Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

May 05, 2008

FOURTH AMENDMENT: U.S SUPREME COURT CLARIFIES ISSUE OF SEARCH/SEIZURE IN VIOLATION OF STATE LAW

Houston Criminal Defense Attorney John Floyd Discusses Search and Seizure Issues Presented in Virginia v. Moore and Implications on Texas Suppression Claims; Justice Scalia Views Constitution as “Dead” Document.

The Moore Rationale

David Lee Moore was a small time crack dealer in Portsmouth, Virginia. In February 2003 two local police officers heard over their police radio that a person known as “Chubs” was driving with a suspended license. One of the officers knew Moore by the moniker “Chubs.” They ran a license check and learned that Moore’s license had in fact been suspended. The officers located, stopped, and arrested him on the misdemeanor charge of driving with a suspended license. A subsequent search of Moore’s vehicle by the officers discovered 16 grams of crack cocaine and $516 in cash. See: Virginia v. Moore, 543 U.S. _____ (April 23, 2008), Slip Opinion, No. 06-1082, at p. 1.

Virginia law required only that the officers issue Moore a summons, not arrest him. Citing Va. Code Ann. § 19.2-74 (Lexis 2004), the Supreme Court pointed out that an individual driving with a suspended license is subject to arrest only when he fails or refuses to discontinue the violation or when the arresting officer has reason to believe the individual will disregard the summons or is likely to harm himself or others. Id., at 2.

Moore was subsequently charged with possession with intent to distribute cocaine. He filed a motion to suppress the evidence seized during the search incident to his unlawful arrest under the Fourth Amendment provisions of the U.S. Constitution. Moore was forced to hitch the horse of his illegal search and seizure argument to the buggy of the Fourth Amendment because “Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law.” Id.

The Virginia courts were split on Moore’s Fourth Amendment claim. The trial court denied his suppression motion and found him guilty. A Virginia intermediate appellate court reversed his conviction but that decision was overturned at the court sitting en banc. See: Virginia v. Moore, 609 S.E.2d 74, 76, reversed, 622 S.E.2d 253 (20005). That en banc decision was then overturned by the Virginia Supreme Court and the case remanded for a new trial. See: Virginia v. Moore, 636 S.E.2d 400 (2005). The State sought and was granted certiorari review by the U.S. Supreme Court. 551 U.S. ____ 2007).

Associate Justice Antonin Scalia, speaking for the “originalists” on the court, soundly rejected the premise an arrest made in violation of state law triggered Fourth Amendment protections:

“ … we have analyzed a search or seizure in light of traditional standards of reasonableness ‘by assessing on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” Id., at 6. [internal citations omitted].

Scalia said in a recent 60 Minutes interview (April 27, 2008) that the Constitution should not be construed as a “living document” receptive to changing social norms and values but as a “dead document” interpreted exclusively as the Founding Father intended during the time it was written. Citing Cooper v. California, 386 U.S. 58 (1957), Scalia pointed out that it’s “irrelevant” in a Fourth Amendment context whether state law was violated in a search and seizure. The states remain free, Scalia wrote, “‘to impose higher standards on searches and seizures than required by the Federal Constitution,’ but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law.” Id. See also: 386 U.S. at 62. Accord: California v. Greenwood, 486 U.S. 35, 43 (1888) [search of individual’s garbage in violation of state constitution upheld]; Whren v. United States, 517 U.S. 805, 815 (1996) [seizure upheld although plainclothes officers in unmarked vehicles violated departmental policy].

But the States are not free to impose any laws that would restrain the original intent of the Fourth Amendment. Justice Scalia flatly closed any further constitutional debate on this issue:

“ … A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.

“If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude evidence obtained in violation of its statutes. Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a protection designed to protect against searches and seizures.” Id., at 9.

Texas Law

Tex.Code Crim. Proc. art. 38.23(a) provides:

“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.”

While Art. 38.23(a) has evolved to become a statutory exclusionary rule in Texas, it does not stand to exclude all illegally obtained evidence. To have seized evidence excluded under Art. 38.23(a), the defendant must show that an officer or other person violated “a provision of the constitution or laws of the State of Texas, or the constitution or laws of the United States of America.” See, Burkett v. State, 760 S.W.2d 345 (Tex.App.-Houston [1st Dist.] 1988, no pet.]; Henrich v. State, 694 S.W.2d 341 Tex.Crim.App. 1985), cert. denied, 482 U.S. 913, 107 S.Ct. 3183, 96 L.Ed.2d 672 (1987).

A warrantless search by law enforcement personnel is per se unreasonable unless it falls into a well-delineated exception. See, Gibson v. State, 921 S.W.2d 747, 757 (Tex.App.-El Paso 1996, writ denied). The burden rests with the State to prove that a warrantless search falls into one of the specifically established exceptions. See, Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986) If the State elects to rely upon the “consent” exception, it must prove by clear and convincing evidence that the defendant voluntarily consented to the warrantless search. See, State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997).

Tex. Code of Criminal Procedure Art. 14:05 states the “rights” of an arresting officer”

“In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant, except that an officer making an arrest without a warrant may not enter a residence to make the arrest unless:

”(1) a person who resides in the residence consents to the entry; or

”(2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.”

It has been longstanding law in Texas that a criminal defendant who files a pretrial motion to suppress evidence because of an illegal arrest bears the initial burden to rebut the presumption of proper police conduct. See: Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986). This burden is met when the defendant proves the police seized him without a warrant. Id., at 9.

Once the defendant establishes that a warrantless search or seizure occurred incident to an illegal arrest, the State then bears the burden of either producing evidence of a warrant or proving the reasonableness of the search or seizure under one of the recognized exceptions to the warrant requirement. Id. See also: Covarrubia v. State, 902 S.W.2d 549, 554 (Tex.App.-Houston [1st Dist.] 1995).

Exigent circumstances justifying a warrantless entry include (1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; (2) preventing the destruction of evidence or contraband; and (3) protecting the officers from persons whom they reasonably believe to be present and armed and dangerous. See: McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991).

Once a Texas appeals court concludes that a trial court erred when it did not suppress evidence seized as an incident of an unlawful arrest pursuant to § 38.23(a), the court will conduct a “harmless-error analysis” under Tex.R.App.P. 44.2(a). This analysis requires a finding that error contributed to the defendant’s conviction. This is not a difficult analysis. “It is clear absent the unconstitutional search, appellant would not have been arrested and consequently convicted.” See: January v. State, 1999 Tex.App. LEXIS 7557 (Tex.App.-Houston [1st Dist.] 1999).

Conclusion

As the Supreme Court pointed out in Moore, the defendant did not have any choice but to base his pretrial motion to suppress on Fourth Amendment grounds. As the Court stated: “Virginia does not, for example, ordinarily exclude evidence obtained in violation of its statutes.” See: Slip Opinion at 9.

The suppression rule is not so oppressive in Texas. A criminal defendant can move to suppress under the Code of Criminal Procedure [§ 38.23(a)], the Texas Constitution [Art. I, § 9], or the United States Constitution [Fourth Amendment]. However, the defendant must distinguish his rights under the Texas Constitution from those under the Federal Constitution. See: Dewberry v. State, 4 S.W.3d 735, 743-44 (Tex.Crim.App. 1999). The failure to distinguish rights guaranteed under Texas Constitution from U.S. Constitution results in claim being addressed under the Federal constitution only. Id. See also: Hale v. State, 139 S.W.3d 418 (Tex.App.-Fort Worth 2004, no. pet. h.).

The failure of a defense attorney to properly research and litigate an illegal arrest and subsequent unlawful search and seizure under § 38.23(a) and Art. I, § 9 of the Texas Constitution will result a decision like Virginia v. Moore.