The Right to Exclude: Defending Against Search and Seizure in Texas

The Constitution of the United States gives all citizens of the country certain privileges listed in the Bill of Rights. These ten “inalienable” rights were added to the Constitution in 1791, and they extend certain privileges that are the foundation for much of the liberty and freedom enjoyed in the United States. In particular, the Fourth, Fifth, and Sixth amendments in the Bill of Rights provide protection and fairness in the Government’s pursuit of justice. This article will focus how the Fourth Amendment is used with Article 1 of the Texas Constitution and other statutes to protect people from unreasonable search and seizure by the Government using Motions to Suppress. It will also cover some of the current hot beds of litigation regarding the Fourth Amendment in Texas.

The Fourth Amendment provides that people are entitled to be safe and secure in their own home, their cars, and their body. It further requires that probable cause must exist in order to obtain a warrant to invade a person’s property or space, and that warrant must specifically name the location and place to be searched. Any evidence gathered outside the bounds of the Fourth Amendment may be considered illegal, and as a result might be excluded from the evidence at trial. There are many exceptions to this rule, and circumstances of the search or seizure may negate the illegality.

The Evolution of Evidence Exclusion

The Supreme Court decided in Weeks that evidence obtained illegally may be excluded from trial in some cases. This decision was further bolstered in Mapp where the Supreme Court further expanded this “exclusionary rule” to non-federal cases, effectively putting the protection provided by the Fourth Amendment into action in every state. The exclusionary rule allows for a defendant to object to the introduction of evidence gathered illegally. It is a minimum standard designed to protect defendants from the Government. States may add to this common law exclusionary rule by enacting statutes. Texas’ exclusionary rule is codified in article 38.23 of the Texas Code of Criminal Procedure. The Texas Constitution also governs the types of searches and seizures that are illegal in Section 9 of Article 1.

Suppressing the Evidence in Criminal Cases

A defendant, or their attorney, must object to the introduction of the illegal evidence in order to have evidence excluded. A Motion to Suppress is the legal tool defense attorney’s use to put the Fourth Amendment’s protections into effect. The illegal evidence must be objected to or the defendant will waive their Constitutional right to the protection provided by the Fourth Amendment.

A Motion to Suppress requires that a defendant prove that a search or seizure occurred and that there was no warrant for that search or seizure. If there is no warrant then the burden is on the State to prove the legality of the search. If the State produces a warrant, however, the defendant is required to prove that the warrant was invalid. What the defendant must prove also depends on the type of Motion to Suppress they file.

Generally, there are five different types of Motions to Suppress arising from a violation of the Fourth Amendment: illegal arrest; illegal evidence; confession; grounds for arrest; and refusal of breath test.

A Motion to Suppress an Illegal Arrest invokes the Fourth, Fifth, and Sixth amendments. This motion suppresses all evidence gathered at the time the defendant was arrested, including any statements made at the time. This motion is appropriate for arrests made without probable cause and a warrant, and functions to repress all the “fruit of the poisonous tree.” The fruit of the poisonous tree refers to any information acquired as the result of a flawed or illegal search and seizure.

The Motion to Suppress Evidence is similar to the Illegal Arrest in that it functions to suppress any evidence that was gathered as a result of an illegal search. It does not require that the individual be present or arrested at the scene. It invokes many Amendments in the Constitution but is mostly based off the principle of the Fourth.

A Motion to Suppress Confession is not as deeply rooted in the Fourth Amendment, but because it generally alleges the confession is a result of an unlawful arrest or search and seizure, it is clearly a violation of the Amendment. Similarly, a Motion to Suppress Grounds for Arrest implicates the Fourth Amendment even though it derives authority from a provision of the CCP. It states that there was no probable cause to arrest a defendant in the first place. As the Fourth Amendment requires probable cause to “seize” a person or property, an arrest without that probable cause would clearly be a violation.

Finally, a Motion to Suppress Refusal to Take Breath Test implicates the Fourth Amendment because it may state that the law enforcement official made the traffic stop without probable cause. It is also codified in the CCP, but it is always important to claim violations of both for appeals purposes.

The Hot Spots of Fourth Amendment Litigation

Needless to say, some violations of the Fourth Amendment or Texas Constitution are more favorable arguments that are more likely to win in court. For instance, in Texas it is very difficult to prove a warrant is invalid based on lack of probable cause. The precedent is for the trial court to give great deference to the magistrate that signed the instrument. The warrant affidavit used to create the warrant is reviewed in a common sense manner. This protects police action from being challenged based on technicalities.

Reasonable Suspicion

On the other hand, there are some definite hot spots in proving a search or seizure was unlawful. A particularly unpredictable area that is currently litigated often is reasonable suspicion. Reasonable suspicion refers to the purpose for which a law enforcement official detains a person. Reasonable suspicion to detain exists if the arresting officer has specific, articulable facts that combine with a rational inference from those facts to create a reasonable conclusion that the person has participated or is going to participate in a criminal activity. It is an objective test that relies on the totality of the circumstances to conclude that detention of the person was necessary. Even if the likelihood that innocent activity is just as plausible as criminal activity a reasonable suspicion sufficient to detain may exist based on the circumstances.

In determining the facts on which to base the totality of the circumstances, appeals courts are required to give great deference to the trier of fact. The reason for this deference, whether the trier of fact is judge or jury, is that they saw firsthand how the parties gave their testimony. The trier of fact was able to see the mannerisms and confidence the witness or officer was in their testimony that may not be reflected in the record. For this reason it is crucial to win at the trial stage because it is unlikely that an appeals court will overturn based on the facts as decided at trial.

Search Incident to Arrest

Another current hot spot in Fourth Amendment litigation is search incident to arrest after Arizona v. Gant. The Supreme Court overturned the bright line rule that allowed police to automatically search all areas of a vehicle following arrest. Courts in Texas have indicated that a “reasonableness” standard is used to determine if the search incident is appropriate. This standard is based off the objective facts and circumstances of the arrest and subsequent search, and when taken together provide the arresting officer with reasonable suspicion to search the whole car. The subjective intent of the officer is not taken into account in this reasonableness assessment.

Implied Consent: Blood Draws, Warrants, and Checkpoints Too

The Supreme Court ruled in a case called McNeely that a law enforcement official must have a warrant to draw blood from an individual because it is considered a search. Court rulings after the fact have shown that the implied consent law does not overrule the McNeely standard, even in good faith cases of implied consent prior to the McNeely ruling.

In some parts of Texas, the state has held “No Refusal” weekends. This prevents a suspected intoxicated party from refusing to have their blood drawn, and as a result, requires a “blood warrant.” The warrants must be obtained quickly because the number generated by these weekends are fairly high. The process for getting the warrant is usually streamlined to an extreme point which leaves open several technical issues. The affidavits are usually pre-printed and only have blanks for probable cause and names. While these warrants have been held to be valid in most cases, there has been a large amount of litigation over the technical aspects of this process.

Another similar area of law are checkpoints. These checkpoint have been approved by the Texas Court of Criminal Appeals because they are considered a non-suspicious driver’s license check. Prior to the Texas Criminal Appeals Court ruling, the appeals court held that it was a violation of the Fourth Amendment because they found the stop to be for general criminal activity.

Dog Sniff Searches

Whether a dog is a qualified drug detection animal is judged on the totality of the circumstances of the environment where the alert occurs. In order for a dog’s alert to be followed, the State must provide evidence that it is sufficiently trained and unlikely to give a false alert. In most cases evidence that the dog has completed a narcotics training program and received certification is enough to uphold the dog’s alert. Other factors at the time of the alert must be followed on a common sense basis, much like probable cause.

The Supreme Court has ruled that a dog sniff at the door of a house, or at the door of an apartment, is considered a search for purposes of the Fourth Amendment and requires a warrant.

Freedom from Search and Seizure

The Constitutional right to privacy and protection from the Government is still an important issue that is often litigated. While the Government and its judicial branch have effectively curtailed some defenses, there are many circumstances where a person may deny a search because it is illegal. The motion to suppress is still a strong tool for criminal litigators across the country to help the public defend themselves from unreasonable government infringement into their lives.