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What is wrong in the footnote?

Duncan v. State
Before Morriss, C.J., Ross and Carter, JJ.

OPINION

Daphne Folmer, Joe Gail Duncan's girlfriend, was in jail. While there, Folmer told authorities that Duncan kept in his pickup truck pornographic photographs of her minor daughter, that Folmer had sold these photographs to Duncan, and that he also kept in the truck similar photographs of other minor females. On the basis of Folmer's report, officers sought and were issued a warrant to search Duncan's truck. That search turned up child pornography, which was ultimately used as evidence in Duncan's trial for sexual performance by a child. Duncan gave a statement to officers, which was also used as evidence at trial. Duncan pled guilty, and the jury assessed his punishment at fifteen years' imprisonment. On appeal, Duncan challenges the admissibility of his statement and of the evidence found in his truck. We affirm the judgment of the trial court because we hold the trial court was within its discretion in (1) denying the motion to suppress the evidence recovered from Duncan's truck and (2) admitting Duncan's statement.

(1) The Trial Court Was Within Its Discretion in Denying the Motion To Suppress the Evidence Recovered from Duncan's Truck

Duncan challenges the search warrant with a three-pronged attack, asserting that the affidavit used to obtain the warrant did not describe the location of the vehicle to be searched, did not recite when Folmer sold the pictures to Duncan, and did not indicate when Folmer last saw the pictures in Duncan's truck. We hold the warrant was properly issued because the warrant affidavit sufficiently (a) described Duncan's truck and (b) stated facts providing probable cause to believe contraband was in the truck.

In determining whether an affidavit provides probable cause for issuance of a search warrant, we are limited to the four corners of the affidavit; but "we do not place blinders on the process whereby a neutral and detached magistrate must decide whether there are sufficient facts stated to validate the issuance of a proper warrant." Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991). The affidavit itself should be interpreted in a common-sense and realistic manner, and the reviewing magistrate may draw reasonable inferences from the statements made in the affidavit. Id. We should pay great deference to a magistrate's determination of probable cause and should not invalidate warrants through hypertechnical interpretation of the supporting affidavits. Illinois v. Gates, 462 U.S. 213, 236 (1983) (citing Spinelli v. United States, 393 U.S. 410, 419 (1969); United States v. Vantresca, 380 U.S. 102, 109 (1965)).

In Gates, the United States Supreme Court reaffirmed the traditional standard for reviewing an issuing magistrate's probable cause determination. The Court indicated that a warrant would be valid so long as the magistrate had a substantial basis for issuing the warrant, concluding that, under the totality of the circumstances, a search would uncover evidence of wrongdoing. Gates, 462 U.S.at 236--38 (citing Jones v. United States, 362 U.S. 257, 271 (1960)). The totality of the circumstances includes the credibility and reliability of the informant and the informant's information, as well as the basis for the informant's knowledge. See Gates, 462 U.S. at 230--31; Osban v. State, 726 S.W.2d 107 (Tex. Crim. App. 1986), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991). We affirm the trial court's ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.---Texarkana 1998, no pet.).

(a) The Affidavit Sufficiently Described Duncan's Truck

Duncan claims the affidavit inadequately describes the place to be searched because it does not indicate where Duncan's truck was to be found. We disagree and find the truck adequately described.

The affidavit describes the truck in this way:

1. There is in Rusk, [sic] County, Texas, a suspected place and premises described and located as follows[:]

A 1999 blue GMC pickup truck bearing Texas license plates 3FSW21, registered to Joe Gail Duncan, white/male, 4508 CR 407 S., Henderson. Said 1999 pickup truck contains at least one briefcase and Walmart shopping bag.

[Named informant,] Daphne Folmer described Joe Gail Duncan's pickup as a blue GMC. Affiant is further aware that officers were able to locate the blue GMC pickup truck and confirm the above listed registration and that it is registered to the said Joe Gail Duncan.

The reason a warrant must "particularly describe the place to be searched" is to avoid general warrants. Long v. State, 132 S.W.3d 443, 447 n.12 (Tex. Crim. App. 2004); Rodgers v. State, 162 S.W.3d 698, 709 (Tex. App.---Texarkana 2005, pet. granted).

Of course, "[a] search made under authority of a search warrant may extend to the entire area covered by the warrant's description." And, when courts examine the description of the place to be searched to determine the warrant's scope, they follow a common sense and practical approach, not a "Procrustean" or overly technical one.

Long, 132 S.W.3d at 448 (citations omitted); Rodgers, 162 S.W.3d at 709. The description in the warrant or attached affidavit must be detailed enough so the executing officer can locate the place to be searched and distinguish it from other property, so property of innocent third parties will not be searched. Bridges v. State, 574 S.W.2d 560, 562 (Tex. Crim. App. [Panel Op.] 1978); Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978); State v. Manry, 56 S.W.3d 806, 809 (Tex. App.---Texarkana 2001, no pet.).

The truck itself is well described---even down to the license plate number---so, under the facts of this case, there was no need for the truck's location to be set out specifically in the warrant or affidavit. Such an added requirement would serve no purpose, and the inherent mobility of a vehicle would make satisfying such a requirement quite difficult. Even so, we note that the affidavit in this case does provide considerable information about the truck's location: that the truck was in Rusk County; that the truck's owner, Duncan, resided at a specified Henderson, Texas, address; and that officers actually located the truck and verified Duncan as the registered owner of it. The affidavit sufficiently describes the pickup truck to be searched.

(b) The Affidavit Sufficiently Stated Facts Providing Probable Cause To Believe Contraband Was in the Truck

Duncan contends the affidavit provides no substantial basis on which the issuing magistrate could have determined probable cause because it fails to state when Folmer sold the photographs to Duncan and when she last saw the photographs in Duncan's truck. We disagree, since those omissions do not undermine probable cause in this case.

In this regard, the affidavit states,

[Duncan], on or about the 2nd day of July, 2003, in Rusk County, Texas did then and there intentionally and knowingly possesses [sic] and conceal [child pornography].

Affiant has probable cause for said belief by reason of the following facts[:] Affiant is an investigator for the Rusk County Sheriff's Department, Henderson, Texas. Affiant is a certified peace officer under the laws of the State of Texas and has been a certified peace officer for the past 3 years.

Affiant has received information within the past 24 hours from Daphne Folmer, white/female, that the said Daphne Folmer had sold Joe Gail Duncan nude photographs for [sic] her 13 year old daughter, [F.S.] and that Joe Gail Duncan keeps the photographs in a briefcase and Wal-Mart bag inside his pickup truck which is described above.

Affiant believes Daphne Folmer to be a truthful person because Affiant has interviewed Daphne Folmer concerning a pending criminal case and she has not only admitted her involvement to Affiant, she personally showed Affiant and other officers the location of similar photographs in her house. Daphne Folmer told Affiant that she and the said Joe Gail Duncan had a sexual relationship and she sold him the pictures of her daughter to supplement her drug habit.

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. Duncan claims the affidavit's silence, as to when the informant sold the photographs to Duncan or when she last saw them in his truck, denies the affidavit the necessary facts to establish probable cause. We conclude, however, that the finding of probable cause is supported by the statements in the affidavit that Folmer sold the items to Duncan and that Duncan's practice is to keep them in his truck as stated, given the recitation of contextual facts indicating that the information is reliable.

Where facts and circumstances within the knowledge of a police officer, arising from a reasonably trustworthy source, would warrant a man of reasonable caution in the belief that items of contraband or evidence of a crime may presently be found in a specified place, there is probable cause to issue a warrant to search that place.

Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986).

Magistrates, in determining whether an affidavit supports a finding of probable cause, may make reasonable inferences from the statements made in the affidavit, and warrants should not thereafter be invalidated through an appellate court's hypertechnical analysis. Gates, 462 U.S. at 236; Gibbs, 819 S.W.2d at 830.

In this case, Folmer personally sold the photographs to Duncan and observed his practice of keeping them in his truck. Affording great deference to the issuing magistrate's determination, we hold the affidavit was sufficient to establish probable cause. We conclude the information contained within the four corners of the affidavit, under the totality of the circumstances, provides a substantial basis on which the issuing magistrate could have found probable cause.

The trial court was thus within its discretion in overruling Duncan's motion to suppress the evidence found in his truck.*fn1

(2) The Trial Court Was Within Its Discretion in Admitting Duncan's Statement

Duncan asserts his statement was involuntarily made because he was intoxicated at the time. Though, at the pretrial hearing on his motion to suppress the statement, Duncan testified he had consumed many beers in the hours leading up to his statement, and thus does not remember significant portions of the statement process, officers testified Duncan did not appear to be intoxicated at the time. We defer to findings of fact made by the trial court when there is conflicting evidence.

An appellate court reviews a trial court's ruling on a motion to suppress for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Maysonet v. State, 91 S.W.3d 365, 369 (Tex. App.---Texarkana 2002, pet. ref'd). A trial court abuses its discretion when it acts unreasonably or arbitrarily, if it acts outside the zone of reasonable disagreement, or if its decision is made without reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). As the finder of historical fact, the trial court is free to believe or disbelieve the testimony or evidence from any witness, even if that witness' testimony or a piece of evidence is otherwise not controverted by the opposing side. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). As the evidence conflicted on whether Duncan was intoxicated when he gave his statement, the trial court was within its discretion in admitting the statement.

We affirm the judgment of the trial court.

Date Submitted: November 29, 2005

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Opinion Footnotes

*fn1 The State seeks to support the search on the basis of the automobile exception to the prohibition of a warrantless search. The "automobile exception" authorizes an officer to conduct a warrantless search of an automobile as long as the officer reasonably believes (1) there is probable cause to believe that a crime has been committed, (2) there is contraband located in the vehicle, and (3) "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Chambers v. Maroney, 399 U.S. 42, 48--49 (1970); Amos v. State, 819 S.W.2d 156, 160--61 (Tex. Crim. App. 1991). Here, a warrant was obtained, so the third requirement is not met.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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I thought the automobile exception was a separate, independent ground for allowing a search. Does this mean that if we have a warrant as well as consent that we don't consider consent as a possible justification for a search?
 
Posts: 1243 | Location: houston, texas, u.s.a. | Registered: October 19, 2001Reply With QuoteReport This Post
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i want to change my answer. it's the font size, right? that's what's wrong with the footnote.
 
Posts: 1243 | Location: houston, texas, u.s.a. | Registered: October 19, 2001Reply With QuoteReport This Post
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Good answer, David. Fonts are important.

But, I was more concerned that an appellate court would think that current Supreme Court law requires proof that an officer did not have time to get a warrant for a vehicle search. That is not the law. The existence of a vehicle in a public place is automatically sufficient justification for a warrantless search if there is probable cause to believe the car contains evidence of a crime. And, simply because an officer chooses to get a warrant does not mean that a problem with the warrant will make the search invalid. The officer should only be required to show probable cause, and he should not be punished for going the extra mile. Very bad footnote. PDR?
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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As Diane Beckham always points out: the Constitution does not require a warrant; Judges tend to.
 
Posts: 723 | Location: Fort Worth, TX, USA | Registered: July 30, 2002Reply With QuoteReport This Post
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I also thought that it was immaterial whether there was "time" to get a search warrant for a motor vehicle. The mobilityof the vehicle itself was the crux of this S.C. ruling, I believed.

So, where are we now? We file such cases all the time - traffic stop, smell pot/see dope, search car, charge any contraband - end of story.
 
Posts: 124 | Location: West Texas | Registered: June 25, 2003Reply With QuoteReport This Post
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The beauty of the vehicle exception was the bright line rule. If it is a car, you don't need a warrant (unless the car is on private property upon which you have no right to be). That's what is so desperately wrong about this opinion.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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The United States Supreme Court has long approved warrantless searches of automobiles without requiring a showing of exigent circumstances. Furthermore, on occasion, the Supreme Court has reversed the Texas Court of Criminal Appeals for requiring �exigent circumstances� to support such a search.

In Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280 (1925), a prohibition era case, law enforcement officers stopped suspected bootleggers on their way to Grand Rapids, Michigan and conducted a warrantless search of their automobile. In addressing the propriety of warrantless automobile searches, the Supreme Court held that automobiles could properly be searched without a warrant. However, the Court noted that such searches could not be predicated on the mere chance of discovering contraband. To allow such searches would �subject all persons lawfully using the highways to the inconvenience and indignity of such a search.� Id. at 153. The Court then adopted the standard of probable cause and held that an automobile could be searched without a warrant if officers had probable cause to believe that it contained contraband. Id. at 156-157. The Supreme Court�s opinion indicated that probable cause simply consisted of facts and circumstances within the officers� knowledge and of which they had reasonable trustworthy information that were sufficient in themselves to warrant a man of reasonable caution in the belief that contraband was being transported in the vehicle stopped and searched. Finding that the officers had probable cause, the Court upheld the warrantless search of the bootleggers� car. Id. at 161.

Almost fifty years later, the Supreme Court again addressed the propriety of a warrantless automobile search in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975 (1970). In Chambers, two armed men robbed a Gulf station at gunpoint. One of the robbers was wearing a green sweater, the other had on a trench coat. Two teenagers had noticed a blue station wagon circling the area of the station and then saw the same station wagon speed away from a parking lot near the Gulf station. There were four men in the station wagon. One was wearing a green sweater. After learning of the robbery, the teenagers notified the police. Within an hour, police officers stopped a station wagon matching the description and carrying four men. It was within two miles of the Gulf Station and one of the men was wearing a green sweater. There was also a trench coat in the car. The occupants of the car were arrested and the car was driven to the police station. At the police station, officers thoroughly searched the car, without a warrant, and located two .38-caliber handguns hidden in a secret compartment in the dashboard. Id at 44.
The Supreme Court was called upon to address the propriety of the search. The defendant argued that the police should have simply seized the car and held it until a magistrate�s warrant could be obtained. He argued that only the �lesser intrusion� of seizure should be allowed until a magistrate�s warrant could be obtained authorizing the �greater intrusion� of a search. The Supreme Court answered this argument by stating, �For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.� �Given probable cause to search, either course is reasonable under the Fourth Amendment.� The Court noted that the station wagon could have been searched on the spot where it was stopped because there was probable cause to search it and it was a fleeting target for a search. The Court reasoned that there was still probable cause for the search at the police station and that the car was still mobile unless the Fourth Amendment allowed the warrantless seizure of the car and denial of its use to anyone until a warrant was secured. The Supreme Court also reasoned that there was little to choose in terms of practical consequences between immediately searching the car without a warrant and immobilizing the car until a warrant was obtained. The Court then upheld the warrantless search of the automobile. Id. at 51-52.

In White v. State, 521 S.W.2d 255 (Tex.Crim.App. 1974), police officers received a call from a bank reporting that a man, matching the defendant�s description, had attempted to pass four checks drawn on a non-existent account. Within minutes, the officers were called to a second bank where the defendant was attempting to pass fraudulent checks. The officers obtained the checks from the drive-up teller and directed the defendant to park his car by the curb. While parking the car, the defendant was observed trying to stuff something between the seats. The defendant was arrested and taken to the station house. Another police officer drove his car to station house. The defendant was questioned for 30 to 45 minutes. The officers also requested the defendant�s consent to search the car. He refused to consent to the search. The officers searched the car without defendant�s consent or a search warrant and located the four checks that the defendant had attempted to pass at the first bank. Id. at 256.

At trial, the court admitted the checks into evidence because the officers had probable cause to search the car. Subsequently, ignoring the Supreme Court�s decision in Chambers, the Court of Criminal Appeals held that the search of the defendant�s car violated the Fourth Amendment and reversed the defendant�s conviction. The Court of Criminal Appeals stated, �In the absence of the �exigent circumstances� which are necessary to justify a warrantless search, we find no justification for a search without a warrant. The four checks seized in the search were unlawfully obtained, and should not have been admitted.� Id. at 258. However, in Texas v. White, 423 U.S. 67, 96 S. Ct. 304 (1975), the United States Supreme Court reversed the Court of Criminal Appeals and held that the search of the car was valid.

In Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079 (1982), the United States Supreme Court addressed a situation where police officers conducted a warrantless search of an automobile that had already been impounded and was about to be towed. Id. at 260. The Court cited its prior decision in Chambers v. Maroney, for the proposition that �when police officers have probable cause to believe there is contraband in an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody.� The Supreme Court then stated, �It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court�s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.� The Court then upheld the warrantless search of the automobile. Id. at 261.

Texas courts have also addressed the propriety of warrantless automobile searches for many years. In Martin v. State, 780 S.W.2d 497 (Tex.App.-Corpus Christi 1989), the Court of Appeals reviewed a warrantless automobile search. In Martin, a reliable informant informed a Houston police officer that the defendant was on his way to a store in the 2400 block of Dowling Street to deliver cocaine. The informant told the officer that the cocaine would be under the hood of the defendant�s black truck and he described the defendant�s clothing. Officers went to the 2400 block of Dowling Street and saw the defendant arrive in a black pickup. He was wearing the clothing the informant had described. The officers watched as he met with a third party and make an exchange. The officers then approached the defendant and arrested him. The officers located $3,652 in cash and 17 baggies of cocaine on his person. The defendant was handcuffed and put into the back of a patrol car. Then, without a warrant, the officers took the keys to the defendant�s locked truck, which was parked approximately 30 feet from where the exchange had occurred, and searched it. Under the hood, they found a bag with the defendant�s name on it. It contained nearly eight ounces of cocaine. There were nine officers on the scene by the time the truck was searched. Id. at 498-499.

On appeal the Defendant did not argue that the police lacked probable cause to search his truck. Instead, he asserted that there were no exigent circumstances to justify the search. Id. at 499. The Corpus Christi Court of Appeals noted that the vehicle was capable of being used upon the highway and had indeed been used on the highway just minutes before the defendant�s arrest. Citing the Supreme Court�s opinion in Michigan v. Thomas, the Court stated that it was irrelevant that guards could have been posted on the truck to prevent its movement. Thus, the only remaining issue was whether the police had probable cause to search the truck. Finding that there was probable cause to believe that the truck contained contraband, the Court of Appeals upheld the warrantless search. Id. at 500.

Similarly, the Houston Court of Appeals addressed the issue of a warrantless automobile search in Cornejo v. State, 917 S.W.2d 480 (Tex.App.-Houston [14th Dist.] 1996), a case involving a drive-by shooting. In Cornejo, Houston police officers responded to the scene of the shooting. As they were investigating, several eyewitnesses pointed out a car driving by and informed the officers that one of the men in the car had done the shooting. The witnesses also stated that one of the men in the car was making a hand gesture associated with a particular gang. The officers followed the vehicle to Cornejo�s apartment complex and ordered him and his passenger out of the car. Before the men got out of the car, one officer observed Cornejo reach for his glove compartment, appearing to lock or unlock it. The suspects were frisked and secured in the back of the police car. The officers then searched the car without a warrant and found a 9mm semi-automatic weapon in the glove compartment. Id. at 482.

On appeal, Cornejo argued his car had been illegally searched. The Houston Court of Appeals held that the officers had probable cause to believe Cornejo and his passenger had committed a drive-by shooting. The Court also noted that the officers had probable cause to believe that a felony involving a firearm had been committed from the vehicle. Furthermore, upon stopping the vehicle shortly after the shooting, the officers observed Cornejo either lock or unlock his glove compartment. Accordingly, the Court held that the officers had probable cause to search the Cornejo�s vehicle and upheld the warrantless search. Id. at 484.

Unfortunately, decisions from the Texas Court of Criminal Appeals have been far from consistent. On occasion, the Texas Court of Criminal Appeals approved warrantless searches of automobiles based solely upon a showing of probable cause without any exigent circumstances. See Sanchez v. State, 582 S.W.2d 813, 815 (Tex.Crim.App. 1979). At other times, the Court of Criminal Appeals seemingly ignored precedent from the United States Supreme Court and required exigent circumstances as well as probable cause in order to have a valid warrantless search under the �automobile exception.� See Gauldin v. State, 683 S.W.2d 411, 414 (Tex.Crim.App. 1984).

However, in Guzman v. State, 959 S.W.2d 631 (Tex.Crim.App. 1998), the Court of Criminal Appeals expressly overruled Gauldin and brought its decisions into line with those of the United States Supreme Court. The Court noted that the Supreme Court�s holding in Michigan v. Thomas that �the justification to conduct a warrantless search does not vanish once the car has been immobilized.� The Court of Criminal Appeals then expressly stated, �Accordingly we hold, as Supreme Court precedent dictates, that the automobile exception to the Fourth Amendment of the United States Constitution does not require the existence of exigent circumstances in addition to probable cause.� Id. at 634.

Since the Court of Criminal Appeals decision in Guzman, the Dallas Court of Appeals has also addressed the issue of a warrantless automobile search. See Hollis v. State, 971 S.W.2d 653 (Tex.App.-Dallas 1998, pet. ref�d). In Hollis, the defendant�s car was parked in the driveway of an apartment complex. Believing the vehicle was stolen, Officer Hammel pulled into the parking lot to investigate. He then saw the defendant, Hollis, at the corner of an apartment. When Hollis noticed Officer Hammel, he went around to the other side of the apartment complex. Officer Hammel called another officer for assistance. After the other officer shined a light on Hollis, he returned to Officer Hammel�s location. When questioned by Officer Hammel, Hollis stated that he went around to the other side of the complex to urinate out of the officer�s view. Officer Hammel noticed that the defendant had been drinking and was nervous. The defendant acknowledged that he owned the vehicle. Officer Hammel then looked into the car and observed two bottles of beer. Hollis acknowledged that the beer was his and Officer Hammel asked him for identification. Hollis�s ID indicated that he was eighteen years old and Officer Hammel placed him under arrest for being a minor in possession of alcohol. Hammel went to the car to retrieve the beer and noticed a Crown Royal bag. He picked up the bag to see if it contained a bottle of liquor. As he handled the bag, he realized that it felt like there were plastic packets inside. Based on his training and experience, Officer Hammel knew that contraband was often carried in Crown Royal bags. He opened the bag and located several packets of cocaine inside. At trial, Hollis filed a motion to suppress the cocaine, claiming that his car had been illegally searched without a warrant. The trial court denied the motion. Id. at 654.

On appeal, Hollis argued that the trial court had erred in failing to grant his motion to suppress. In addressing this argument, the Dallas Court of Appeals wrote:

Under both the United States and Texas Constitutions, a police officer may conduct a warrantless search of an automobile if he has probable cause to believe a crime has been committed and there is contraband located somewhere inside the vehicle. See Carroll v. United States, 267 U.S. 132, 158-59, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Powell, 898 S.W.2d at 827-28; Morgan v. State, 906 S.W.2d 620, 629 (Tex. App.--Fort Worth 1995, pet. ref'd). The automobile exception does not require the existence of exigent circumstances in addition to probable cause. See Michigan v. Thomas, 458 U.S. 259, 261-62, 73 L. Ed. 2d 750, 102 S. Ct. 3079 (1982); State v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App. 1998). The justifications for this exception are that vehicles are readily mobile and the expectation of privacy with respect to an automobile is relatively low. Aitch v. State, 879 S.W.2d 167, 173 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). In determining probable cause, courts must consider the totality of the circumstances. Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). Probable cause exists when the facts and circumstances within the officer's knowledge and about which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). The sum of the information known to cooperating officers at the time of a search is to be considered in determining whether there was sufficient probable cause. Turcio v. State, 791 S.W.2d 188, 191 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd).

The Court then found that Officer Hammel had probable cause to believe that a crime had been committed and that the car contained contraband. Based upon that finding, the Court affirmed Hollis�s conviction.

It seems that whoever wrote that footnote didn't properly understand the "automobile exception" to the warrant requirement. I hope the cases above help. I had to research all of this once because we searched the car of a gangbanger who had just committed a drive-by-shooting (without a warrant).
 
Posts: 3 | Location: Lamesa, Texas, USA | Registered: January 23, 2006Reply With QuoteReport This Post
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Nice work, Sammy, and an excellent first post. Makes you wonder how much work the judge did before writing that footnote, eh?
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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yeah, and he got the font size wrong.

very thorough, sammy. i'll have to cut and paste for my next brief dealing with the automobile exception.
 
Posts: 1243 | Location: houston, texas, u.s.a. | Registered: October 19, 2001Reply With QuoteReport This Post
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Nice survey of the law, Sammy. I too will cut and paste and save this for the next case I have on an automobile search.

Notwithstanding the font size.
 
Posts: 2577 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
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