Search and Seizure

Published on: February 3, 2018

Bexar County District Attorney’s Office Implements New Cite and Release Program for Marijuana Cases

San Antonio resid marijuana-300x225 ents and visitors who are found in possession of marijuana by the Bexar County Sheriff’s Office may be eligible for a new “cite and release” program that the Bexar County District’s Office has initiated. The program is currently in its trial phase and currently only working with the Sheriff’s Department. Individuals who are eligible would be entered into a pretrial diversion program and ordered to pay a $250 fine, any restitution, perform eight hours of community service, take a course and provide a urine sample.

The stipulations of the program are not entirely clear, however, and there is no indication what would happen to an offender if they fail to complete the pretrial diversion. Other pretrial diversion programs implemented by the Bexar County District Attorney’s Office come with an agreement that if the offender does not finish the program, a guilty plea is entered on their behalf. This program also allows an officer to use his discretion in who will be arrested and taken to jail and who will be cited and released on the scene.

Possession of marijuana in Texas can have some serious consequences. Possession of 0-2 ounces is a Class B misdemeanor with a possible punishment of up to six months in jail and a fine up to $2,000.00. Possession of 2-4 ounces has a possible punishment of a year in jail and a fine up to $4,000.00. There are severe collateral consequences as well. For example, someone convicted of misdemeanor possession with have their driver’s license suspended. Some offenders who are convicted may not be able to receive federal financial aid.

Published on: October 30, 2012

Supreme Court to Hear “Dog Sniff” Cases

by Law Office of Dayna L. Jones

The Supreme Court of the United States is now in session. Two cases are to be heard on Wednesday, October 31. They are both from Florida and both involve the use of police dogs in the gathering of evidence in regards to illegal narcotics. The court will decide if such use violates the Fourth Amendment. That amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Currently, the Bexar County Sheriff’s Office maintains a Canine Unit consisting of five handler officers and seven dogs. Some of the dogs are patrol dogs, some are bomb detection dogs, and some are narcotics detection dogs. Canines trained for the narcotics division are used to detect the scent of marijuana, heroin, methamphetamine, and cocaine. According to the Sherriff’s Office, the dogs can locate drugs in houses, cars, and even buried underground.

In the case of Florida v Jardines, (Oral Argument Transcripts) the defendant maintains that a warrantless “sniff test” by a dog at his home with live plants inside violated his right against unreasonable searches. Was a trained narcotics canine sniffing at a front door to a private residence a search under the Fourth Amendment and therefore a violation of privacy? The defense argues that the “sniff test” should have been conducted after there was evidence of a crime.

In the case of Florida v Harris, (Oral Argument Transcripts) a valid traffic stop for driving with an expired registration tag resulted in a warrantless search of the defendant’s truck. The police officer had his dog, Aldo, sniff the outside of the truck. Aldo “alerted” at the door handle and the officer searched the vehicle’s interior. The officer admitted at the trial that the dog can pick up lingering “residual odors”. Does an “alert” from an odor that could have been lingering for an unknown amount of time result in probable cause for a subsequent search?
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Published on: November 16, 2011

U.S. Supreme Court Hears Oral Argument on Illegal Strip Searches — Ruling Could Limit When San Antonio Officers May Search Detainees

by Law Office of Dayna L. Jones

On October 12, 2011, the United Supreme Court continued its new term and heard oral arguments on a case that is a Fourth Amendment issue. The Fourth Amendment to the United States Constitution, which applies to the citizens of San Antonio, states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the oral arguments are over, the opinion from the court is to be determined.

Albert W. Florence, Petitioner v. Board of Chosen Freeholders of the County of Burlington, et al. raises the question of whether or not a jail or prison has the right to conduct a strip search on every person who is taken into custody, no matter what the charge(s) may be. This is a Fourth Amendment issue dealing with suspicion-less strip searches – should there be a flat rule or should it be determined on a case by case basis? This particular case began in 2005 when Florence was in the car with his pregnant wife and 4-year-old daughter on their way to dinner at his mother-in-law’s house. His wife was driving and was pulled over for a routine traffic stop. Because the car was registered in Mr. Florence’s name, the officer asked to see his identification in addition to his wife’s. When the information was checked, the officer saw that there was a warrant for Florence because of an unpaid fine. Florence carried a copy of the court record to show that he actually paid the fine, but the officer took him into custody anyway. Florence was in custody in both Burlington and Essex Counties for a total of six days before he saw a judge, at which time he was immediately released. While he was in custody, Florence was subjected to two strip searches. Florence filed a lawsuit because he asserted that the searches were unreasonable because he was being held for failure to pay a fine, which is not a criminal offense in New Jersey (and let’s not forget that he had already paid the fine).
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Published on: October 24, 2011

Watch Out San Antonio, Big Brother Could Be Keeping an Eye on You

by Law Office of Dayna L. Jones

big brother.jpg The United States Supreme Court will hear arguments on Tuesday, November 8, 2011, for the case of U.S. vs. Jones. In 2005, police in Maryland attached a GPS device to Antoine Jones’ car. They tracked his every move 24-hours a day, seven days a week, for four weeks. All of this was done without a warrant and without his consent. Based on information gained from this warrantless GPS tracking, Jones was sentenced to life in prison on drug charges. The D.C. Court of Appeals overturned the conviction and ruled that the constant GPS tracking violated Jones’ Fourth Amendment rights.

The Supreme Court must now answer the questions: (1) Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

The Fourth Amendment to the United States Constitution states that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Founding Fathers could not, obviously, anticipate such technology as GPS devices and cell phones, but the amendments must evolve and adapt to maintain the Constitutional integrity and original intent of the document. And San Antonio residents, as citizens of the United States, justifiably expect the three branches of government to maintain a political system where it adheres to limits in power and endeavors to uphold reason, common sense, and individuality.

Are the measures the government employs to catch the bad guys restricting the basic freedoms that San Antonians take for granted? When the government and its acting bodies are allowed to regulate unchecked, we run the risk of living in a world that weakens our pride, damages our liberty, and distorts our equality. Are we willing, as citizens of Bexar County, to sacrifice our freedoms in the face of so-called security? People are expected to turn a blind eye to the repression of civil liberties and Constitutional guarantees for the supposed greater good. Are Texans implying consent to have our movements tracked and monitored simply by driving our cars on public roads? American citizens live under an expectation of privacy and those who possess positions of governmental power do so because of our consent.
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Published on: June 20, 2011

San Antonio, Texas “No Texting While Driving” Law Implicates Fourth Amendment Search and Seizure Concerns – But This Will Not be a Texas Law Says Governor Perry

by Law Office of Dayna L. Jones

San Antonio, like many cities across Texas and the United States, put in place a law prohibiting drivers from texting while driving. However, on June 17, 2011, after passing in the legislature, Governor Rick Perry vetoed Texas House Bill 242. If this bill would have passed, Texas drivers would have faced up to a $200 fine and 30 days in jail. Governor Perry issued a statement agreeing that “texting while driving is reckless and irresponsible” but noting that his reason for denying the bill was because it was an “effort to micromanage the behavior of adults.” (See the full statement here.) It is already a Texas law that teens under the age of 18 are prohibited from using a cell phone while driving.

Texas state law generally takes precedence over a city ordinance such as the San Antonio’s ban on texting while driving. But, since the Governor of Texas has spoken, it remains to be seen whether the City of San Antonio will listen.

If the City of San Antonio and several surrounding cities that have followed San Antonio’s lead continue to ban texting while driving, will the officers who make stops be allowed to search the contents of the driver’s cell phone? It is obvious that keeping the roads safe from distracted drivers is good policy, but, what about the not so obvious consequences that will ensue from this law? Consequences such as unreasonable searches of your cell phone that implicate Fourth Amendment rights.

Take for example the following scenario: An officer believes he sees a driver texting. The officer conducts a traffic stop, explains the reason for the stop and then asks to search the driver’s phone. Does the officer now have probable cause to search the driver’s cell phone? And if so, what is the scope of the search?
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