Weekly Case Summaries: January 20, 2012

5th Circuit Court of Appeals

Ochoa v. United States

No. 10-51238 : 01/13/12

Issue:

Should messages obtained from the search of a cell phone seized after the arrest of a driver have been suppressed?

Holding: 

No; because the cell phone would have been inevitably discovered when officers later conducted a routine inventory search of the vehicle, suppression was not required. “The inevitable discovery doctrine applies if the Government demonstrates by a preponderance of the evidence that (1) there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct, and (2) the Government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation.” Unfortunately, the doctrine has yet to be accepted under Texas law.
Read Opinion

Commentary:

The appellate court takes the easy route of accepting the inevitable discovery argument. But there surely was probable cause to believe in this case that the cell phone contained evidence of the crime being investigated. After all, the set up for the delivery involved cell phone calls from the co-conspirator to the defendant. Still, it would be nice to have a solid published case say that the warrant requirement is excused for cell phone searches. At some point, someone, somewhere is going to have to explain that the ephemeral quality of electronic information on a cell phone and the potential loss of leads from that evidence requires immediate warrantless investigation. What privacy right is protected when an officer has arrested the defendant and seized his cell phone and already has good reason to believe that an incoming call might well be connected to an ongoing or recent drug deal? Final note: Texas needs to adopt the inevitable discovery doctrine, but that will likely take a statutory amendment to article 38.23, CCP.

Texas Court of Appeals

Black v. State – 2nd COA

No. 02-10-00283-CR : 1/12/12 

Issue: 

Were text messages obtained by way of a search warrant from a cell phone seized during a search incident to arrest admissible?

Holding: 

No, the messages were out-of-court statements offered for the truth of the matter asserted so they were hearsay; the messages were not computer-generated data; and there was no showing either that defendant wrote or ratified any of the messages or that the messages were written while the cell phone was in defendant’s possession. Therefore, the messages did not qualify as statements that he made against his penal interest.
Read Opinion

Commentary:

The defendant and the appellate court confuse the issues of an illegal search with the predicate for admission of a particular item of evidence. The cell phone was properly seized incident to an arrest and only examined after a search warrant was obtained. Mixed into a grab bag of complaints is the objection that admission of the texting contents of the cell phone violated the hearsay rule. What the court really seems to focus upon is the absence of sufficient evidence to authenticate the text messages as being generated or received by the defendant. Of course, an obvious inference could be drawn that the defendant, having had the cell phone in his pocket, well knew what was on it and adopted those statements as an admission of a party opponent. Seems that a jury could have drawn that fair inference. Nonetheless, this appellate court says there wasn’t enough authenticating evidence and then says it was harmless. Given all the mixing of legal theories, this case is not likely to be cited for much, but it does show how a prosecutor, defense attorney and judge needs to clearly understand the difference between a pretrial motion to suppress and a mid-trial objection to the admission of evidence based on a Rule of Evidence. 

In the matter of the expunction of R.B. – 8th COA

No. 08-10-00165-CV : 1/11/12

Issue: 

Did a defendant, who signed a waiver of his right to an expunction at the time of his pre-trial diversion agreement, waive his statutory right to obtain an expunction only under the current version of Article 55.01 and not under any future amendments?

Holding: 

No; because he could have obtained an expunction at the time of his waiver, he waived his right to an expunction under the amendments also. 
Read Opinion 

Commentary:

So, I guess the waiver should say, “I agree to waive the right to expunction, regardless how the law ever changes.” Seriously, a waiver is a waiver. Good to see the court of appeals didn’t take the bait.

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