12-12-03

Author Robert Hill tells of visiting Bangkok, Thailand, where he was invited to a special celebration given by the King and Queen. His Thai guide, a young man named Joseph, asked several questions as he drove them to the pavilion. He knew a little English and was delighted to carry on a conversation. When he asked where the Hills lived, they told him Richmond, Virginia.

“Oh, you are a rich man?” asked the boy.

Bob laughed and told him, no, he wasn’t rich.

Bob recalled, “Then he asked if we owned an automobile and I told him we had two cars in our family. His next question was about the house where we lived. I told him it was a rather simple house with ten rooms. He was amazed at its size, especially when he related his family lived in just two small rooms.

“Then he asked about our family. I told him we had four healthy children, two in college and two still at home.

“Joseph was silent for a moment or so, then he replied, ‘You ARE a rich man.’ We laughed, but deep in our hearts, we knew he was right, though we had never thought of it in those terms. We were rich. But were we thankful?”

Legal Issues - Search and Seizure

WARRANTLESS SEARCH OF CLOSED COOLER IN GARAGE NOT JUSTIFIED BY EXIGENCY.

The police department received a call from the defendant’s neighbor that she was “tired of [defendant] selling marijuana out of his garage.” An officer who was dispatched to investigate first contacted the caller for more information.

The officer then knocked on the front door of the defendant’s house and spoke with a young boy who answered. The boy said an adult was in the garage.

When the officer knocked on the closed door to the garage, profanities were shouted in response. The officer then identified himself, and after a few minutes, the defendant opened the door and stepped outside, shutting the door behind him.

Inside the garage, the officer was able to see a scale with marijuana residue and seeds on it, a set of finger scales, and a large green pipe lying on a table. He also smelled the strong odor of fresh marijuana and noticed plastic baggies and rolling papers on the floor. A brick-sized cellophane wrapper containing marijuana residue was in a garbage can outside the garage.

As the defendant and the officer talked, a second man emerged from the garage, leaving the door partially open behind him. The officer recognized this second man as someone who was suspected in a shooting the week before.

Fearing the men, who were acting nervously and hiding their hands, might be armed, the officer called for backup and frisked them. A switchblade knife and small plastic bag of marijuana were found on the second man, and he was arrested.

The officer told the defendant he was “being detained” and that the officer had seen drug residue and paraphernalia in the garage. He then asked, “Is there anything else I’m going to find in there that’s illegal, any more marijuana?”

After a moment, the officer stepped into the garage and the defendant said, “Well, I guess there’s some pot in the red cooler.” The cooler and pipe were seized and marijuana was found in the cooler. The officer then applied for a search warrant.

The defendant moved to suppress his oral statement about the contents of the cooler, and the marijuana found inside the cooler. He argued that the statement was the product of custodial interrogation and that he was not warned.

Further, the defendant claimed that no exigent circumstances supported the warrantless search of the garage. The trial court denied the defendant’s motion, ruling that he had been only temporarily detained at the time he made his statement, and it was not the result of custodial interrogation.

The trial court also found that exigent circumstances justified the warrantless search of the cooler. The defendant appealed.

Holding: “Neither the Fourth Amendment nor article 38.22 of the Texas code of Criminal Procedure preclude the admission of noncustodial statements.” If the defendant was not in custody or was not “interrogated,” then his statement about the contents of the cooler was admissible.

“A person is ‘in custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. The ‘reasonable person’ standard presupposes an innocent person.”

A temporary investigative detention is not the equivalent of an arrest. Investigative detentions may not last longer than necessary to investigate, and “must use the least intrusive means possible.”

Miranda warnings are required only when a person has been taken into “custody.” Telling a suspect he cannot leave, or creating a situation that a reasonable person would understand to mean that he cannot leave; depriving a suspect of his freedom in any significant way; or not telling a suspect he is free to leave when probable cause exists to arrest, all may constitute “custody.”

“The use of handcuffs does not necessarily constitute arrest or custody.” On the other hand, even an encounter that begins as consensual may become custodial based on the conduct of law enforcement officers.

The officer in this case testified that while he initially talked with the defendant and the second man, neither was free to leave. The officer’s conduct did not convey to the suspects, however, that the detention was more than temporary, and this did not change when the officer frisked the second man.

The “key moment” was when the officer frisked the defendant and handcuffed him behind his back. At that time, the other man already had been arrested, and the officer told the defendant he was being detained and that he had seen marijuana, drug residue, and paraphernalia in the garage.

The officer had probable cause to arrest the defendant based on what he had seen; he had handcuffed the suspect; and he had told him he was not free to leave. It was then that the officer asked whether he was going to find anything else illegal in the garage.

When that question was asked, the defendant was in custody. He had been physically deprived of his freedom, told he could not leave, and told that the officer had seen evidence that gave him probable cause to arrest.

“Interrogation” is express questioning or any action or words by the police that they “should know are reasonably likely to elicit an incriminating response.” The defendant in this case was interrogated when the officer asked him, while in custody, whether anything would be found in the garage.

That question was “reasonably likely to evoke an incriminating response,” given the situation and what the officer had told the defendant. No significant time passed between the question and the response, which came without Miranda warnings.

The warrantless search of the cooler in the garage also was illegal. While the State argued that is was justified as a “protective sweep” of the garage, a sweep is not a full search of the premises, but only a ”cursory inspection of those spaces where a person may be found.”

A protective sweep must be based on a reasonable suspicion that someone is in the house, apartment, or building who poses a danger to the officer. In this case, the officer was justified in making a protective sweep of the garage because a weapon had been found on the second man, the lighting in the garage was poor and its interior could not be seen fully from outside, and the officer did not know how many people might be in the garage.

The sweep was limited, though, to discovering whether any persons were in the garage.

It could not justify looking in the cooler.

Generally, exigent circumstances can excuse a search warrant, and the trial court found them to exist in this case. To prove exigency, the State was required to prove “that the police could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant.”

Probable cause to enter the garage had been established by the officer’s observations, and he could have seized the cooler. Opening the cooler and searching its contents required more than probable cause; it required a warrant or some exception to the warrant requirement.

The office had ample time to obtain a search warrant, and eventually did so. “The warrantless search served no law-enforcement purpose that could not have been served by waiting for the warrant.” No one was in the garage; the two men were handcuffed and under arrest; and the cooler was in the officer’s control.

The drug paraphernalia was in the officer’s plain view, and he was authorized to seize it. Plain view could not justify the seizure of the marijuana in the cooler, though, because the contents were not “immediately apparent” to the officer.

Because of the introduction of the defendant’s oral statement and the marijuana found in the cooler was harmful to the defendant, and because neither piece of evidence was obtained legally, the conviction was reversed. Ramirez v. State, No. 03-02-00367 (Tex. App. – Austin, 5-1-03).