Need serious advice please read

[medic5]

What if the cop asked her before he stepped on my property about the age of the girl and making sure she was certain? Would that have created the exigency they needed? Also lets say they truly believed it was exigent? Why did they never bust down my door? It took me atleast 10 min to come outside..

And i noticed the word obtained in 38.23a. The girl trespassed obviously, but since she didnt obtain evidence herself would this ignore 38.23a?

 

[StevenJ_420Law]

There is no question she was gathering evidence. The whole issue is not whether she was gathering evidence, her observations are evidence. It is whether you can make a compelling argument for suppressing that evidence and the evidence gathered by the officer subsequent to the peeping tom's evidence gathering.

The state will argue that even if the evidence gathered by the peeping tom was illegal, the subsequent search by the officer based on the now exigent circumstances was legal and that evidence (observations) should be admitted to evidence.

Because Texas has a protection that few states have, and in fact the US constitution does not have.. the right to privacy against unlawful search by citizens you might have a significantly better shot than in other jurisdictions.

The officer was, with full knowledge of the law, knowingly accepting the word of an obviously obsessed and deranged person who was admitting to violating the constitution of the great state of Texas. Joining this person, the officer negotiated his way through private property to engage in a little peeping tom action with his witness... but he was stumped! There were no little kids as far as he could tell. Again, even after viewing the act, he still had nothing indicating a crime.

So now he asks the deranged kid again "are you really really sure" and she says "Uhhuh".. and he still presses the search.

It is my opinion he overstepped his bounds, ESPECIALLY in light of a protection texas citizens enjoy. Not that that affects your life in anyway. You have a lot to think about.

 

[medic5]

thank you steven for helping me and not judging me on the act alone. i really do appreciate it. and that goes for others here. ive asked for help in other forums but they were quick to shut me down without a care. so again i thank you

so putting all your knowledge to the test on this matter.
how would you rule it?

i wont take your final answer as advice or a real answer
merely just an opinion.

 

[StevenJ_420Law]

Oh I dont know, I am a reader. I would read a lot more than I have before I even thought of a ruling, including boths sides points and authorities.

I personally think the officer asking the witness "golly, is this a crime?" after observing the act with his own eyes shows that he was acting in a search of a residence on the sole basis of the report of a witness who is questionable (with any diligent questioning by the officer) and literally nothing more and certainly, the exigent circumstance obviously ended the moment he couldnt recognize a crime once he looked at it with his training and experience and obviously at that moment, the act did not jive with the account of the mad woman and now the exigent circumstance was certainly ended. His observations are thus meaningless and hers are in violation of the law and this should be dumped as unlawful search in any jurisdiction, but especially with Texas' specific law.

 

[medic5]

i wonder if the initial search by my ex would create the beginning of the poisonous tree. i mean it makes sense. everything under that search is tainted technically

 

[justalayman]

i wonder if the initial search by my ex would create the beginning of the poisonous tree. i mean it makes sense. everything under that search is tainted technically

I believe that is the intent of the exclusionary rule but rather than just applying to the police action like it does in so many other states, in Texas they include the acts of a private citizen to be under the same rule.

 

[medic5]

So are you suggesting that it does fall under the tree?

 

[medic5]

also can someone explain what attenuation of taint means and if it applies to my case?

 

[justalayman]

also can someone explain what attenuation of taint means and if it applies to my case?

that just isn't a good question to ask of me at 1:30 in the morning.

attenuation

1 : to make thin or slender
2 : to make thin in consistency : rarefy
3 : to lessen the amount, force, magnitude, or value of : weaken
4 : to reduce the severity, virulence, or vitality of <an attenuated virus>

and taint:

1 : to contaminate morally : corrupt <scholarship tainted by envy>
2 : to affect with putrefaction : spoil
3 : to touch or affect slightly with something bad <persons tainted with prejudice>

so, literally, it would mean to reduce the contamination.

 

[medic5]

but how could you apply that to my case

 

[CavemanLawyer]

38.23 clearly "applies" since this female trespassed to gain the information for the tip that ultimately lead the police to seize evidence. The trespassing statute does not require trespassing signs and I don't think it would be hard to show that her actions invoked 38.23. But just because she trespassed that doesn't mean the evidence was ultimately obtained illegally. I think there is a very strong argument that HER vantage point in the window was unlawful but the officer's vantage point was not. Officers are allowed to go somewhere that would otherwise be trespassing for citizens because they have privileges where applicable. Her tip might have got them looking but once on the property they can go around the house to confirm a report of a crime in progress like this because they aren't there to collect evidence they are there to protect a child. Think of if the woman reported that the girl was being stabbed and she called for an ambulance. That EMS worker would be trespassing if they walked into any random person's house, but now they have a privilege because they are there for medical aid. The EMS person gets in the house and calls police and the police come take the knife. Did the original woman trespass? Yes. Did the EMS person trespass or otherwise commit a crime? No. I think the same applies to the officers here.

The way it is supposed to work when a private citizen obtains information of a crime illegally is that the police are supposed to take that information and simply use it for a reason to start investigating that suspect...and police need NO reason to just investigate someone. The police then gain probable cause on their own before doing any sort of search, and then whatever is gained based on THAT probable cause is lawful regardless of the original unlawfully obtained information. But when there is an exigent circumstance like a child being molested (legally that is exactly what it is) there is no time or point in conducting an independent investigation. You make sure the child is safe and then you can back up and worry about PC, which is exactly what the officers did. If you read any case deciding the admissibility of evidence obtained possibly in violation of 38.23 then you will see that they always look to the legislative intent of the statute, which is to provide incentive for officers to follow the law and to avoid an INTENTIONAL violation of someone's rights or the circumvention of the law. This example seems to be an extremely clear example of officers put in a situation where they had to wear the caretaker hat first and get in there to protect the child and I don't think that can be viewed as an intentional violation of the law. Like I said before, the officers' actions sound very reasonable to me.

There is no "pitches" motion in Texas. If you want to look at the officer's employment files you just subpoena them like anything else. Every officer in Texas has two separate files. One is general employment info like rank, salary, etc.. and it is pretty freely given under a subpoena. The info is also pretty useless for the defense. The the other file is confidential and contains disciplinary actions and other internal information. When you subpoena this the city or county attorney files a motion to quash and the judge views it in camera (just the judge sees it.) The judge must give the defense anything that is mitigating or exculpatory to the defense. Unrelated incidents that gets the officer disciplined or fired probably would not be disclosed. You could of course explore these issues to some degree when cross examining the police officer. Generally speaking it should not come in at trial but anything can happen and I guarantee the prospect of having to sponsor disgraced officers as witnesses will make the State think twice about going to trial.

"Attenuation of taint" is a concept that applies to both 38.23 as well as general 4th Amendment violations. Unlawfully obtained evidence is affectionately referred to as fruit of a poisonous tree. The evidence (fruit) itself might be fair and clean (like DNA which can give very scientific and unbiased answers ) but it came from an unlawful source (poisonous tree) so it can't be used. Attenuation refers to some intervening fact that purges the taint because one way or another, the police get to that same evidence through lawful means rather than relying on the original unlawful act. The classic example of attenuation is when officers get a warrant based on probable cause independent of whatever unlawful information existed. So how does this apply to your case? I think the exigency of the circumstances and the arguable good faith reason for entry attenuate that entry, and the warrant attenuates the seizure of the condom.

 

[medic5]

i understand the exigency, and the idea you used about the emts can not be used since emt's in the first instance would not enter a scene until it is successfully secured by law enforcement. scene safety is the golden rule of anything you do as an emt.

second, let me point out that the ex had already been verbally warned to stay off the property. after reading alot of cases where people try to use 38.23 most appeals get rejected because the defendant lacked standing. in my case i do have standing. the girl obviously committed criminal trespass and then violated my privacy rights. she did this for personal pleasure, she did not go peep for the sake of the community.

so let me get this clear. i can pick any given day at any given time and decide that im going to walk around my neighborhood to peoples backyards and peep to make sure they are living legal? i mean i would be doing this in good faith.

are you expecting me to believe this is ok?

also some cases get rejected when using 38.23 because the illegal observation(evidence) was ultimately going to be turned over to the police. which made it ok.

so now as long as i go walking through peoples yards looking for illegal activity with the intention of reporting whatever illegal things i see to the cops would make me a hero in the courts?

is this really what you want me to believe???

i dont care about the cop situation. i know that can be justified although it doesnt meet the "totality of the circumstances"
im directed strictly at the initial search of the private citizen

how do you justify that? if you say its ok you are granting permission for anyone to do it.

 

[CavemanLawyer]

I gave you my opinion, I didn't say you had to like it. You cant say the EMS person example doesn't apply because they have a policy of not entering until the scene is secure. You missed the point. The point is that of privilege. If you have a privilege to go somewhere it is not trespassing. Use any other example you want, a fireman for example. The point is that the police stand in different shoes than the private citizen.

No people can't go poking around other people's property. This evidence can be used against you and you can be sent to prison for life and this ex girlfriend can still be prosecuted for trespassing and you could sue her for damages if you had any. But just because a citizen does something illegal that doesn't give the victim of THAT act a license to commit whatever crime they are engaging in. The bottom line is that evidence is excluded in court when it is obtained as a result of wrongdoing. I'd tend to agree that this woman engage in wrongdoing, but that doesn't necessarily mean that the evidence was obtained directly as a result of it. It is possible for police to obtain tainted information and act in such a way as to purge that taint and lawfully obtain evidence. This is always part of a 38.23 violation analysis. My opinion is that the officer's acted in such a way as to attenuate the taint of the woman's unlawful act. You don't have to believe this if you don't want to. Your best bet is to take the advice of your attorney.

 

[StevenJ_420Law]

Its always a safe bet that a defense supress motion will fail because they usually fail.