Last month six defendants litigated a group suppression hearing which raised the issue of a warrantless search of a constitutionally protected space. The warrantless search resulted in the police observing contraband in plain view. A search warrant was subsequently secured alleging that plain view contraband created probable cause to search the space. Below is a summary of our collective research. It may give defense lawyers a place to begin when challenging their own warrantless entry/search cases. Further, I cannot take full credit for this research. In large part it was a group effort. Each defense attorney involved helped piece together this labyrinth of legal doctrine. As a result, we created a bullet-point list of legal authority the police may rely upon when entering constitutionally protected space without a warrant.
Before one can challenge a warrantless search, they must establish standing. A defendant with the burden of demonstrating a legitimate expectation of privacy can do so by establishing they had a subjective expectation of privacy in the place invaded that society was prepared to recognize as reasonable. Several factors are relevant when determining whether a given claim of privacy is objectionably reasonable: (1) whether the defendant had a property or possessory interest in the place invaded; (2) whether the defendant was legitimately in the place invaded; (3) whether the defendant had complete dominion or control and had the right to exclude others; (4) whether, prior to the intrusion, the defendant took normal precautions customary taken by those seeking privacy; (5) whether the defendant put the place to some private use; and (6) whether their claim of privacy is consistent with historical notions of privacy. These factors are not exhaustive and none is dispositive of a particular assertion of privacy. Rather, the circumstances surrounding the search are examined in their totality. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). Once meeting the burden of proof on standing, one can now challenge the circumstances under which the police entered a protected place without a warrant.
Consent was not an issue in our suppression hearing but is routinely the starting point in any research. Searches that occur following voluntary consent are an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010). Under Texas law, a consent search must be established by clear and convincing evidence. Id. This burden requires the prosecution to show the consent was positive, unequivocal, and without duress or coercion. Juarez v. State, 758 S.W.2d 772 (Tex. Crim. App. 1988). A 3rd party can also consent to a search, against the privacy interest of another, if the 3rd party had actual authority over the place to be searched. The 3rd party may give valid consent when they, and the non-consenting person, share common authority over the premises or property. Common authority is shown by the mutual use of the property by people having joint access or control for most purposes. In this situation, the non-consenting person assumes the risk that someone with common authority might permit the common place to be searched. See Hubert v. State, 312 S.W.3d 554, 560-61 (Tex. Crim. App. 2010); also Welch v. State, 93 S.W.3d 50, 52-53 (Tex. Crim. App. 2002). If the 3rd person consenting does not have actual authority the police may still rely upon the 3rd party’s “apparent” authority to consent. When an officer reasonably (though erroneously) believed a 3rd party had actual authority to consent to a search of a place or property, apparent authority existed making the search reasonable. See Hubert at 561.
A protective sweep is a quick and limited search of premises conducted to protect the safety of police officers or others. Maryland v. Buie, 494 U.S. 325 (1990); Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000). It is generally conducted incident to an arrest, but the absence of an arrest does not preclude a protective sweep, even one within a person’s home. See United States v. Gould, 364 F.3d 578 (5th Cir. 2004). For a protective sweep to be valid, the police must not have entered or remained in the space illegally, and their presence in the space must be for a valid law enforcement purpose. Id. at 587. A legitimate protective sweep must be supported “‘by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to'” those on the scene, and may be no more than a “cursory inspection of those spaces where a person may be found.” Id.
The exigent circumstances doctrine authorizes entry into a constitutionally protected place, without a warrant, if the police have probable cause and the police have articulable facts leading to a reasonable belief that exigent circumstances exist making a warrant impracticable. (typically the belief that evidence is in immediate danger of destruction). See Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013); McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991); see also Kentucky v. King, 563 U.S. 452 (2011)(exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment). This doctrine applies when the police act in their “crime-fighting” role, rather than their “community care-taking” role. Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003).
The emergency aid doctrine authorizes entry into a constitutionally protected space, without a warrant, if the police have an “immediate reasonable belief that [they] must act to protect or preserve life or avoid serious injury.” Laney at 863. (also Mincey v. Arizona, 437 U.S. 385 (1978)). It requires that police officers be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 860. The emergency aid doctrine uses an objective standard, taking into account the facts known to the police at the time of the search. Id. at 862. The doctrine also requires the warrantless entry be circumscribed by the exigencies justifying the entry. In other words, “we do not intend our holding today to be interpreted to necessarily allow police officers to make warrantless entries and searches every time there is a need to protect or preserve life or prevent serious injury.” Id. at 863.
The Cady doctrine applies, like the emergency doctrine, when the police are not acting in their “crime-fighting” role, but rather in their limited community care-taking function to “protect or preserve life or avoid serious injury.” Laney at 863. (citing Mincey and Welsh v. Wisconsin, 466 U.S. 740, 750 (1984)). The Cady doctrine has most often been applied to warrantless searches of automobiles. Significantly, the doctrine does not necessarily require exigency, rather it requires the police be motivated by the need for general public assistance as opposed to “crime-fighting.” Id. (citing Cady v. Dombrowski, 413 U.S. 433 (1973)). It requires a reasonable belief that a concern for the general public exists who might be endangered if the warrantless search is not conducted. Cady at 447.
Although this doctrine was not an issue in our suppression hearing, it still deserves a place on our list of legal authority the police may rely upon when entering constitutionally protected space without a warrant. The inventory doctrine was first conceived in Cady, but later expanded upon in South Dakota v. Opperman, 428 U.S. 364 (1976). In Opperman, the Supreme Court held that automobile inventory searches conducted pursuant to standard police procedures are reasonable under the Fourth Amendment. See also, Robertson v. State, 541 S.W.2d 608 (Tex. Crim. App. 1976)(inventories following standard police procedures are reasonable).
So, the next time you face a warrantless search by police in a constitutionally protected space, consider these points when attacking the search and any seizure. You can even challenge the validity of a search warrant affidavit containing evidence derived from such a warrantless entry and search. And don’t forget standing and consent. Both can sneak-up on you if you’re not careful. Good luck.
(“Off the Back” featured in the “Voice For The Defense” November 2017)
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.