peeping tom and search by police motion to suppress

[tranquility]

However the exigency can't be caused by the police knocking at the door. In other words, if the police see drugs through a window and the criminal happens to see the cop, there is case law the police can enter on PC plus the exigency of destruction of the drugs. Here the cop called attention to himself by tapping on the window. That cannot bring about the exigency to combine with PC.

 

[justalayman]

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.

absolutely but there is no legal PC to support an exigent circumstance search either. The info used to make the claim of any search, including the claim of exigency, is all based on illegally gained intel.

A claim of exigence does not allow an unconstitutional search, merely temporarily sets aside the requirement to obtain a warrant prior to search. If a warrant could not be legally issued based on the facts, a search sans warrant due to exigent circumstances won't fly either.

I still at; depends on exactly what happened when the cop spoke to the kid at the door.

 

[BOR]

justalyman, here it is. I knew it was an Illinois case, but could not remember the defendant's name.

Syllabus:

ILLINOIS V. MCARTHUR

 

[justalayman]

. As long as they did have PC, I don't see a problem with that one.

 

[CavemanLawyer]

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.

I disagree. The Texas exclusionary is very broad and applies to both police and citizens, and specifically is triggered whenever any Texas law is violated in order to obtain the evidence. Take a look at Code of Criminal Procedure 38.23.

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

If a search or arrest is based solely on information obtained from trespassing, (criminal trespass is illegal under PC 30.05.) then any evidence obtained as a result will be suppressed...unless the taint is attenuated.

From the poster's original description it sounds like he just opened the door and didn't consent to anything. If this is the case I feel strongly the drugs cannot be used against him. If he did in fact consent to entry AND to a search then the question is whether his consent is sufficient to attenuate the taint of the citizen AND the police misconduct. There are six specific factors that are considered in this analysis.

1. proximity between consent and the illegal police conduct, meaning that the more time passes the more the consent attenuates the taint.
Here it sounds like almost no time passed.

2. Whether the illegal conduct brought about police observation of the particular object which they sought consent to search.
Sounds like this is exactly what happened.

3. Whether the illegal conduct was “flagrant police misconduct."
Not enough info to call this one in my opinion.

4. Whether the consent was volunteered rather than requested by the detaining officers.
It definitely doesn't sound like he volunteered consent.

5. Whether the arrestee was made fully aware of the fact that he could decline to consent and thus prevent an immediate search.
Not enough info.

6. Whether the police purpose underlying the illegal conduct was to obtain the consent.
Doesn't seem like it. This is the only factor in favor of the State in my opinion.

 

[janelle830]

hey sorry you guys for taking a while to get back on. this is the issue im having on my case.

ok when the cop knocked on the window i panicked as anyone else would do. all i saw was a flashlight and heard a man talking. then came the door knock. i open the door and the cop said " we witnessed a crime in progress and we need you to step outside" i said get a warrant and slammed the door shut. its even on the original police report the cop made. also i eventually stepped outside without consenting to a search and then was arrested.

now here are my questions. if the issue was considered exigent wouldnt the cops have just gained entry into my house without waiting? and from what i understand is that the 911 call alone creates exigency.

also i looked up the texas exclusionary rule and a guy told me that since the girl that violated my privacy didnt obtain the evidence the exclusionary rule didnt apply. which is a crock of s**t! if anyone can shed light on this subject please do. i know texas has a broader exclusionary rule than any other state but im in a tangle on this matter. does it still fall under the exclusionary rule even though she didnt get the evidence?

one more question. is witnessing a crime considered evidence in nature. not physical but observational?
thank u guys

 

[CavemanLawyer]

The exclusionary rule still applies regardless of who physically collects the evidence.

If an officer lawfully witnessed you possessing drugs in your home he could knock on your door and arrest you on the spot. An "on view" offense is one of the warrant exceptions in Texas. He still could not go inside your house and search though without going to get a warrant first. Exigency is not created automatically by a 911 call or anything else, it depends on the circumstances. Exigency in a situation like this is usually dealt with by doing a brief scan of the house and detaining all subjects until police can obtain a warrant. This way no one is free to destroy the drugs. I don't see exigency applying here at all if they arrested you before searching the house, which is what it sounds like from your description.

Yes an officer can testify that he/she observed you committing a crime and that is considered evidence. In Texas marihuana is actually one of the few drugs recognized by courts to be so readily recognizable to law enforcement that someone can be convicted based on testimony even when the marihuana itself is not admitted into evidence.

There are definitely many factors weighing in your favor here. Just let you attorney do the suppression hearing and let us know how it goes.

 

[janelle830]

so are you saying by them peeping through my blinds violated my constitutional rights and was considered a search?

also they never went into my house until the warrant was actually issued. another cop showed up like 30 min later with it after i had been detained. then they went in. but i was looking more toward the initial search to my back yard.

 

[BOR]

If an officer lawfully witnessed you possessing drugs in your home he could knock on your door and arrest you on the spot. An "on view" offense is one of the warrant exceptions in Texas.

Only if she stepped outside the door/doorway, then she is in a "public place".

 

[justalayman]

so are you saying by them peeping through my blinds violated my constitutional rights and was considered a search?

also they never went into my house until the warrant was actually issued. another cop showed up like 30 min later with it after i had been detained. then they went in. but i was looking more toward the initial search to my back yard.

from caveman's post:

If an officer lawfully witnessed you possessing drugs in your home he could knock on your door and arrest you on the spot.

Exigency is not created automatically by a 911

There are definitely many factors weighing in your favor here. Just let you attorney do the suppression hearing and let us know how it goes.

basically, the observation through the window was not lawful (or at least that is the general argument). As such, there was no PC for arrest and no PC for a search warrant. If things go like they should, at least based on your rendition, your attorney should be able to get the arrest and the subsequent search suppressed. Once that happens, there is nothing to support the charge and you walk.

Just let your attorney do his thing but be aware that unless you have not been open and honest here, his thing should be an attempt to get this charge dismissed rather than simply a plea bargain.

 

[tranquility]

Only if she stepped outside the door/doorway, then she is in a "public place".

There is a circuit split as to if an arrest can be made when one gives up the reasonable expectation of privacy by opening the door/window etc.

 

[BOR]

basically, the observation through the window was not lawful (or at least that is the general argument). As such, there was no PC for arrest and no PC for a search warrant.

What is your opinion, (it will be wrong unless you agree with me) ha ha, on Santana here, see syllabus.

http://supreme.justia.com/us/427/38/case.html

 

[tranquility]

Make a claim as to what you think the law is or how you differ. Take a position. There are lots of cases we could throw out which tangentially or directly address the facts and justalayman's claim.

(By the way, differing interpretations of Santana is why there is the circut split I mentioned in my previous post from the bright line rule of Payton v. New York regarding "threshold" issues.)

 

[justalayman]

There is a circuit split as to if an arrest can be made when one gives up the reasonable expectation of privacy by opening the door/window etc.

how are you claiming the loss of expectation of privacy allows the arrest for evidence that was obtained through illegal acts?

the OP was seen in his bedroom initially. The officer then came to the front door of the house. Unless the officer could see the MJ from that vantage point, the arrest was based only on the illegally gained information.

maybe I'm missing something there but if you take away the peeping tom action in the back yard, I see nothing that would allow an arrest or even rise to reasonable suspicion of a crime let alone PC. Even if the OP come out the door and walked down the street, there has been nothing presented that would allow a detention of any sort obtained by legal means.

 

[justalayman]

What is your opinion, (it will be wrong unless you agree with me) ha ha, on Santana here, see syllabus.

UNITED STATES V. SANTANA, 427 U. S. 38 :: Volume 427 :: 1976 :: Full Text :: US Supreme Court Cases from Justia & Oyez

the exigency was BS. The police created it in their own minds. Based on their claims, if I (if I was an officer), was simply driving down the street where I might be recognized by some unknown person that I believe might run and tell some target of mine I was in the neighborhood, that would create sufficient support to claim an exigency. That is essentially what they used as their justification in that case.


the hot pursuit claim: she was never outside of her house so they could not enter into a pursuit to continue.

plain view doctrine: nothing they could see was illegal so even if they wanted to argue plain view, they didn't see anything that would allow the entrance to the home.