peeping tom and search by police motion to suppress

[janelle830]

What is the name of your state (only U.S. law)? texas

in texas, ok straight to the point i was messing with marijuana in my bedroom. a girl that i used to know goes to my backyard and looks through a small hole in the blind and sees me messing with marijuana and calls 911. the cops show up and she walks them over to the back yard and shows them. they bend down to look and see me. the cop then knocks on the window and tells me to open the door because he witnessed a crime. they arrest me and now im in court.

now we are at the hearing phase for a motion to suppress. what can i use for good ground to try and get the evidence suppressed?

is there even a valid argument for my side?

 

[CdwJava]

What does your attorney say?

Off hand you have the possibility of the police being in a place (your yard) where they had no lawful right to be. They will have to explain what they were doing out there. If that fails, then there may be some other nuances of TX law that might apply. That is why an attorney is so important.

 

[janelle830]

all my lawyer says is that we might have a shot in regards to the 4th amendment and expecation of privacy. but heres the problem. can a regular civilian go through your backyard invade your privacy in order to see criminal activity then call 911(which creates probable cause for law enforcement) and all this be legal?

this is the situation in which i cant get an answer from

 

[CdwJava]

One question will be whether or not the police believed that the girl that led them to your window had the lawful right to grant them permission to enter the yard. If the yard is not secured from the general public, the expectation of privacy diminishes somewhat. If she lived there, used to live there, or frequently visited - or claimed to - the police could well have acted on good faith.

If they truly had to maneuver to peak through some sliver of the window, then I suspect the evidence will be tossed. But, it will depend on a great many factors that we do NOT know - like what the police will say to justify their actions.

 

[janelle830]

ok the girl didnt live there and never did. she was my ex and was spying on me. also the yard did not have a fence but they did have to walk around the yard to the back and position themselves less than a foot away from my window. i also know that they may still be at a vantage point. but they had to kneel down to look through this small hole. plus my light was off and only the tv was on. i would think the looking part constituted a search.

also if this was a search, in order to do it would the cops have needed probable cause and a warrant? or just probable cause alone? and is the word of a civilian who is not a police informant considered probable cause on its own..

sorry for all the questions

 

[BOR]

ok the girl didnt live there and never did. she was my ex and was spying on me. also the yard did not have a fence but they did have to walk around the yard to the back and position themselves less than a foot away from my window. i also know that they may still be at a vantage point. but they had to kneel down to look through this small hole. plus my light was off and only the tv was on. i would think the looking part constituted a search.

also if this was a search, in order to do it would the cops have needed probable cause and a warrant? or just probable cause alone? and is the word of a civilian who is not a police informant considered probable cause on its own..

sorry for all the questions

Since you let them in, it strongly implies consent, and no warrant is needed.

You need to show, and this would be very difficult, that you were forced to open the door in a manner if you did not they would break it down and harm may come to you.

As Carl points out about being in an area they are or are not legally entitled to be, the Curtilage is protected from a search in most cases.

If a civilian stated there was drug use in a HOME, no it would not establish PC to enter without a warrant. If they simply lead him to your window, that may be another issue to examine, yes.

Thses issues need to be addressed by your attorney, as the TX constitution may afford greater protection than the 4th AM?

 

[CavemanLawyer]

but heres the problem. can a regular civilian go through your backyard invade your privacy in order to see criminal activity then call 911(which creates probable cause for law enforcement) and all this be legal?

this is the situation in which i cant get an answer from

The exclusionary rule in Texas applies to both law enforcement as well as private citizens. This sure sounds like an unlawful search to me. I'd want to see a picture of the layout of the yard and so forth to really make the call but it sounds like this private citizen is arguably trespassing in order to gain this vantage point.

 

[tranquility]

I think there are many issues here, but one problem I have is the person opening the door. Let's pretend there was not probable cause for a warrant or to combine with exigent circumstances (created by the police) for an entry.

The cops knock on the window, the owner opens the door and lets them in. Is that consent? Even if the reason the cop knocked on the window is through an illegal search, wouldn't consent cut off the tree?

 

[justalayman]

opening a door is not an invitation to enter and an invitation to enter is not permission to search. A lot would depend on what transpired when the kid opened the door.

 

[41tellthetruth]

Tainted search

I ask this to the other members for consideration. If the original observation wasn't legal due to trespassing etc. then anything gained from it would be inadmissible.

 

[ERAUPIKE]

The key word here is curtilage.

 

[justalayman]

as I said; it depends on what happened when the kid opened the door.

If the kid said no, I don't have any dope, the officer would either have to justify an immediate search which he couldn't since his intel was gained illegally or attempt to gain a search warrant from a judge which again, should not be sustainable based on the source of the evidence.


if the kid opens the door and the cop asks "do you have marijuana in the house"? and the kid says "yup, got pounds of it in my closet" quite likely the arrest is valid.

so, if you want an answer, you will have to know what happened between the time the cop looked in the window and the kid got arrested.

 

[tranquility]

Consent will make the fruit of the poisonous tree quite tasty.

 

[BOR]

I ask this to the other members for consideration. If the original observation wasn't legal due to trespassing etc. then anything gained from it would be inadmissible.

Are you talking about the Police tresspassing?


As far as the government, only constitutional violations trigger the exclusionary rule, not statutory ones, so tresspassing is not the issue, but an UNconstitutional search under the 4th AM, if indeed it was one peeping in.

 

[BOR]

if the kid opens the door and the cop asks "do you have marijuana in the house"? and the kid says "yup, got pounds of it in my closet" quite likely the arrest is valid.

One element of a warrantless entry can "possibly" be destruction of evidence before a warrant is secured. The dude can't flush down pounds.

I know of a case, and the name escapes me now, but have it in my case notes here, where officers forbade a man from entering his house for 2 hours to secure a warrant, it was held Constitutional. This case though caught the man outside his home upon entry.

Besides the 1st, the 4th AM is the most litigated, as you already probably know.