Emerging Issues in Search and Seizure Law

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Our Attorneys represent clients in both state and federal court. We take cases through the State of Texas. In federal cases, our attorneys have represented clients throughout the country. Many of these cases involve complicated motions hearings to suppress physical or electronic evidence gathered during an unlawful search and seizure.

The attorneys at Flanary Law Firm, PLLC are at the forefront of shaping search and seizure law. Many of the attorneys in the firm haven been asked to speak at seminars throughout the country on these issues. This course material was prepared by , and presented to the San Antonio Bar Association's 49th Annual Criminal Law Institute on March 23-24, 2012 and to the Laredo-Webb County Bar Association on October 26 2012.

The presentation discusses general case precedent established from 2010 through 2012 in Texas Search and Seizure law. It focuses on areas where new technology has required new analysis of the Fourth Amendment. Specifically, this article discusses computer and cell phone searches, global positioning system (GPS) tracking, and the changing understanding of K9 searches.

The article also discusses the standards which control the collection and use of third party data under the Electronic Communications Privacy Act (ECP), the Stored Communications Act (SCA), the USA Patriot Act, Wiretap Act, and the Foreign Intelligence Surveillance Act (FISA).


Table of Contents

  1. Introduction
  2. Search and Seizure from 2010 to 2012
    1. Supreme Court of The United States
    2. Fifth Circuit
    3. Texas Court of Criminal Appeals
    4. Lower Texas Courts of Appeals
  3. K9 Detection Teams
    1. Dog Sniff is not a Search
    2. The "Alert," the Real Focus of the Motion to Suppress
  4. The Technological Frontier
    1. Global Positioning System (GPS)
    2. Third Party Records
  5. Conclusion

I. Introduction

We find ourselves in a transitional period for our nation and our rights and liberty under the Fourth Amendment. These past few years have seen significant developments in criminal jurisprudence, especially with regard to the Fourth Amendment. The following cases, issues, and material represent one lawyer’s view of important recent precedents and what we may expect in the future as our courts and elected officials struggle to coalesce our eighteenth century Constitution with twenty-first century technological innovation.


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II. Search and Seizure from 2010 to 2012

The past two years have seen some substantial changes in case law while old precedent has come under renewed scrutiny. The following represents published search and seizure cases decided since January 1, 2010 in The Supreme Court of The United States of America, The Fifth Circuit Court of Appeals, and The Texas Court of Criminal Appeals.


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A. Supreme Court of the United States

1. Exclusionary Rule:

Kentucky v. King, 131 S.Ct. 1849 (2011)

Although warrantless searches are presumptively unreasonable under the Fourth Amendment, the Court has carved out exceptions to that general rule for (among other things) exigent circumstances, such as the imminent destruction of evidence. The lower courts had held that the exigent circumstances rule did not apply when the exigency was created by police conduct, but there was no consensus on how to determine when police impermissibly create such exigencies. In Kentucky v. King, the Court held that the exigent circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to the premises.

The case arose from efforts by police to follow a suspected drug dealer into an apartment building. Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment: they then knocked on that door and identified themselves as police. When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found respondent Hollis Deshaun King, along with marijuana.

In reaching its holding, the Court rejected several other tests adopted by lower courts including the “bad faith” requirement which would be inappropriate because only objective reasonableness is relevant. The “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.”

The Court explained that its test will still provide “ample protection for the privacy rights that the Amendment protects.” Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come inside. “Occupants who… elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” the Court warns.

In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”; in a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]” To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”

Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock. The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant.

In its opinion, the Kentucky Supreme Court had assumed without deciding that exigent circumstances were present in this case, and the Court’s opinion did not resolve that question, instead leaving that factual question open for the Kentucky Supreme Court to decide on remand.

Davis v. United State, 131 S.Ct. 2419 (2011)

Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to the arrest, Officer Miller searched the vehicle and discovered a gun in his jacket. Davis was subsequently charged with being a convicted felon in possession of a firearm. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. The U.S. Court of Appeals for the Eleventh Circuit found that while the search was illegal the evidence found in the vehicle was still admissible. Davis obtained a writ of certiorari on the issue of whether the good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional.

The Court follows a summary of New York v. Belton and similar automobile search-incident-to-arrest cases with a description of the exclusionary rule; not as a personal, individual right, but rather as a tool only to find application when the benefit of deterring future violations of the Fourth Amendment outweighs the heavy social costs of letting the guilty go free. The Court adopts this stance to the absolute detriment of its older conception of the exclusionary rule as “synonymous with violations of the Fourth Amendment.” Arizona v. Evans, 514 U.S. 1, 13 (1995) (citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971)).

Relying on Herring v. United States, 555 U.S. 135, 141 (2006) the court solidifies that deterrence is the purpose of the exclusionary rule. Although the search was unconstitutional under Gant, Davis concedes that the officer conducted the search under then-binding Circuit law and thus was not culpable under that existing law. Because Davis’s conviction had not become final when Gant was decided he can use that new precedent to retroactively seek relief. However the exclusionary rule is not retroactive in that capacity as a remedy and applies only where its “purpose is effectively advanced” but not for Davis.


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2. 18 USC 1983 Remedies for the Fourth Amendment

Ryburn v. Huff, 132 S.Ct. 987 (2012)

A high school student, Vincent Huff, had been the subject of bullying and had been absent for two days from his high school. Rumors of a letter Vincent had written threatening to “shoot up” the school and friends statements that he was capable of carrying out the alleged threat prompted officers of the Burbank California Police Department to contact him at his home. After getting Vincent and his mother to the door his mother refused them entry to the house. The officers asked if there were any guns in the house and Vincent’s mother immediately turned around and ran into the house followed by one of the officers who chased after her. Three other officer eventually entered the house and remained for 5 to 10 minutes before Vincent’s father came home and challenged the officer’s authority to be there. The Officers concluded that the rumors which prompted the initial contact were false.

The Huffs brought a claim under 42 U.S.C. §1983. In this Per Curiam opinion the Supreme Court held that “reasonable police officers in petitioners’ position could have come to the conclusion that the Fourth Amendment permitted them to enter the Huff residence if there was an objectively reasonable basis for fearing that violence was imminent. And a reasonable officer could have come to such a conclusion based on the facts as found by the District Court.”

City of Ontario, California v. Quon, 130 S.Ct. 2619 (2010)

Quon was a police officer for the City of Ontario. He was issued a pager that sent and received text messages. There was a contractual limit on the amount of texts that could be sent and received. The police officers were breaching the limit of texts allowed by the contract between the department and the service provider, Arch Wireless. The department then requested the text of all the officers messages while on duty. Arch turned over the texts of all the messages that Quon and other officer sent and it was discovered that a majority of Quon’s texts were not work related and some were sexually explicit. Quon was disciplined and subsequently file this 1983 claim that the search of his text messages was unreasonable. The Ninth Circuit found that there were several less intrusive means to accomplish the department’s goal, that Arch Wireless had violated the Stored Communications Act (SCA) by turning over the text, and thus the search was unreasonable.

The Supreme Court reversed the Ninth Circuit and held that because the search of Quon's text messages was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. The Court did not reach if Quon had a reasonable expectation of privacy in the workplace communications but assumed arguendo that even if he did it was not broken in violation of the Fourth Amendment. Petitioners' warrantless review of Quon's pager transcript was reasonable under the O'Connor v. Ortega, 480 U.S. 709 (1987) plurality's approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope.

Messerschmidt v. Millender, 2012 WL 555206 (Feb. 22, 2012)

Following a domestic violence incident where Jerry Ray Bowen fired five rounds at his girlfriend from a sawed off shotgun detective Masserschmidt began an investigation into Bowen’s gang affiliation. Bowen in the mean time began living at his former foster mother Agusta Millender’s home. Masserschmidt subsequently drafted an affidavit for a warrant that he had his supervisor and an assistant district attorney review before obtaining the warrant from a magistrate judge. The warrant was issued for all firearms and ammunition, as well as evidence indicating gang membership of Millender’s residence. The warrant was executed and the shotgun and some shotgun ammunition was seized.

Despite this warrants overbredth the Supreme Court immunized the officers from Mellinder’s 1983 action claiming a violation of the Fourth Amendment. Relying on the Leon good faith exception and finding the affidavit was not completely “lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable” the court denied relief to Millender.


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3. Pre-text detainment of suspected terror suspects

Ashcroft v. al-Kidd, 2011 WL 2119110, (May 31, 2011)

While boarding a plane to Saudi Arabia, federal authorities detained Al-Kidd pursuant to the federal material witness statute. 18 U. S. C. §3144. The statute gives federal judges the authority to order the arrest and detainment of potential witnesses in a criminal case whose testimony is material. A federal judge may order the arrest and detainment of a material witness when the presence of the witness at trial is unlikely through the use of a subpoena. Al-Kidd was arrested and detained for 16 days and on supervised release for 14 months. He was released following the disposition of a terrorist trial involving al-Hussayea. Al-Kidd was never used as a witness for that trial.

Al-Kidd brought suit against Attorney General Ashcroft alleging that the Attorney General used 18 U. S. C. §3144 as a pre-textual detainment policy. Al-Kidd alleges that Attorney General Ashcroft used the federal material witness statute as pretext in authorizing the detainment of terrorist suspects. He argued that Ashcroft carried out this policy against terrorist suspects when the Government did not have enough evidence to charge the individual with a crime. The District Court denied Attorney General Ashcroft’s motion to dismiss based on absolute or qualified immunity. The 9th Circuit affirmed the lower court’s ruling, stating that Ashcroft cannot claim absolute or qualified immunity because the Fourth Amendment prohibits pre-textual arrests absent probable cause of criminal wrong doing.

In an unanimous opinion by Justice Scalia, the Court reversed the 9th Circuit’s decision holding that Ashcroft is able to use qualified immunity as a defense. The Court stated that qualified immunity shields a government official from money damages unless: (1) the official violated a statutory or constitutional right, and (2) that right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818.

Under this two prong analysis, the Court found that Ashcroft did not violated either. First, the Court found that Ashcroft did not violate a statutory or constitutional right because a detained material witness cannot challenge the constitutionality of his arrest on the grounds of improper motive, when the material witness was reasonably arrested and detained pursuant a valid warrant. Here, federal officials obtained a valid warrant from a neutral magistrate and therefore Ashcroft could not have had an improper motive.

Second, the Court found that Ashcroft did not violate a clearly established right. For a public official to violate a clearly established right, the official must knowingly violate a right and the right must be sufficiently clear at the time of the incident. Here, al-Kidd’s arrest did not violate a clearly established right because at the time of the incident, no judicial opinions had been released pertaining to this issue.


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4. Cases Argued But Not Decided as of March 2012

Florence v. Board of Chosen Freeholders of the County of Burlington, (10-945) Argued Oct. 12, 2012

This case received extensive media coverage as the case of a strip search for a traffic stop. Albert Florence was arrested pursuant to a warrant for failure to pay a fine for a traffic violation which he had already paid. He was held in different detention centers over the course of seven days and was made to strip naked and spread his butt cheeks during a search before he was admitted to one of the facilities. The question in this case seems to be one of a balancing test. On one side the security of detention facilities and on the other the Fourth Amendment. Florence filed a lawsuit against the jail officials and the Federal District court agreed that the strip search violated Florence’s constitutional rights but the Third Circuit overturned that holding and determined that the security of the jails allowed this to be a reasonable search under the Fourth Amendment.


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5. Cases Granted Certiorari

Florida v. Jardines, No. 11-564 (argument to be determined)

As discussed at length below, after a tip to the Miami Police that Joelis Jardines was using his home to grow marijuana officers brought a chocolate Labrador named Franky to the front door of Jardines’ home. Franky was a drug detection dog and alerted close to the front door of Jardines’ home. The police used this information to obtain a warrant. Execution of the warrant resulted in arrest of Jardines’ for drug trafficking and stealing thousands of dollars’ worth of electricity for the grow operation. The Supreme Court of Florida agreed with Jardines motion to suppress the evidence on Fourth Amendment grounds and determined that the dog sniff was a search. The Court in Florida relied on Kyllo v. United States, 533 U.S. 27 (2001). The State of Florida citing several circuit court opinions on point argue that like a dog sniff on airplanes or of vehicles the sniff of a house is not a search and therefore not subject to the Fourth Amendment.


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B. Fifth Circuit Court of Appeals

1. Computer Searches

US v. Pickett, 598 F.3d 231 (5th Cir. 2010)

Antonnio Pickett pleaded guilty to one count of possession of child pornography, and now appeals the district court’s denial of his motion to suppress physical evidence and custodial statements. Pickett worked as a commercial driver for an oil and gas production site thirty miles off the coast of Louisiana in international waters. During the time he was stationed there, ICE learned that Pickett had subscribed to child pornography websites, and also had an outstanding warrant for domestic violence. Ice agents, customs agents, and Sheriff’s deputies encountered Pickett when he returned to the dock from international waters. Ice agents detained him and conducted a secondary customs inspection of Pickett and the other crew boat passengers.

The agents relied on the border search exception to view the contents of Pickett’s thumb drives, portable hard drives, and laptop memory card. No warrant was obtained for the search, which revealed images of child pornography. Following the search he admitted to accessing and downloading the illegal pornographic images, and thereafter obtained a warrant for a more intrusive search. Pickett moved to suppress the child pornography images found during the search at the Venice dock, along with statements he made, as well as fruits of an illegal warrantless search.

The Court of Appeals held that the search of the defendant’s belongings was justified under the border search exception. The border search exception permits a government officer at an international border to conduct a “routine” search and seizure, “without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country,” and need not take place at an actual border. It may take place at the functional equivalent of a border. Pickett attempts to distinguish the facts from US v. Stone, since, as Pickett argues he was travelling form a Federal enclave. Yet, Stone holds that defendant’s point of origin is irrelevant to the constitutionality of a border search so long as a border crossing has occurred. The court, therefore, rejects Pickett’s arguments, since the border search exception applied.


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2. Cell Phone Search

United States v. Curtis, 635 F.3d 704 (5th Cir. 2011)

Craig Curtis was convicted of conspiracy to commit mortgage fraud and aggravated identity theft. Curtis was arrested for falsifying a statement on a credit application. As he was arrested he was talking on his cell phone which he placed on the console of his vehicle as they pulled him out of the car. One of the arresting officers immediately began to look through his phone and read his text messages. Two text messages that the officer read (either at the stop or subsequently at the station during booking) implicated him with two other co-conspirators in the crime of conspiracy to commit mortgage fraud. The government subsequently entered these text messages at trial after a motion to suppress was denied.

The court relied on United States v. Finley where the Fifth Circuit held that searching text messages incident to an arrest was constitutional. Further “the Fourth, Seventh, and Tenth circuits have reached the same conclusion on similar facts.” This was based upon the search of containers within the immediate are around the arrested individual. The court also held that Arizona v. Gant did not apply to the conduct but even if it did the good faith exception to the exclusionary rule would have ruled the suppression and they would have declined to suppress the text messages.

United States v. Aguirre, 664 F.3d 606 (5th Cir. 2011)

Sherry Aguirre was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. §8439b). Arnold Mendoza was arrested in his vehicle with a quantity of cocain. An hour after the arrest several officers returned to his residence for a knock and talk, which resulted in a warrantless entry after the officers heard the destruction of evidence. The occupants, including Aguirre, were detained for two hours while a warrant was obtained. Upon execution of the warrant the officers seized Aguirre’s cell phone which was in plain view on her bed in the house. Aguirre gave the officers the password to her phone and they searched the text messages and found inculpatory communications.

The Fifth Circuit held that there was exigent circumstances to justify the warrantless entry and thus the subsequent search of Aguirre’s cell phone was not tainted. The warrant was based upon probable cause and did not fail the particularity requirement of the Fourth Amendment even thought the cell phone was not named in the warrant. The warrant listed in attachment A a list that catalogued a wide variety of items used to facilitate drug sales including “records, sales and /or purchase invoices,” as well as financial records including books, records, correspondence, and “documentation evidencing the acquisition, concealment, transfer and expenditure of money or assets” and authorizing the search of personal papers, including address books and telephone directories, and personal assets including computers, disks, printers and monitors utilized in the drug trafficking organization.

The Fifth Circuit held that the cell phone was not listed in the warrant. But a cell phone “can fairly be characterized as the functional equivalent of several items listed in attachment A, including correspondence, address books and telephone directories.”

United States v. Ochoa, 667 F.3d 643 (5th Cir. 2012)

The Defendant was convicted of possession with intent to distribute cocaine. He contends that the police obtained information from his cellular phone in violation of his Fourth Amendment rights. The district court denied his suppression motion. The Fifth Circuit held that the cell phone issue need not be reached, because the cell phone would inevitably have been discovered pursuant to a routine vehicle inventory search following the defendant’s arrest.


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3. The Exclusionary Rule

United States v. Flores, 640 F.3d 638 (5th Cir. 2011)

The defendants were convicted and sentenced for aiding and abetting possession with intent to distribute PCP. After two persons where busted with 900 grams of PCP in Pecos, Texas the defendants were implicated as the source of the PCP in California. The DEA began to investigate and based upon the statements of the two in custody and working with California law enforcement they obtained a search warrant for three residences in Los Angeles.

However, The Tajuata house which was listed on the warrant, turned out to be the former residence of Flores's grandmother, was not the house that Texas DEA had actually intended for the Los Angeles authorities to search and was different from the physical description on the search warrant.

“The address was entered on the search warrant—by accident, the government argues—after Texas DEA's surveillance of the original target home revealed that the vehicles located there were registered to the Tajuata address. Texas DEA later communicated this incorrect address to Los Angeles police, who executed the search warrant. The actual target home was the Central Avenue house—the home of Flores's sister, where [the defendants already in custody] Williams and Mitchell had dropped off the PCP and later retrieved it in packaged form.”

The defendants filed a motion to suppress the evidence from that house based on the mistake in the warrant. “The district court held that Flores had no reasonable expectation of privacy in the Tajuata house, and thus no standing to challenge the search…Flores had moved out of the home two to three years prior to the search, and that no one was living there in November 2008. Although Flores had keys to the house, visited there occasionally to collect mail, and had durable power of attorney from the owner of the home (his grandmother), the district court concluded that Flores had failed to demonstrate a possessory interest in the property.”

Despite this district court discussion the memorandum opinion by the district court ultimately relied upon the “good faith” exception as describe in Leon. The Court further affirms that the evidence seized from the house which was properly named in the warrant and contained a PCP lab was “inextricably intertwined” with evidence used to prove aiding and abetting because it demonstrated the continuing nature and structure of the drug organization.

U.S. v. Jackson, 596 F.3d 236 (5th Cir. 2010)

Jackson and Midkiff were indicted by a federal grand jury for conspiracy to manufacture and distribute methamphetamine. Both were accused of possessing a firearm is furtherance of a drug crime, and Midkiff was charged with being a felon in possession of a firearm. Federal arrest warrants were issued. Additionally, a state agent in the federal case secured a state search warrant for the property. When officers entered the residence, they observed Jackson place something under the couch which was later found to be marijuana. The officers conducted a protective sweep of the residence to make sure nobody else was present. During the sweep/search, the officers found a safe which they opened with the combination Jackson gave them. Inside, they found guns and crushed pseudoephedrine pills.

Jackson argues that the information found in the affidavit for the state search warrant was incorrect and incomplete and therefore rendering the good-faith exception inapplicable. As the district court partly based its ruling to not suppress the evidence on the inevitable discovery doctrine, the Court did not issue an opinion on the good-faith exception argument. The Court stated that, even without the state search warrant, the federal arrest warrant gave the officers the ability to enter the residence. This also gave the officers the authority to search the immediate area surrounding the place of arrest.

The officers were acting within their authority when they discovered the marijuana under the couch, which would have given them probable cause to obtain a search warrant. In addition to the marijuana, the officers found other materials used to manufacture methamphetamine on the property outside the house, which the officers had the authority to be present on, that was seizable under the plain view doctrine. Once seized, stated the Court, the evidence could not only be used in trial but could also be used as evidence for probable cause for a search warrant.

The Court found that even if the officers had had a reason to question the validity of the state search warrant, the officers could have used the other evidence found to obtain a search warrant and conduct a search. As the exclusionary rule is meant to put police in the same position they would have been in had no police misconduct occurred, excluding the evidence would have put the police in a worse position absent the allegedly infirm state search warrant.


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4. Reasonable suspicion was found in these cases

United States v. Gomez, 623 F.3d 265, 267-68 (5th Cir. 2010)

“On October 20, 2008, the Austin Police Department received a 911 call from a concerned citizen who, when asked his name, identified himself as “Mike.” Mike informed the operator that he had seen an unidentified Hispanic man around twenty years of age and weighing 175 to 180 pounds brandishing a “black and gray” pistol and threatening individuals at a “little yellow gas station” on “the corner of Ceaser [sic] Chavez and Comal.” Mike also told the operator that the man had entered a black Honda SUV, license plate T80PDW, with a white female driver and black male front-seat passenger.

While Mike readily provided his name to the operator, he declined to wait for police to arrive at his location after telling the operator he was late for work. The 911 system revealed that Mike's telephone number was 512–542–9561 and that the call had originated from 1621 East Cesar Chavez Street, Austin, Texas.

Sometime later, police discovered that the number and address captured by the 911 system led to a payphone. Officers testified that they were told the name of the caller who reported the incident, his address, and his phone number. With respect to the phone number, the officers testified that most of the calls they respond to come from home or cellular phones, and they assumed they could follow up later as usual. Moreover, the officers testified that they did not know the tip had been called in from a payphone at the time of the stop.

Only a few minutes later, while en route to the scene, one of the responding officers spotted the vehicle described in the 911 call heading in the opposite direction, turned around to follow it, and radioed in the license plate information to confirm he had the correct vehicle before conducting a felony stop with assistance from two other patrol cars. The officers removed the driver, a black male later identified as Timothy Mitchell, and the front passenger, a white female later identified as Heather Hall (“Hall”), from the car.

Hall informed officers that there was a handgun in the back of the car that belonged to the male passenger in the backseat. At that point, Gomez was removed from the vehicle. As Gomez was removed, officers spotted a handgun protruding from underneath the back of the driver's seat in plain view. The officers seized the gun. While still detained at the scene, Gomez was identified as a convicted felon and arrested for illegally possessing a weapon.”

United States v. Rains, 615 F.3d 589, 595 (5th Cir. 2010) cert. denied, 131 S. Ct. 1519 (2011)

“The police confirmed Dr. Hada's suspicion that the iodine might be used to manufacture methamphetamine, and Dr. Hada's clinic employees thereafter notified police officials when they noticed individuals purchasing large or unusual amounts of iodine. On the day of the stop, a clinic employee called the Andrews Police Department with information that a female had just purchased three bottles of iodine from Dr. Hada's clinic.

The clinic records indicated that this same woman had purchased eleven bottles of iodine over the prior nine months, and the clinic employee indicated to the police her “numerous” previous purchases. The clinic employee also informed the police that the individual in question listed an address in Odessa, Texas as her residence, meaning that the woman drove from Odessa to Andrews, a rural area approximately thirty-five miles northwest of Odessa, to make these purchases. The clinic employee gave the police the license plate number and a description of the vehicle in which the woman left.

Based on this tip, the police stopped the vehicle, which belonged to Aldridge. Aldridge, the woman who purchased the iodine, and one other person were in the car. During the stop, a police officer noticed a syringe and arrested the occupants for possession of drug paraphernalia. A further search, conducted incident to the arrest, yielded the three pint-sized bottles of iodine purchased from the clinic, plastic tubing, two drug pipes, and receipts for muriatic acid and hydrogen peroxide, which are also used in the manufacture of methamphetamine.”

United States v. Rodriguez, 601 F.3d 402 (5th Cir. 2010)

Austin officers arrested a man for possession of an illegal shotgun after they responded to a domestic disturbance phone call in which the complainant reported she had been threatened and assaulted and that there was a gun in the house. When police arrived, the complainant gave them permission to enter their trailer and the officers noted that children were present. When officers realized that the gun in the trailer had not been secured, they, under the direction of the defendant, retrieved it from under the bed. Officers later realized that the shotgun’s barrel was too short and that the serial number had been obliterated and arrested the defendant.

On appeal, Rodriguez argued that the officers had not been authorized to conduct a protective sweep of the trailer as they did not have a reasonable suspicion that there was someone else in the trailer who posed a danger to either the officers or others. The Fifth Circuit discussed that the officers observed that children were present in the trailer and that the complainant had not informed the dispatcher of their presence.

Additionally, the officers were aware of a previous domestic disturbance call involving the defendant and a young man. The Court decided that, just as the complainant had failed to tell the dispatcher about the children, that there could have been someone else, including the aforementioned young man who could have used the weapon against them. They also pointed to the fact that the defendant’s father was actually also present in the trailer to substantiate the officer’s reasonable suspicion.

Rodriguez also argued that the element’s of the plain view doctrine had not been met as the incriminating nature of the shotgun, the fact that the barrel of the shotgun was one inch too short and the serial number was erased, was not immediately apparent. While the Court agreed that officers could not have immediately noticed this and had not noticed it immediately, they stated that the officers were justified in temporarily seizing the shotgun given the circumstances and the nature of domestic violence situations. As the shotgun was properly temporarily seized, the officers were able to further examine it and then determine that it was subject to permanent seizure as contraband.

United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010)

Police went to the defendant’s home to arrest his fiancé. Handcuffed, the fiancé admitted that the defendant was inside the house. The fiancé requested she be allowed reentry into the home to put on less revealing clothing. The officers informed her that they would not allow her to reenter the house without their accompaniment. Faced with these choices, the fiancé consented and the police conducted a protective sweep of the home. They arrested the defendant, and seized an ammunition clip attached to his belt along with firearms lying in plain view.

The Fifth Circuit found that the fiancé implicitly consented to the officer’s entry into the home. In so doing, they rejected the defendant’s argument that the fiancé’s consent was “manufactured” in a manner similar to police manufactured “exigency.” The Court concluded that the defendant cannot “circumvent the voluntary consent jurisprudence by applying exigent circumstances law instead.” The Court also found justification for the warrantless protective sweep because the defendant was a murder suspect. This was sufficient to constitute the “specific and articulable facts” requirement necessary to show that such a sweep was justified.

The Court does reject the Government’s argument that the police may execute a Terry stop in the suspect’s home; instead reaffirming Terry’s adage that the stop and frisk doctrine was invented to “detain individuals on the street.” Nevertheless, the Court found that the searches of the defendant’s person were sufficiently justified under the protective sweep doctrine, and affirmed the trial court’s denial of his motion to suppress.


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5. Reasonable suspicion was not found in these cases

United States v. Olivares-Pacheco, 633 F.3d 399, 401 (5th Cir. 2011)

“The vehicle being driven by Olivares–Pacheco was spotted by the agents at approximately 10:30 A.M. on Monday, September, 14, 2009, near Odessa, Texas (well over 200 miles from the United States–Mexico border), traveling east on Interstate 20 (“I–20”). Olivares–Pacheco's vehicle was an extended-cab Chevrolet truck, occupied by himself and five other adult individuals. The agents observed the truck as they were driving west on I–20, made a U-turn across the median, and began to follow it. While following the truck, the agents observed that it was dragging some brush.

The agents then ran a record check on the vehicle and learned that it was registered in Garland, Texas, in the Dallas–Fort Worth metroplex. When they then drove up along the left side of the vehicle, which was traveling in the right lane, none of the passengers made eye contact with the agents. They saw one of the passengers, who was seated in the front seat, point towards an unremarkable field on the right side of the vehicle, the one opposite from the agents.

All of the passengers then looked right, towards the field; none looked at the agents. (At the suppression hearing, the agents ventured the opinion that this conduct was “an obvious attempt to avoid making eye contact,” even though neither agent could confirm whether the passenger who pointed, or any others in the truck, had seen or noticed them.)

The agents decided to stop the truck, after which Olivares–Pacheco and the other passengers admitted to the agents that they were in the United States illegally. Olivares–Pacheco was indicted for transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He filed a motion to suppress the evidence from the traffic stop, contending that it was not supported by reasonable suspicion and was thus a violation of the Fourth Amendment. Olivares–Pacheco pleaded guilty to one count of transporting illegal aliens. He waived his right to appeal the conviction and sentence, except as to his motion to suppress.”

Jimenez v. Wood County, Tex., 621 F.3d 372, 374 (5th Cir. 2010) reh'g en banc granted, 626 F.3d 870 (5th Cir. 2010) and on reh'g en banc, 660 F.3d 841 (5th Cir. 2011)

“Ms. Jimenez was arrested for hindering apprehension, which the parties agree was a Class A misdemeanor under these circumstances. She was taken to the Wood County jail where an employee of the Wood County Sheriff's Department performed a strip search on her.

The parties agree that, at the time, it was the department's policy to perform strip searches on all detainees entering the jail who were arrested for a felony, Class A misdemeanor, or Class B misdemeanor.” He Court held that “We have repeatedly concluded that, under Wolfish, a strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband.”

The Court found that this precedent stood with regard to reasonable suspicion. Then in an issue of first impression they considered if the offence of hindering apprehension Tex. Penal Code §38.05(a) was a “minor offense” for purposes of a strip search. The Court held that “hindering apprehension—other than felony hindering apprehension under section 38.05(d), the status of which is not before us—is, given its misdemeanor status, a minor offense for these purposes and reasonable suspicion was therefore required for a strip search.”

The Court then found that there was no reasonable suspicion that the defendant had weapons and was subject to strip search. This case is subject to being overturned by Florence v. Board of Freeholders of the County of Burlington which is pending opinion in the Supreme Court of the United States.


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6. Defendant was in Custody?

United States v. Cavazos, 668 F.3d 190 (5th Cir. 2012)

“On September 1, 2010, between 5:30 a.m. and 6:00 a.m., Cavazos woke to banging on his door and the shining of flashlights through his window. U.S. Immigration and Custom Enforcement (“ICE”) Agents, assisted by U.S. Marshals, Texas Department of Public Safety personnel, and Crane Sheriff's Department personnel, were executing a search warrant on Cavazos's home. The warrant was issued on the belief that Cavazos had been texting sexually explicit material to a minor female. After Cavazos's wife answered the door, approximately fourteen law enforcement personnel entered Cavazos's residence.

Immediately upon entering, government agents ran into Cavazos's bedroom, identified him, and handcuffed him as he was stepping out of bed. Agents then let Cavazos put on pants before taking him to his kitchen. Cavazos's wife and children were taken to the living room. Cavazos remained handcuffed in the kitchen, away from his family, while the entry team cleared and secured the home. ICE Agents Le Andrew Mitchell and Eric Tarango then uncuffed Cavazos and sat with him in the kitchen for approximately five minutes while other officers secured the home.

Once the house was secured, agent Tarango asked Cavazos if there was a private room in which they could speak. Cavazos suggested his son's bedroom. In the bedroom, Cavazos sat on the bed while the two agents sat in two chairs facing him. The agents asked Cavazos if he wanted the door open, but Cavazos said to keep the door closed. Agents Mitchell and Tarango informed Cavazos that this was a “non-custodial interview,” that he was free to get something to eat or drink during it, and that he was free to use the bathroom. The agents then began questioning Cavazos without reading him his Miranda rights.”

Cantrell v. City of Murphy, 666 F.3d 911 (5th Cir. 2012)

Parents brought civil rights action against city and officers for allegedly violating mother’s 4th Amendment rights by taking her into custody. Officers responded to a 911 call, when they arrived at Ave Marie Cantrell’s home they saw her son, Matthew, lying on the couch with no signs of life, he was resuscitated, yet died a few days later. Ave Marie made multiple suicidal statements when learning the dire condition of her son.

Those statements, coupled with circumstances and information established probable cause to believe that she may have committed a crime; the officers had decided that emergency mental commitment was appropriate. The officer noted “that he was seeking emergency detention because he had reason to believe that Ave posed ‘a substantial risk of serious harm.’” Ave Marie was released that same day.

The court applied a two-step analysis to determine whether a defendant is entitled to summary judgment on the basis of qualified immunity. First, determine whether, viewing the summary judgment evidence in light most favorable to the plaintiff, the defendant violated the plaintiff’s constitutional rights. If so, they next consider whether the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the conduct in question. The court applies an objective standard based on the viewpoint of a reasonable official in light of the information then available to the defendant and the law that was clearly established at the time of the defendant’s actions. The court held that “the officers are entitled to qualified immunity because they had probable cause to detain Ave.” In its reasoning it cites Texas Health and Safety Code § 573.001, stating when a peace officer may–without a warrant–take a person into custody.


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7. Other Issues

U.S. v. Roberts, 612 F.3d 306 (5th Cir. 2010)

Officer received a tip that some residents of an apartment were in possession of stolen merchandise. Upon investigation, officers talked to other residents who stated a white male known as “B” tried to sell them a laptop they believed was stolen and had had a gun on his hip while doing so. They pointed out B’s apartment and truck and told the officers that a black male’ “Major” lived with “B” and that numerous other people stayed there as well.

A license plate check revealed the owner to be Brian Roberts, wanted for warrants of traffic violations, and the officers determined that Roberts was “B”. While waiting for back-up, the officers observed a black male enter and exit the apartment but did not see a white male. When officers knocked, Roberts answered the door and identified himself. While Roberts retrieved his ID, officers noticed several other people in the apartment and then saw a pistol magazine and ammunition on the entertainment center. They placed Roberts in handcuffs, ordered the other occupants against the wall and conducted a protective sweep.

When officers knocked on a locked bedroom door, a black man, Booth, answered and officers saw a shotgun in the room. The shotgun was secured and Booth was arrested for an outstanding warrant. Both Roberts and Booth were indicted for federal weapons offenses.

The defendants argued that the officers had no justification for entering the apartment, did not have justification for their protective sweep, and did not satisfy the requirements for the plain view doctrine to seize the guns. The Fifth Circuit determined that, despite the fact that Roberts had identified himself at the door, the officers were justified in stepping into the room to control their suspect when he stepped back into a dark room to get his ID from his pocket. The Court determined that the tip from the other apartment residents that Roberts had a gun brought forth legitimate officer safety concerns and justified their initial entrance into the apartment.

The Court also determined that the officers were justified in conducting a protective sweep as they had been told that Roberts had a gun, they saw other persons in the darkened room, they had seen another individual exit and reenter the apartment, they observed ammunition, and Roberts told them there was a pistol under the couch. The Court pointed out that the justification for the protective sweep was not limited to Robert’s actions, but also the potential threat of any of the other occupants of the room.

As the defendants had not argued their third point, that the elements of the plain view doctrine were not met, at the suppression hearing, the Court’s review was for plain error. The Court determined that the officers were justified in temporarily seizing the firearms under the circumstances. Even though Roberts had told police about the pistol under the couch and the police moved the other residents away from that area, the Court posited that, in the event of a scuffle, any of the unsecured, not handcuffed occupants could have accessed the unsecured weapon. The Court determined that the officers acted reasonably, the touchstone of the Fourth Amendment, and were entitled to maintain control over the weapons during their investigation, after which they discovered that Roberts was an unlawful user of controlled substances and that Booth had a prior felony conviction.

United States v. Oliver, 630 F.3d 397 (5th Cir. 2011)

The defendant’s girlfriend turned over a cardboard box and laptop belonging to the defendant. He was subsequently charged with multiple counts of mail fraud and identity theft. The court found that, while the couple only dated for a few weeks, the Defendant’s decision to leave the box at his girlfriend’s apartment made it reasonably foreseeable that she would look through the box for a method of contacting him, thus making her private search of these materials, and her act of handing them over to authorities, reasonably foreseeable and not in violation of the Fourth Amendment.

In so holding, the Court reject’s the defendant’s argument that the police must know the extent of a private actor’s search before the private search doctrine can apply. Subsequent searches of a notebook contained in the box were also lawful because the context of the document, once the defendant finally confessed in light of prior searches of the box, was plainly obvious to the officers.

Similarly, the search of the laptop, which was based upon a warrant obtained after the police obtained the cardboard box, was lawful both because of the private search, and by virtue of the “independent source” doctrine. Because the affidavit relied upon confessions of the defendant and a compatriot describing the laptop, sufficient information warranting probable cause existed independent of the private search.

US v. Ned, 637 F.3d 562 (5th Cir. 2011)

Adrianna Mayfield, Jeremy Ned’s girlfriend, called the cops and told them that Ned was in possession of drugs. She described the Gucci bag the drugs were in, as well as his gray Jeep Cherokee, and where the vehicle was located. The police went to the location, saw that the Gucci bag was in the vehicle, and proceeded to do a narcotics search on the exterior of the locked, empty Jeep with his drug-detecting dog.

The dog alerted to drugs, and so the officer, with permission from another detective opened the Jeep with a slim-jim. The dog again alerted to the Gucci bag. Ned was not found on site, so the Jeep was inventoried, towed and impounded. Warrantless searches of automobiles are permitted by the Fourth Amendment if supported by probable cause to believe that the vehicle contains contraband or evidence of a crime. The court reaffirmed that an alert by a drug-detecting dog provides probable cause to search. The court affirmed his jury conviction and the district court’s denial of his motion to suppress.

US v. Hughes, 602 F.3d 669 (5th Cir. 2010)

Officers respond to a call that David Hughes had assaulted his niece and her boyfriend with an axe, and had driven away in a Nissan pickup truck to get a gun to kill them. His truck was observed, but he was with his sister in another car. An officer stayed with the truck until he was apprehended. Hughes was carrying in his wallet the truck’s title. After Hughes refused permission to search the truck, the officers obtained a warrant.

The officers state that there was a rifle sitting on the front passenger seat of the pickup, a fact Hughes denies. The officers contend they searched the truck only after it was towed to the Sheriff’s Department. Hughes argues the admission of the rifle should have been suppressed. The court upholds the lower court’s determination that the rifle be admitted, because in the case of contradictory testimony, the district court is entitled to decide whom to believe when both present reasonable views of the evidence. The court subsequently found no error in its decision to admit the rifle.

U.S. v. Zamora, 661 F.3d 200 (5th Cir. 2011)

After receiving a tip that there were drugs on the premises, officers began surveillance of a house of Zamora.. The tipster had previously provided information to the police and certain portions of the tip were corroborated. Officers observed Zamora and his brother drive up to the house. Zamora reparked a Volkswagen Beetle behind a black tarp covering a carport, as if to conceal what was happening behind the carport. Officers also observed that Zamora’s brother had entered the house wearing one shirt and exited wearing another before the brothers drove off. Officers later stopped their vehicle for traffic violations and as part of their drug investigation.

Zamora’s brother had an outstanding warrant and called in a drug-sniffing dog. The dog alerted to the car but no drugs were found. Zamora then signed a consent form for his home to be searched. There, officers found drugs, a money counter, packing materials, and a firearm. A drug-sniffing dog found drugs in the Volkswagen. Zamora told police that his brother did not know about the drugs in the car and he told them there was a pistol under his bed. Police then Mirandized Zamora who then stopped speaking to them.

During pretrial proceedings, Zamora moved to suppress all evidence found in the search of his home. The district court initially ruled that the gun was inadmissible as Zamora had not been Mirandized, but on rehearing, ruled that it was admissible under the inevitable discovery doctrine although it ruled that his statement concerning the gun was suppressed. On appeal, Zamora argued that the search of his home was the fruit of an unconstitutional traffic stop. The Court found that the officers had two reasons for the stop. The vehicle had a canceled rear license plate and no front license plate.

The Court also said that the officers had reasonable suspicion based on the informant’s tip, their observations of the home, and their belief that Zamora lived there. The tip was found to have several indicia of reliability as the informant had previously proven to be reliable and the officers had corroborated parts of the tip. Additionally, the tip was received the morning the police began their investigation so it was not stale. After the police had spoken to the brothers and run a license plate check, the traffic stop no longer provided justification to continue to detain Zamora.

Despite this, the reasonable suspicion about their involvement in drugs remained and allowed them to bring the drug-sniffing dog. Once the dog alerted on the vehicle, the police were authorized to search it. Even though no drugs were found, the short detention to question Zamora and to allow him to sign the waiver, 13 minutes, was not unreasonable. As the officers did not act unreasonably, Zamora’s Fourth Amendment rights were not violated.

US v. Garcia, 604 F.3d 186 (5th Cir. 2010)

Lee Roy Garcia challenges the denial of his motion to suppress the cocaine that officers found secreted inside stereo speakers in the cab of his truck. Tex Department of Public Safety officers searched Garcia’s commercial truck while performing inspections at a weigh station. Garcia was selected for a level two inspection, and when told of the inspection, officers testified that he was acting odd, and upon looking at his log book the officers noticed some items that gave them cause for concern, which he had no answer to.

When the officers asked Garcia if the truck contained anything illegal, he responded that it did not and gave the officers permission to search the truck and trailer. While searching the cab the officers noticed fresh tool marks on the speakers, and when they removed the speakers they found nearly 30 kilograms of cocaine. The district court denied the motion to suppress, finding that he voluntarily consented to the search.

The court also found that the search was within the scope of the consent. When conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by the consent. The scope of consent is determined by objective reasonableness—what a reasonable person would have understood form the exchange between the officer and searched party—and not the subjective intent of the parties.

The searched party, who knows the contents of the vehicle, has the responsibility explicitly to limit the scope of the search, otherwise consent to a general request is evidence of general consent to search. Garcia did not qualify his consent. The court affirmed the denial of the motion to suppress.

U.S. v. Thomas, 627 F.3d 146 (5th Cir. 2010)

The Fifth Circuit reviewed the denial of a Franks hearing in Thomas. Between 2005 and 2007, two men committed a series of bank robberies across East Texas. Derrick Van Hodges was arrested when police had a glove dropped in one of the bank robberies tested for DNA. He was found in possession of a $10 bait bill. In a search of storage lockers and the home of Paul Edward Thomas, police found more bait bills from the robbed banks.

Thomas argued that the district court should have held an evidentiary hearing to examine errors in the affidavits supporting the search warrants. At trial, the government did not specifically address each alleged inaccuracy but argued that the defendants had not met their burden to require an evidentiary hearing. On appeal, the government conceded one error in the affidavits but argued that the other allegations are not erroneous.

The Court reviewed de novo the decision to deny a Franks hearing and found that even after the challenged information was redacted, the affidavits still linked the defendants to at least two of the robberies. Taken with the fact that the defendants matched the robbery suspect descriptions and the police had long suspected their involvement based on several suspicious encounters with them, the affidavits established probable cause.


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C. Texas Court of Criminal Appeals

1. Scope of Consent and K-9 sniffs

State v. Weaver, 349 S.W.3d 521 (2011)

Police officers approached Weaver at his welding shop looking for a wanted person. Weaver gave consent to search for the person. Over Weaver’s objection the police then searched a van on his property with a dog and found methamphetamine in the van. The van was parked outside of the shop that Weaver consented to be searched and the officers had already looked into the van and did not see the wanted person in the van.

The trial court granted Weaver’s motion to suppress and a divided court of appeals affirmed. The Court of Criminal appeals affirmed, holding that the scope of Weaver’s consent did not include a dog sniff of his van and that once the wanted person was found not to be at the location there was no further reasonable suspicion to conduct the dog sniff and that the van was not parked in an area that was open to the public but was on private property, therefore “the officers needed permission to be where they were when they initiated the dog sniff, but they did not have it.” Since Weaver objected to the request by the officers to search the van his consent was not present to allow further search without some suspicion. The dog sniff therefore violated the Fourth Amendment.


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2. Where there was reasonable suspicion

Derichsweiler v. State, 348 S.W.3d 906, 917 (Tex. Crim. App. 2011)

“At approximately 8:00 p.m., after dark on New Years Eve, December 31, 2006, Joe Holden and his wife, Joanna, were in the drive-thru lane at McDonald's. Joanna, who was behind the wheel, noticed that a man she did not know had pulled up beside them in a car. She described this man as “[j]ust kind of grinning and just being stopped beside us ... and looking straight at us [, which] just didn't seem normal to me.”

The man lingered for between thirty seconds to a minute before driving on. Having placed their order, the Holdens were asked to pull out of the drive-thru lane while their food was being prepared. When they did so, both Joe and Joanna noticed that the same stranger had positioned his car to the front of theirs and was again grinning and staring at them. This seemed to last for fifteen to twenty seconds, after which the man circled the restaurant and then pulled up behind, and to the left side of, the Holdens' car, “not quite blocking [them] in.”

He renewed his grinning and stared at them for about the same duration, maybe a little longer.2 The Holdens felt “threatened” and “intimidated” by the man's peculiar conduct.” A 911 call was placed and eventually appellant was arrested and charged with DWI. the totality of circumstances, including the appellant's strangely persistent, if admittedly non-criminal, behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity.

York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011)

Just outside of town, but in Smith County, Officer Bullard observed a car parked behind an Exxon station known to be burglarized often. The vehicle’s lights were shining into the Exxon and the car was running with a window down. York was in the vehicle asleep with his seat laid back, there was a smell of alcohol but no evidence of burglary. After the Officer woke York he asked for identification and York did not have any on him. York consented to a search of his person that turned up marijuana and methamphetamine.

A motion to suppress was filed and granted in a trial for the charge of failure to identify. The motion was granted based on the officer being outside of his jurisdiction when he stopped to investigate, and no reasonable suspicion. The state then began its prosecution for possession of methamphetamine.

The criminal defense attorney continually asserted the motion to suppress as well as res judicata grounds that would collaterally estop the proceedings based on the elements of the failure to identify prosecution and the opportunity the state had to put on additional evidence in that proceeding. Article 14.03. After the trial judge denied the motion to suppress a plea was entered and because of enhancements York received sixty years.

The Court of Criminal Appeals held that the city police officer had authority to arrest or detain York at the gas station because the gas station was in the county of his jurisdiction, that there was a reasonable suspicion that the defendant was publicly intoxicated and for burglary. The Court also held that the validity of the detention was not the ultimate fact of the first prosecution for failure to identify or the second for possession and thus there was no prosecutorial bar to re-litigate the validity of the detention in the second trial.


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3. Where there was no reasonable suspicion

a. Anonymous tip with no specific articulable facts lacks reasonable suspicion.
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011)

Martinez plead guilty to driving while intoxicated and possession of marijuana after the denial of a motion to suppress based on the allegation that the initial investigatory detention was without probable cause or reasonable suspicion thus making the subsequent arrest and search invalid. Officer Hurley of the Del Rio Police Department was on patrol and received a call from dispatch that an anonymous caller reported a male driver stopped at an intersection, put two bicycles in the back of his truck, and drove away.

The caller described a male driving a blue ford pickup truck, Officer Hurley spotted a green ford F-250 that “looked like it was blue” three quarters of a mile away from the intersection. Hurley followed the pickup but no traffic violations were observed. Hurley pulled the truck over and when he approached he saw two bicycles in the truck that were not visible from his vehicle. The caller came to the scene and confirmed that that was the truck they had called about.

No bicycles were reported stolen from that area and no charges against Martinez were ever filed for theft of a bicycle. The Court of Criminal Appeals held that “based on our review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, we find that Officer Hurley's investigatory detention of appellant was not supported by reasonable suspicion.”

US v. Raney, 633 F.3d 385 (5th Cir. 2011)

Raney was stopped by Houston Police Officer Rohan Walker for driving in the wrong lane of traffic when a lane was heavily congested by people pulling into a gas station following Hurricane Ike, and the related gasoline shortages. Following a search of his person, Raney was arrested and indicted in a single count indictment for being a felon in possession of firearm. Officer Walker pulled Raney over, and as he approached he could smell a strong odor of marijuana. Raney was asked to step out of the car, and as he did so the officer observed a brown object fall to the ground, which he believed was a marijuana cigarette.

Raney was placed in handcuffs, and conducted a search of his person. During the pat-down, the officer found a .45 caliber Sig Sauer in his waistband, and a search of the vehicle revealed ammunition in the glove compartment. A criminal history check indicated that Raney had a prior felony conviction. The government contends only that the stop was proper because Raney committed one or more traffic violations, thus permitting a search.

The Transportation code provides that a driver shall drive on the right half of the roadway unless he is passing another vehicle, an obstruction necessitates moving to the left, or the operator is on a roadway restricted to one-way traffic. In the instant case, the roadway was relegated to one-way traffic, and thus defeating any per se traffic violation. The government failed to establish the necessary objective basis justifying the traffic stop, therefore, the court vacated the district court’s denial of Raney’s motion to suppress and render an acquittal.

State v. Chupik, 343 S.W.3d 144 (Tex. Crim. App. 2011)

In a DUI prosecution where evidence is suppressed the court need not know the material of the evidence being suppressed to review the trial court’s decision on an interlocutory appeal by the state under Article 44.01(a)(5). It is sufficient that the prosecuting attorney certifies that the suppressed evidence is of substantial importance in the case.

b. Obtaining Drugs using a Taser
Hereford v. State, 339 S.W. 3d 111 (Tex. Crim. App. 2011)

Police were very eager to get whatever the defendant was chewing on out of his mouth. So eager that they pulled him out of the patrol car and threw him in the trunk and tasered him several times. This did not do the job as Hereford did not open his mouth.

After considering their options for a little while the officers transported Hereford to a hospital where another off duty officer tased him several more times, including at least once to the groin area. Finally Hereford opened his mouth and cocaine was found. Later more cocaine was found in his hand and his buttocks. The court of criminal appeals upheld the reversal of the trial courts denial of his motion to suppress on excessive force grounds under the Fourth Amendment. The Court stated that the continued use of the taser was unreasonable. There was no ongoing attempt by appellant to destroy the evidence and defendant was restrained in handcuffs behind his back.


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D. Lower Texas Courts of Appeals

Zibafar v. State, 2011 WL 4610793 (Tex.App-Houston 1st 2011)

Police received an anonymous phone call reporting that a particular vehicle was driving recklessly and swerving into other lanes. The anonymous caller followed the defendant’s vehicle until an officer made arrived to make contact with the vehicle and followed the defendant into the parking lot of a Burger King. The defendant circled the building and reportedly almost struck the drive-through menu before backing up and entering the drive-through lane. The officer noted that the observed actions of the vehicle corroborated the anonymous tip.

After the defendant pulled up to the cashier’s window, the officer parked his patrol car parallel to the defendant, exited his vehicle, and approached the defendant’s car. As the officer walked up to the window, the defendant reached into the center console, took a white Styrofoam cup, and poured its contents onto the passenger floor board. When the officer reached the window, he noted the odor of an alcoholic beverage and asked the defendant what he had poured out. When the defendant said that he did not know what the officer was talking about, the officer ordered the defendant to exit the drive-through and park his vehicle.

On appeal, the defendant first argued that the trial court erred in ruling that his encounter with the officer constituted a seizure as he was not free to leave and was therefore detained. The appellate court compared consensual encounters to investigative detentions stating that encounters are usually friendly exchanges of pleasantries or mutually useful information in which a reasonable person would feel free to disregard the officer and go about his business while investigative detentions occur when a person yields to the officer’s authority, is temporarily detained and does not feel free to leave.

After discussing a similar case in which the police contact was found to be a consensual encounter, the appellate court determined that the trial court did not abuse its discretion, noting that the officer did not activate his lights or sirens, use coercive language to assert authority and did not display his firearm or other police equipment in a fashion as to lead the defendant to believe that he was not free to leave.

The defendant then argued that the officer lacked reasonable suspicion to detain him. The appellate court noted that an officer’s reasonable suspicion can arise from information gathered by persons who witness the specific event and that an anonymous tip must be corroborated by the officer’s personal observations.

The appellate court then noted that here, the police received an anonymous phone call concerning a swerving car, the caller provided a detailed and accurate description of the car and its location, the caller followed the vehicle until police arrived, the officer observed the vehicle almost hit the drive-through menu and drive on the wrong side of the drive-through lane. The appellate court also considered the facts that the officer saw the defendant pour out his cup onto the floorboard and then smelled the odor of an alcoholic beverage in determining that the officer had reasonable suspicion that the defendant had been driving while intoxicated.

Turner v. State, 2011 WL4953438 *1 (Tex.App.-Dallas 2011)

The defendant was arrested for possession of marijuana. In this case, the officer was patrolling his regular route when he observed a vehicle, three cross-streets away, hit its brakes, turn on its headlights, and turn left down the next street. The officer activated his lights when the vehicle stopped at a red light and ran the license plate of the vehicle which revealed the owner to be from out of town.

The officer noticed that there were four people in the vehicle, which indicated a possible burglary team. The officer approached the vehicle and smelled marijuana coming from inside the vehicle. The driver, the defendant, after denying there was any in the car, admitted that there was marijuana in the ashtray after the officer informed him that the vehicle was going to be searched but stated that it belonged to a friend. After the officer found the marijuana in the ashtray, he arrested the defendant for possession of marijuana.

The appellate court reviewed the issue of whether the officer had reasonable suspicion to stop the defendant’s vehicle de novo as the issue at trial did not turn on the officer’s credibility, therefore putting the appellate court in the same position to review the facts as the trial court per Guzman. The officer’s specific, articulable fact reasons for stopping the vehicle, that it turned on its headlights and brake lights and took an immediate left turn and was registered to an owner from out of town and contained four people, was not enough to give the officer reasonable suspicion based on the totality of the circumstances.

The appellate court looked to the fact that the officer did not testify that the neighborhood was a high crime area, that there had been recent thefts, and he did not observe any activity indicative of a burglary team such as seeing a lookout, individuals wearing dark clothing, or that the vehicle was laden with stolen merchandise. The officer was also unable to testify that the defendants had driven off due to his presence rather than regular travel as he was unsure if the defendant had even seen him.

State v. Webre, 347 S.W.3d 381 (Tex. App.—Austin 2011, no pet.)

In Webre, the Defendant refused to provide both blood and breath samples and was arrested for Driving While Intoxicated. The police first became aware of Webre when the Austin Fire Department noticed his vehicle emitting plumes of smoke on I-35. Webre was found trying to start the smoking vehicle, he eyes bloodshot, smelling strongly of alcohol. His clothing was disheveled, his speech was slurred, he had poor balance as well as a stumbling gate, and he signs of horizontal nystagmus. He refused to submit to field sobriety tests.

The trial court granted Webre’s motion to suppress on the grounds that the warrant failed to articulate what purpose the police intended for the blood sample. The Austin Court of Appeals reversed, concluding that an affidavit in support of a search warrant need not specify the intended use of the evidence.

The four corners of the affidavit must establish the affiant’s belief that a specific crime has been committed, that the search will lead to evidence of that crime, and that the evidence is located in the designated location. The objection for failure to designate the intended use of the drawn blood goes to the second of these requirements – will the magistrate find it likely that the seizure of the material requested will reveal evidence of the offense.

The Austin Court held that, when making this determination, the magistrate could rely upon common sense and reasonable inferences. Common sense dictates that an officer wants to draw a suspect’s blood to test for alcohol or controlled substances -- alcohol is measured in the body in as a percentage of the blood’s overall content. The Court discourages “hypertechnical” review of magistrate determinations, particularly when the Court must pay deference to the issuing magistrate’s findings, a procedure which obviates the need for de novo review at trial.


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III. K9 Detection Teams

(For more information on this section, see our presentation on Drug Dog Searches)


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IV. The Technological Frontier

A. Global Position Systems (GPS)

The Supreme Court has finally weighed in on the use of GPS tracking devices without a warrant. In United States v. Jones, 132 S.Ct. 945 (2012) the “case requires [the court] to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th –century tort law.” Id. at 957 (Alito, J., concurring).

In an opinion written by Justice Scalia the Court holds that a search within the meaning of the Fourth Amendment occurs “where, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Id. at 950 n. 3. The case involved the attachment of a GPS device to Antoine Jones’ Jeep during a drug distribution investigation. The GPS was placed with a valid warrant issued by a District Court in Washington DC to be placed on the Jeep in the District of Columbia within 10 days.

The device was attached 11 days later in Maryland and remained on the vehicle emitting information to police 24 hours a day, for 28 days. To attach this device outside of the warrant, the Court held, would no doubt have been “considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id at 949. This holding did not, as the media reported, require a search warrant to attach a GPS device, that question was not answered.

Both the concurring opinions by Justices Sotomayor and Alito raise several more questions that the majority’s reliance on trespass theory seems inadequate to answer. A decision on factory or owner installed vehicle track devices or GPS enabled smartphones are absent from the opinion of the Supreme Court. Id. at 956 (Sotomayor, J,. concurring).

In a companion case Chief Judge Kozinski of the Ninth Circuit dissenting from the denial of reheraring en banc proclaims “1984 may have come a bit later than predicted, but it's here at last.” United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010). In an almost fatalistic dissent Chief Judge Kozinski lays out the argument that seemed to have great sway over Justice Sotomayor.

The facts of Pineda-Moreno are very similar to Jones and yet the Ninth Circuit came to the conclusion that that entering onto Pineda-Moreno's property and attaching a tracking device to his car required no warrant, probable cause, founded suspicion or by-your-leave from the homeowner, the panel holds that downloading the data from the GPS device, which gave police the precise locus of all of Pineda-Moreno's movements, also was not a search, and so police can do it to anybody, anytime they feel like it.” Pineda-Moreno, 617 F.3d at 112. Kozinski continues that:

“if you have a cell phone in your pocket, then the government can watch you. At the governement’s request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider-Sprint-over eight million times. The volume requests grew so large that the 110-member electronic surveillance team couldn’t keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users’ location data. ” Id at 1125 (internal quotations omitted).

The Government has this power but it still must establish and the 5th circuit and the Western District of Texas have their individual case law regarding it.

1. Standing related to Jones

Standing Rules Still Apply for both placement of GPS and its use in the 5th Circuit. In United States v. Hernandez, 647 F. 3d 216 (5th Cir. 2011) the defendant filed a motion to suppress the use of GPS information obtained when he drove his brother’s car to California to retrieve 20 pounds of methamphetamine. The GPS was placed without a warrant, however was not a 24 hour device but was more akin to a beeper because it emmited a “ping” at intervals of 15 minutes to two hours. See United States v. Knotts, 460 U.S. 267 (1983).

Hernandez argued that both placement and use of the GPS device “independently violated his Fourth Amendment rights.” Hernandez, 647 F.3d at 219. The Fifth Circuit focused on the “reasonable expectation of privacy” as set forth in Rakas v. Illiniois, 439 U.S. 128, 143 (1978) and holds that “Hernandez lacks standing to challenge the placement of the GPS device on his brother’s truck.” Hernandez, 647 F.3d, at 219.

However the Court found that since Hernandez had permission to drive his brothers truck he did have a reasonable expectation of privacy and thus the use by the government of the data that tracked Hernandez to California could be challenged. The Court then immediately shuts the door by declaring that the use of the GPS device was not an unconstitutional warrantless search under the Fourth Amendment. See Id. at 220.

Conceding that “Hernandez may be correct that some GPS systems offer significantly enhanced monitoring options” the court holds that this “GPS” was more of a Knotts beeper and used simply to enhance not track. Id. at 221. Jones therefore has no effect on this decision which had no trespass element.

Also consider United States v. Hanna, 2012 WL 279435 (January 30, 2012) from the Southern District of Florida. The officers attached a GPS to the vehicle then activated it later only to obtain the location of the vehicle at that moment so they could get visual contact with the suspects, and it was established that both at the time of installation and activation of the device no person occupied the vehicle. Hanna, 2012 WL 279435 at 1-2.

This District Court concludes, similar to Hernandez that the defendant’s did not have standing to challenge the trespass upon the property of the co-defendant’s vehicle because they had no property right to that vehicle. Id at 3. The Court then addressed the activation of the GPS:

“In Jones, five members of the Court concluded that Justice Scalia's trespass theory did not form a sufficiently comprehensive analysis of the Fourth Amendment implications of GPS monitoring and argued that GPS monitoring should also (in the case of Justice Sotomayor) or only (in the case of Justice Alito) be analyzed to determine whether it has invaded a reasonable expectation of privacy.” United States v. Hanna, 11-20678-CR, 2012 WL 279435 (S.D. Fla. Jan. 30, 2012)

The District Court then concluded that the defendant’s did not have a reasonable expectation of privacy in the vehicle at the time of the activation, and by the time they did occupy the vehicle an actual officer has shown up and had the vehicle under traditional visual surveillance. Id at 4. Thus a limited use of the GPS although it accomplishes something that no officer could conceivably do in person does not fall under the Fourth Amendment in the Southern District of Florida if no one occupies the vehicle at the time of the GPS activation. Jones could and has lead us in all sorts of directions as the ink on it dries. See Montana State Fund v. Randall Simms, No. DA 11-0342 (Montana Supreme Court, 2012) (Nelson, J,. concurring) (Relying on Jones to suggest that public camera surveillance by a state agency can violate the Fourth Amendment and require a warrant).


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B. Third Party Records

The Board of Directors for the National Association of Criminal Defense Lawyers in February of 2012 adopted a document on "Electronic Serveillance & Government Access to Third Party Records." The document discusses the growing debate over the preliminary showing of proof for obtaining third party information.

Court precedent has been clear that a person does not have a reasonable expectation of privacy to thing that they expose to the public. See United States v. Miller, 425 U.S. 435 (1976) and its progeny. In this digital age that exposure has grown to almost an all encompassing summary of your life.

As justice Sotomayor noted in U.S. v. Jones “people disclose the phone numbers that they dial or text to their cellular providers; the URL’s that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.” Jones, 132 S.Ct. at 957.

Sotomayor continues by stating that “I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.” Id.

As the NACDL document reintereates the decision in Jones has cast doubt on the viability of the “third party doctrine.” Further Sotomayor did not list facebook entries, SMS text messages (even if deleted), device locator records, keystrokes of a computer, and documents loaded on a cloud but only shared with specific people. All of these reveal intimate personal details of persons lives and yet in many instances they are subject to seizure by a simple subpoena.

The Electronic Communications Privacy Act (ECP), the Stored Communications Act (SCA), the USA Patriot Act, Wiretap Act, and the Foreign Intelligence Surveillance Act (FISA) all govern the standards which control the collection and use of third party data. These provisions create distinctions between content, non-content information, electronic communication service (ECS), remote computing service (RCS).

Many of these statutes were created well before the modern proliferation of smart phones and mobile computing technologies leading the NACDL to advocate for a modern rewriting of the laws governing this all important Fourth Amendment doctrine because of the obsolete status of current statutes.

The Board of Directors for the NACDL has thus adopted “Policy Recommendations to Protect the Privacy of Electronic Communications:”

  1. The content of any electronic communication that is sought by a law enforcement official should only be obtained through a warrant based on probable cause, adhering to the requirements for specificity and particularity in the application for the warrant, the particularity clause of the warrant, as well as the execution of the warrant.
  2. The definition of “content” information should be amended to cover any information that will demonstrate the substance of an electronic communication, to include private emails, instant messages, text messages, word processing documents and spreadsheets, photos, internet search queries and private posts made over social networks. This would include any information found in any third party records, including information stored within a cloud system, and transactional information that can reveal the content of an electronic communication, including a search query string, a URL, browser history and email subject lines.
  3. Congress should amend the Electronic Communications Privacy Act (ECPA) and eliminate the RCS and ECS distinctions, and the 180 day “rule.”
  4. Law enforcement must be required to obtain a warrant based on probable cause to obtain prospective or retrospective geolocation information-whether by way of a third-party service provicer, or by direct use of a GPS device to track a suspect’s movements.
  5. Opened email, even though found on a third-party service provider’s service, should only be obtainable by way of a warrant based on probable cause.
  6. Congress should statutorily extend the exclusionary rule to apply to searches that do not comply with these warrant requirements.

These recommendations will help to conform statutes and jurisprudence to the needs of modern technology so that the third party doctrine is consistent with a persons reasonable expectation of privacy.


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1. Google Privacy Policies

New privacy policies for Google became effective March 1, 2012. The new polices expand what internet services within the google corporation can have access to your “personal information.” Some specific highlights of these policies are listed below.

  1. Google may collect device-specific information (such as your hardware model, operating system version, unique device indentifiers, and mobile netwoek information including phone number). Google may associate your device identifiers or phone number with your google Account.
  2. When you use Google services or view content provided by Google, they may automatically collect and store certain information in server logs. Including your internet protocol (IP) address.
  3. When you use a location-enabled google service, google may collect and process information about your actual location, like GPS signals sent by a mobile device. Google may also use various technologies to determine location, such as sensor data from your device that may, for example, provide information on nearby Wi-Fi access points and cell towers.
  4. Google may store information (including personal information) locally on your device using mechanisms such as browser web storage (including HTML 5) and application data caches.
  5. After deleting information from Google services, “we may not immediately delete residual copies from our active servers and may not remove information from our backup systems.”
  6. Google will share personal information with companies, organizations or individuals outside of Google if they have a “good-faith” belief that access, use, preservation or disclosure of the information is reasonably necessary to: meet any applicable law, regulation, legal process or enforceable governmental request.

These new polices very significantly from the previous policies which required consent from the user for sharing of sensitive personal information. The old system was one where you had to “opt-in for sharing of sensitive personal information. However they still honored enforceable governmental request to turn over data that Google holds.


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2. Denial of Warrant for cell-site location information

In the Matter of APPLICATION OF theUNITED STATES of America FOR AND ORDER; (1) AUTHORIZING the USE OF A PEN REGISTER AND TRAP AND TRACE DEVICE; (2) AUTHORIZING RELEASE OF SUBSCRIBER AND OTHER INFORMATION; and (3) AUTHORIZING the DISCLOSURE OF LOCATION-BASED SERVICES, 727 F.Supp.2d 571 (W.D. Texas, 2010).

The DEA applied for a warrant for the installation and use of a pen register and trap and trace device, disclosure of stored wire and electronic transactional records, and disclosure of location based data. The Court here examined the cell-site location information request made by the Government.

This court goes through a historical background of electronic surveillance listing four types.

  1. Pen registers and trap and trace devices: require a law enforcement officer to certify that the information likely to be obtained by the pen register or trap and trace device “is relevant to an ongoing criminal investigation.” 18 U.S.C. §3122(b)(2).
  2. Stored communications and subscriber or customer account records require (generally speaking) “specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (the “Stored Communications Act,” or “SCA”).
  3. Search and seizure warrants are covered by FED.R.CRIM.P. 41 and its “probable cause” standard.
  4. Wiretap orders have the highest legal standard, as they are governed by a detailed set of procedures laid out in 18 U.S.C. § 2510, et. seq. Wiretaps are often referred to as “super-warrants” because of the additional requirements beyond probable cause necessary for their issuance.

The Court further explains that this application involves CSLI or cellular site location information which is “information that resides on computer servers of telecommunications providers which allows law enforcement agencies to locate a cell phone, and its user, in both real time and, by accessing historical data in the past.”

The Austin Division of the Western District apparently has an informal agreement among magistrates that CSLI data requires a showing of probable cause. After a very in-depth and good discussion of leading precedent on the subject the court requires a showing of probable cause.

This affidavit falls short of that standard and the agent even states directly that the warrant would “help yield relevant evidence in this case” which is much less than probable cause. The Court holds that “accordingly, on the present affidavit, with the facts now presented, the request for an order or warrant for CSLI will be Denied without prejudice to being resubmitted with additional evidence sufficient to mee the standard discussed herein.” Id. at 585.


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V. Conclusion

The Fourth Amendment is an intricate tapestry that will no doubt continue to change as technology progresses. With searches of computers, cell phones, the continuing uncertainty of reasonable suspicion, and the always present threat of police overreach it takes vigilance and virtue to stand at the intersection of liberty and justice. With continued efforts as we enter the next decade of the Twenty-First Century the Fourth Amendment will fulfill the framers intent to ensure the rights of the people to be secure from unreasonable searches and seizures.


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