Has anyone read SB 1195 which passed both the Senate & House albeit in two different formats? This bill requires police to either receive consent in writing or on audio/video recording. They can no longer just ask for & receive verbal consent to search without in writing or a recording. In addition, the person being asked must be informed they have the right to refuse.

I think this is a really bad bill for law enforcement. This is going to have a detrimental effect on drug interdiction investigations in my opinion. Law enforcement testified overwhelming against this bill.

Is the next step a conference committee?
Can we get this bill killed in a conference committee or the governor to veto?

Most law enforcement do not even know about this bill. Narcotics officers are very concerned about this bill hampering their efforts on drug investigations.

Here again, you have to wonder how, in a Republican dominated legislature, stuff like this can get passed. Is the leadership not paying attention? Are they so focused on tax reform and school finance that defense oriented legislation like this gets overlooked? Or is there some sort of "guilty conscience" thing going on here where the majority party abandons its fundamental principles in order to be "fair" to or placate the minority? There was a time when the Republican Party stood firmly on the side of law enforcement. Bills like this should never make it out of committee.

As someone else pointed out on another thread, this is yet another example of legislation that effectively says that the police cannot be trusted to tell the truth. That is sad. On the other hand, if I were a drug smuggler or a criminal defense lawyer, I'd be ecstatic!

Not completely sure but I think it is or soon will be on the Governor's desk. A few contacts with his office might help on this one.

[This message was edited by Mike Little on 05-27-05 at .]

Isn't the presumption here that officers must be lying if they get consent?

A standard witness can testify to something said by the defendant. An officer has to have a recording to verify that the officer was not applying force or influence when the defendant gave consent. Couple this law with 38.22 and it really looks like the Leg. believes peace officers all lie and are not to be trusted as much as joe blow citizen.

You know, it has always been the history of us as a people that a few bad apples have to spoil it for the rest of us. Even in grade school, if one kid did something bad, they'd come up with some rule or punishment that affected all of us. The absolute truth is that both defendants and officers can and may lie. The protection is there for the officer as well. With the video, the defendant can't lie. I think it is a perception issue, spurred on by the many, many times permission to search on perfectly routine traffic stops has been requested and subsequently contested. I honestly believe any person, right or wrong, should be aware that have an absolute right to refuse the intrusion on their personal space (and part of my thinking is because they tried to get a search on my husband's vehicle, and he is the most honest, decent, not likely to commit any crime person I know) In all, I think the legislation is good for all. We, as defense attorneys, hear clients all the time say that no permission was granted, or requested. What do you do then? I think the legislation will make he said/she said consents hearings obsolete, and be a better arrangement for all of us that have to work on the cases. Not that you asked for my two cents!

[This message was edited by Beck Gibson on 05-27-05 at .]

Beck, I hear what you're saying but where does it end? Why not require a dozen witnesses or two court reporters to be present when statements are taken from suspects? We wouldn't have any more Jackson v. Denno hearings I'll bet. But would we be doing justice?

But what about the narc that does a knock and talk? Officer has a casual, non - custodial conversation with a bad guy, sets up a deal, then asks to see the lab as a part of pretending to be a buyer.

If that consent is not recorded either in writing or on video with sound, what happens under this new law?

Well, I haven't checked as to how this applies to a knock and talk. If your officer is posing as a buyer, you have an undercover investigation, then there are rules that apply to the testimony of just one officer in certain situations.
A knock and talk as I know it is where our narc squad (or wannabes) had little to go on, would show up at the door (dressed as officers) and say things like, "I hear you have been dealing" or some silly thing like that. They would establish a conversation, and ask to search. I have to tell you, it costs very little to obtain a body mike, probably less than you think. If my client told me the search was non-consentual, I would challenge it, and we are back to square on - could it have been recorded?

CYA has always been a good rule. Besides, I think that everyone can think of at least one officer that needs to tote around a pocket Constitution, and we wouldn't believe them if they told us the sun was shining.

without having read it yet, what would happen in the event that you don't have the consent recorded, but there is another (or several) co-defendants (from the same stop/search) that would be willing to give statements / testimony as to having heard the other def. give his consent?
Would this still be tossed since not on tape?

The bill is awaiting concurrence or a conference by the Senate. The Senate will most likely concur and send the bill to the governor, despite opposition by law enforcement groups.

If you have questions about the bill, please READ IT before calling or emailing us.

(b) A peace officer who stops a motor vehicle for any alleged violation of a law or ordinance regulating traffic may not request the operator of the motor vehicle for consent to search the vehicle, unless the peace officer has probable cause or another legal basis for the search.


So, my concern isn't addressed by this bill. But still, why should we have to treat officers like they lie more often than regular citizens?

No, no, no! That is NOT the bill. that is the FILED version of the bill; it doesn't look anything like that now!

To see the final version of the bill, you have got to get the last version from the Capitol web site, whcih you can access through the TDCAA site....even then I notice that cite doesn't have the House floor amendment, which i will reproduce below:

FLOOR AMENDMENT NO. 1

Amend C.S.S.B. No. 1195 (House Committee Report) in SECTION 1 of the bill, in proposed Subsection (b), Article 1.06, Code of Criminal Procedure (page 1, between lines 17 and 18), byinserting the following new Subdivision (2) and renumbering the subsequent subdivisions of that section accordingly:

(2) conducts a search for weapons based on a reasonable fear for the officer's safety or the safety of others;



Amend S.B. No. 1195 on third reading, as amended by FloorAmendment No. 1 by Dutton, in added Subdivision (2), Subsection(b), Article 1.06, Code of Criminal Procedure, between "based on" and "a reasonable fear", by inserting "an articulation of".

FLOOR AMENDMENT NO. 2

Amend S.B. No. 1195 on third reading as follows:
(1) In Section 2 of the bill in added Subdivision (1), Subsection (c), Section 411.0207, Government Code, strike "fully".

(2) In Section 2 of the bill in added Subdivision (2), Subsection (c), Section 411.0207, Government Code, strike "freely and".

The Senate concurred to the House changes to SB 1195. It's off to the governor now.

We know that under Terry an officer may conduct a limited search of an automobile for weapons when reasonable suspicion exists that weapons may be in the car. Years of case law and legal argument have sharpened and defined the issue. Now, we must litigate the meaning of "reasonable fear?" I have about had it with the mistrust of police. My gosh, the worst pedophile in the jailhouse may testify to oral statements of his cellmate but a peace officer? Let's have that in triplicate, please.

[This message was edited by BLeonard on 05-27-05 at .]

The last version of this bill I read was the House Committee version.

Shannon or Rob where again do we need to look for the bill which was concurred with by the Senate today? Which version is it on our legislative page? I look on the Senate's website.

Here is the house version.

http://www.capitol.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=79&SESS=R&CHAMBER=S&BILLTYPE=B&BILLSUFFIX=01195&VERSION=4&TYPE=B

It was accepted by the Senate today.
http://www.capitol.state.tx.us/cgi-bin/db2www/tlo/billhist/actions.d2w/report?LEG=79&SESS=R&CHAMBER=S&BILLTYPE=B&BILLSUFFIX=01195&SORT=Asc

You can see the House vote here

http://www.house.state.tx.us/media/chamber/79.htm
It's in the 5/24/05 floor session. Fast forward the 7:41 to 12:27 session to 3:59:10

Here is the final (enrolled) version of the bill sent to the Guv:

SB 1195

I beleive the Leg. has established a statutory excepion for the non-consentual, warrantless search of an automobile. The pertinent portion of the proposed law reads:

b) A peace officer who stops a motor vehicle for any alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the peace officer:

(1) has probable cause or another legal basis for the search;

(2) conducts a search for weapons based on an articulation of a reasonable fear for the officer's safety or the safety of others;

"Reasonable suspicion" exists today as another legal basis for the search," under (b)(1). Therefore, "reasonable fear" in (b)(2) must mean something new and different because we know the Leg. would never enact legislation and include meaningless language. I would argue that "reasonable fear" is at once a lesser and broader standard than reasonable suspicion.

I could be wrong, being too lazy to do the research today, but I think the "reasonable fear" language in SB1195 just codifies the Terry cases.

As I understand it, a reasonable suspicion that a vehicle contains a weapon during a traffic stop does not, in and of itself, furnish a valid basis to search the car. The officer must also have a reasonable suspicion that the weapon is "illegal," or have a reasonable fear that the presence of the weapon presents a threat to his safety. SB1195 still allows a search under either of those circumstances.

I'm too lazy as well but stautory construction tells us the Leg. can't have meant "reasonable suspicion" because they used the words "reasonable fear" and they are presumed to know the difference; the preceding sentence would cover Terry. Or not. I guarantee litigation on the point. Also, Terry frisks are for officer safety. This clause specifically expands the zone of concern to "others."