Fourth Amendment

What is the “Border Search Exception” to the Fourth Amendment?

By Peek & Toland on February 3, 2019

As a general rule, the Fourth Amendment to the U.S. Constitution requires that law enforcement officers have a warrant prior to conduct any searches or seizures designed to find evidence of criminal activity. While there are some exceptions to this general rule, one major exception is the “border search exception,” which often is relevant to law enforcement activity on the Texas-Mexico border.

The Immigration and Nationality Act (INA) specifically allows certain types of warrantless searches and seizures within 100 miles of any external boundary of the U.S. Law enforcement officials can conduct limited searches and seizures, without warrants or probable cause, at border crossings, airports, seaports, and checkpoints set up near the border. This exception is based on the theory that the U.S. has the right to control its borders. However, courts have held this exception to include only brief questioning about immigration status or customs laws; any further searches or seizures must be based on a reasonable suspicion of criminal activity.

What is the Border Search Exception to the Fourth Amendment?

For example, it is not permissible to pull over a vehicle traveling within 100 miles of a border unless there is reasonable suspicion that an immigration violation or crime has occurred. Likewise, law enforcement officers cannot search a vehicle that they pulled over within 100 miles of a border unless they have either a warrant or probable cause that a crime has occurred.

Unfortunately, there are some situations in which law enforcement officials expand the permissible scope of these warrantless inquiries too far. When this occurs, any evidence obtained as a result of a search or seizure may be subject to suppression or ruled inadmissible by the court. For the most part, the farther away from the border the warrantless search or seizure occurs, the more critical courts may be about the legality of the search or seizure.

No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases on a daily basis and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

Posted in Criminal Defense, Immigration

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When is a Warrantless Police Search Allowed in Texas?

By Peek & Toland on March 30, 2018

Police officers usually require a warrant to search your property. However,  some cases, a warrantless police search may not be unlawful under the Fourth Amendment.

An article on the website of the Texas District & County Attorneys Association points out today’s law on searches and seizures is largely the result of more than 200 years of judicial evolution.

The law has changed. While a police officer’s subjective intent in making a traffic stop does not matter today, it was relevant a quarter of a century ago.

Warrants are favored for a number of reasons, namely:

  • The officer or the prosecutor who drafts the warrant is able to highlight the facts and draft a statement of probable cause with care.
  • A magistrate reviews the information from the prosecutor or the police officer before deciding to issue the warrant.
  • If a case goes to the court with a warrant, there is a clear presumption that the search and seizure was lawful.

The Supreme Court has, however, ruled that police may conduct a warrantless search and still be in compliance with the Fourth Amendment if it is reasonable under the circumstances. The exceptions made to the Fourth Amendment’s requirement for a warrant reflect the Supreme Court’s reluctance to impede the job of law enforcement officials unnecessarily.

When is a Warrantless Police Search Justified?

When a Warrantless Police Search is Legitimate

In some cases, it’s not practical or desirable to force an officer to stop what he’s doing to get a warrant, the Supreme Court ruled.

When a Warrantless Police Search May be Reasonable

There are a series of scenarios in which a warrantless search may be deemed reasonable. They include:

A Search for Weapons.

If a police officer reasonably believes criminal activity is going on in a public place, he is allowed to stop a suspect thought to be involved in criminality and to conduct a limited search of the suspect’s outer clothing for weapons that could be used against the officer. A police officer may also ask for identification. They suspect is under no obligation to produce it.

A Felony Arrest in a Public Place

A warrantless search may take place during a felony arrest in a public place, even if the arresting officer has sufficient time to obtain a warrant. Felony arrests in places not open to the public typically do require a warrant, unless a police officer is involved in the “hot pursuit” of a fleeing felon. If a misdemeanor is committed in the presence of an officer, the Fourth Amendment also allows a warrantless arrest.

Exigent Circumstances

Exigent circumstances may justify warrantless searches, seizures, and arrests. To evaluate whether exigent circumstances justified the conduct of an officer, a court must review all of the circumstances. The courts consider the seriousness of the underlying offense and whether a suspect was seeking to escape the scene. Screams, shots or a fire in a building have met the test of exigent circumstances under the Fourth Amendment’s warrant requirement.

Protection of Life

In the case of Warden v. Hayden, the Supreme Court justices held the entry into a residence by police officers chasing an armed robber was justified. Any delay to secure a warrant would endanger the lives of others. The information must be fairly specific and direct in these cases. Merely investigating a potential danger is unlikely to meet the protection of life exception.

Community caretaking

Community caretaking is a variant on the exigent circumstances doctrine. It allows a peace officer to stop someone when the officer reasonably believes that person needs the officer’s assistance.

This exception is relevant when officers investigate vehicle collisions. A police officer does not need a basis to believe the suspect is taking part in or about to engage in any criminal activity under the community caretaking stop doctrine.

The issue of police stops and warrants is a complicated one. Please call our experienced Texas criminal defense team for more help and assistance. Call (512) 474-4445.

Posted in Criminal Defense

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Seven Key Questions About Police Power of Search Under the Fourth Amendment

By Peek & Toland on August 3, 2016

An incident in which the FBI was found to have bugged a court in California raises some disturbing questions about the powers of police search under the Fourth Amendment.

In May, the East Bay Express reported how the FBI hid surveillance devices around Alameda County Courthouse for almost a year, despite having no search warrant.

 Questions About Fouth Amendment Rights

The agency was investigating the activities of an Oakland landlord. The surveillance extended to hidden microphones in light fixtures on steps outside the courthouse which captured the conversations of those who showed up for foreclosure auctions. Microphones and cameras were also placed in parked cars next to the courthouse.

The recording of conversations falls under the Fourth Amendment, which makes “unreasonable searches and seizures,” unlawful. It also makes for some interesting questions about what is unreasonable as it has been a long time since the writing of the Constitution and technology has moved on since.

Our Austin criminal defense lawyers represent people charged with a range of federal offenses including white collar crimes and drug offenses in Texas. If agencies like the FBI are using unreasonable searches and seizures, it could have a bearing on the case.

Key Questions about Search under the Fourth Amendment

1 Do They Have a Warrant?

Searches with a warrant should be reasonable, but questions linger about their legitimacy. For a warrant to be legitimate, it requires the signature of a magistrate, a description of the premises to be searched and a description of the items to be seized.

2 When is a Search Without a Warrant Lawful?

There are some circumstances in which police can conduct searches without a warrant. They include at checkpoints like international borders and airports, during an emergency or a police chase or when contraband is on full view. Most dog sniffer searches don’t require a warrant. However, a warrant is needed to search a cell phone.

3 Can Police Read Text Messages?

Texas has some strong laws about protection when it comes to privacy. The case of State v. Granville ruled police cannot search an inmate’s cell phone when he is in custody. In 2010, the U.S. Supreme Court ducked the issue of whether police have a right to read your text message. If they don’t have a search warrant, they are on dubious legal ground.

4 When Can Police Search Your Home?

Some of the strongest Fourth Amendment protections concern the right to search a home. It offers considerable protection against an unwarranted search and the seizure of possessions. Unwarranted is not only without a warrant. Police must have an acceptable reason to search your home.

5 Can the Police Search Your Mail?

Your mail can be searched if police have a search warrant, and it’s based on probable cause. Mail is protected from searches without a warrant if it’s in your mailbox but not if it’s in your trash. Some other exceptions are detailed here by FindLaw.

6 Can You Be Lawfully Followed in Public?

If you are out in public, you don’t benefit from the same right for privacy as you have in your own body. Police can usually follow people without facing legal consequences if they are in a public place.

7 When Can Police Conduct Intimate Searches

A case in Irving Texas, in which two women were given cavity searches for littering in 2012, caused outcry and led to a lawsuit against troopers. These kinds of searches are usually only allowed when there is a reasonable suspicion that the suspect is hiding a weapon or contraband in the area that is searched. If a strip search or a cavity search is illegal, any evidence it reveals cannot be used in the prosecution of a suspect.

Our experienced Austin criminal defense attorneys are well versed in your Fourth Amendment rights and will fight against charges brought in violation of your rights. If you are suspicious about the lawfulness of the case against you, call us for a free consultation at (512) 474-4445.

Posted in Criminal Defense, Drug Crimes

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Supreme Court Decides Fourth Amendment Search Case in Favor of Police

By Peek & Toland on August 1, 2016

The U.S. Supreme Court has decided an important Fourth Amendment search case in favor of investigators after a suspect challenged the discovery of drugs, arguing police had no reasonable suspicion to stop him.

In the case of Utah v. Strieff, the justices considered search and seizure under the Fourth Amendment.

The long-running case followed a 2006 incident in which police received an anonymous tip that narcotics were for sale at a house in Salt Lake City in Utah. A drug detective became suspicious after he saw a considerable number of people making brief visits to the house over the course of a week. While the police had the house under surveillance they stopped Edward Strieff, Jr. for questioning.

Supreme Court cases explored fourth amendment search rights

At Peek and Toland, PLLC, we represent many defendants who are accused of drug crimes in Texas. In some cases, the charges have been brought after illegal stops and searches. We were, therefore, interested in the result of this important case.

In Salt Lake City, Officer Douglas Fackrell apprehended Strieff at a nearby parking lot. The narcotic detective identified himself and asked Strieff what he was doing at the home. He asked to see his identification and gave the information to a police dispatcher, who told him that Strieff had an outstanding arrest warrant for a traffic violation.

Police Search Found Drugs on Suspect

The officer searched Strieff and discovered methamphetamines and drug paraphernalia. He was then arrested.

Strieff later challenged the legality of the search and the arrest, claiming Fackrell lacked reasonable suspicion to stop him. He argued that the evidence recovered from the search should be suppressed.

The state claimed that the exclusionary rule, which decrees evidence obtained after an unlawful stop is tainted and cannot be used, did not apply because the discovery of the traffic warrant broke the chain of causation between an unlawful stop and the discovery of evidence.

The trial court denied the defense motion. The Utah Court of Appeals affirmed the decision of the lower court. However, the case went to the Utah Supreme Court which reversed the decision of the trial court, ruled there was not an exception to the exclusionary rule, and ordered the evidence to be suppressed

The U.S. Supreme Court considered the attenuation exception which finds investigators can use evidence obtained through unlawful government action if there is a sufficiently weak connection between the misconduct in question and the discovery of the evidence.

The Supreme Court considered whether the Fourth Amendment bars the use of evidence if police learn about an outstanding warrant for a suspect’s arrest after a stop that is later revealed to be illegal.

The Justices concluded that while the short time between the unlawful stop and the search of Strieff, seemed to favor the drug evidence being suppressed, the presence of a valid arrest warrant against Strieff was an “extraordinary intervening circumstance.”

The justices also alluded to the absence of any fragrant misconduct by the arresting officer who they pointed out was engaged in a legitimate investigation of the drug house.

The U.S. Supreme Court reversed the finding of the Utah Supreme Court 5-3, in an opinion written by Justice Clarence Thomas on June 20 and found the meth and paraphernalia evidence was admissible. Justice Sotomayor filed a dissenting opinion in which she blasted the majority which she accused of trampling on Fourth Amendment freedoms.

If you or a family member has been charged with a drug related offense, you are likely to be facing serious consequences. It’s important to contact a Texas criminal defense attorney as soon as possible. Call us at (512) 474-4445.

Posted in Drug Crimes

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