which in the officers experience indicated guilt) and when Defendant stepped out of the vehicle — he did so to distance himself from drugs in his car which is a common tactic for drug users (based on the officer’s training and experience).

One last claim I am seeing more and more often is an officer claiming the ability to smell unburnt marijuana — often outside the vehicle or even in containers or baggies.  While police are specifically trained to detect the distinct odor of burnt marijuana — there is virtually no proof the ability to detect unburnt marijuana is anything better than a guess.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly


What is a Motion to Suppress?

December 28, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A motion to suppress is a challenge to the legality of how evidence was attained.

In Texas and the United States we have what is known as the “exclusionary rule.”  This rule means where a court finds evidence was attained illegally – it cannot be used for any reason against the accused.  The exclusion (or suppression) of evidence often makes it impossible for the prosecution to prove one or more elements of the crime — which means they often lose the entire case based on a successful motion to suppress because they will fail to meet their burden of proof at trial.  Other times, a successful motion to suppress will exclude a damaging admission, confession or other piece of evidence which does not win a case for the defendant but makes the case much more difficult on the prosecution.

What Makes an Arrest or Search Illegal?

It depends on the situation.  In an automobile stop, the stop is normally bad where the driver didn’t commit any offense which allowed the officer to pull them over in the first place.  Searches in automobiles can also be bad where the officer searches a car or individual without consent or probable cause that some crime has been committed within his presence.

Home searches have extremely great protection.  Remember the constitutional basis for the 4th amendment in the first place was to prevent American soldiers from rummaging through people’s houses the same way the British had done prior to the revolution.

Search warrants can be held to be illegal if the application for the warrant was not done properly and fails to establish probable cause.

Also, if the State broke some other law in attaining evidence then the evidence can be suppressed as well.  A common example is where the State doesn’t follow protocol on a breath test or blood draw and can’t use the result at trial.

The situations where searches, arrests, or other types of evidence can be thrown out are countless.  Each is truly it’s own unique snowflake and this discussion barely scratches the surface of suppression.

Does This Mean the Police have Committed a Crime Against Me?

Not really.  It’s more like an ‘illegal procedure’ penalty in football.  It sounds worse than it actually is for the cop.  Most suppression cases arise because the officer was being (1) overly-aggressive; or (2) was just not thinking.

You have to remember a handful of things about police.  First is they profile and target certain people.  The good news is that it is rarely based on race — but it doesn’t make it a whole lot better.  Police tend to target, for example, teenagers/ younger adults, people driving beat-up cars, and frankly — people who look like thugs.

Second, society has glorified police acting on ‘hunches’ even though the law requires the opposite — that if the police are going to act they have to have specific articulable facts which justify their actions.  Not only does the law require there to be ‘articulable fact,’ but study after study shows that an officer’s ‘hunch’ is generally no more reliable than flipping a coin.

When you combine profiling of someone in a high-target group with an officer acting on ‘hunches’ instead of fact — you tend to get a situation ripe for a motion to suppress.

Examples of How a Motion to Suppress Works

The best way to demonstrate how a motion to suppress works is through practical examples.

Bad Stop Eliminates Entire Case:  

DWI arrest where blood draw ultimately shows defendant had o.15 blood alcohol concentration.  Officer stopped defendant for driving slowly, weaving within lane, and crossing solid white line.  Court held defendant committed no traffic violations because (1) weaving within one’s own lane is not a crime where no lane was crossed; (2) driving slowly does not constitute a crime in and of itself; and (3) Defendant’s car crossed solid white line exiting freeway in response to being pulled over.  The officer’s decision to stop had already been improperly made.

Result:  All facts attained from stop were suppressed.  Therefore State could not prove identity of driver or that driver was intoxicated.  Case dismissed by prosecution.

Bad Search Eliminates a Key Element

Marijuana case where police get a report of a ‘disturbance’ in the middle of the day at an intersection in a high crime neighborhood.  Nature of the ‘disturbance’ unknown but description of participants were given – and description was somewhat common.  Officer stops defendant several blocks away walking on a street (towards the area of the disturbance).  After a brief conversation, the officer begins a pat-down search of the defendant who admits he’s got marijuana in his pocket which is ultimately found.

Court held: (1) the report of a ‘disturbance’ too broad to allow a general search of all people matching the description in the vicinity for all purposes; (2) the encounter between the officer and the accused was originally voluntary but turned into a detention when the officer began to frisk Defendant without permission; (3) by the time Defendant admitted to the drugs, the illegal detention without probable cause had already commenced — therefore the admission and the marijuana themselves were not admissible.

Result:  Not Guilty verdict because no evidence defendant was in possession of marijuana (the corpus dilecti of the crime).

Bad Search Warrant Eliminates Blood Result

Defendant arrested for DWI after car accident.  Officer’s conduct field sobriety tests and determine defendant was intoxicated.  Officers apply for search warrant from a judge on call.  Judge grants the search warrant and the defendant is shown to have a blood alcohol concentration of 0.17 at the time of testing.  Court held that search warrant failed to contain the time of driving and as such, the warrant was insufficient to demonstrate that evidence of a crime would be present in defendant’s blood specimen.

Result:  Defendant stood trial, however, state barred from showing or referring to blood draw or blood result.

In Summary

Motions to suppress are hard to understand.  They can be an over-looked and efficient way to defend cases of all types.  Hopefully after this discussion today you have a bit more understanding.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  Legal advice about any topic should be discussed directly with an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.


Does the New Arizona Immigration Law Violate the 4th Amendment?

April 30, 2010

That’s a tough call but my guess is that the Courts will address the issue sooner rather than later.

All of the political issues aside (this is a legal blawg — not a political blawg), one of the chief controversies over the bill is whether it would implicitly require an officer to racially profile potential illegal immigrants.

The author of the bill, Kris Kobach, a law professor from the University of Missouri- Kansas City, believes he has crafted the bill in such a way as to survive a constitutional challenge.  Mr. Kobach states the bill prohibits the use of race, color, or ethnicity from being factors in an officer’s determinations of reasonable suspicion.  This is not unlike Texas’ Code of Criminal Procedure 2.131 which simply reads, “A peace officer may not engage in racial profiling.”

As a specific example in a recent interview, Kobach said, “You might have a vehicle overloaded, no one in the vehicle has any identification whatsoever. The driver of the vehicle is acting evasively and trying not to answer the officer’s questions, perhaps one person in the vehicle concedes that he is unlawfully present [in the US],”

The U.S. Court of Appeals for the 5th Circuit (the Circuit governing Texas and Louisiana — and widely regarded as one of the more conservative appellate courts in the country) ruled to suppress an arrest on similar facts just this past October in United States v. Rangel-Portillo, 586 F.3d 376 (5th Cir. 2009).

In that case Cipriano Rangel-Portillo was charged with multiple counts of transporting illegal aliens.  The facts of the initial stop according to the Court were as follows:

A U.S. Border patrol officer passed a large retail store parking about 500 yards from the Texas – Mexico border.  Due to the close proximity to the Mexican border, the officer stated the area was known for drug smuggling.  He observed two vehicles exiting the parking lot onto the highway and decided to follow them because they looked suspicious.

The officer made several observations about the driver and the three passengers in the vehicle in question. The driver initially looked straight ahead, but when the patrol unit approached the vehicle, he noticed that the driver looked at him and made eye contact. In contrast to the driver, the three backseat passengers avoided eye contact, were “stone-faced,” and looked straight forward. According to the officer, “the passengers didn’t look at [him] enough and the driver looked at [him] too much.”

The passengers never conversed once for several miles and were sweating “pretty bad.” The windows were rolled up and the passengers appeared “very stiff.” The officers could see inside the windows of the vehicle and because they were higher than the suspects vehicle, they could see on the floorboards that there were no shopping bags from the store.

The officers detained the driver and passengers and discovered the three passengers were undocumented.  The Fifth Circuit concluded there was not enough reasonable suspicion to detain the vehicle and the arrest and detention of Mr. Rangel-Portillo was thrown out.

In a nutshell — the border patrol in attempting to establish reasonable suspicion was essentially multiplying zeros.  In other words — one, three, or five perfectly legal activities (albeit suspicious), are still perfectly legal activities and can’t be subject to detention.

Mr. Kobach’s hypothetical scenario, then, appears somewhat at odds with the 5th Circuit’s opinion.  Arizona’s promise to not utilize factors such as race and ethnicity, may be viewed as somewhat unrealistic or tone-deaf in light of how courts analyze situations such as Rangel-Portillo.  Then again, perhaps Mr. Kobach’s buffer language prohibiting racial profiling may be enough to save the statute.  The Court’s analysis will be interesting.

Currently several cities in Arizona as well as the U.S. Department of Justice are reviewing the law to see whether they wish to make legal challenges prior to it’s going into effect.  Stay tuned!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should always directly consult an attorney.


What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about your own situation you should contact an attorney.