Weekly Case Summaries: January 23, 2009

The United States Supreme Court

Herring v. United States

1/14/09 : Docket No. 07-513 : Exclusionary Rule

Issue

Should evidence obtained by police during what they believed to be a lawful search be thrown out if, in fact, the search was illegal due to a computer error, not a reckless disregard of Fourth Amendment requirements?

Holding

No; the evidence may be used. The exclusionary rule does not apply when police errors leading to an unlawful search are the result of isolated negligence attenuated from the search rather than systemic error or reckless disregard of the constitutional requirements.
Read opinion.

Dissents

Justice Ginsburg wrote in her dissent that recordkeeping errors by law enforcement threaten individual liberty and are susceptible to deterrence by the exclusionary rule. They cannot effectively be remedied by any other means. Those errors do not present a reason to further erode the exclusionary rule.

Justice Breyer also dissented, writing that while in agreement with Justice Ginsburg, he noted an additional supporting factor in Arizona v. Evans, 514 U.S. 1 (1995). There, the Court held that recordkeeping errors made by a court clerk did not trigger the exclusionary rule, so long as the police reasonably relied upon the court clerk's recordkeeping. The rationale for that decision was based on a distinction between judicial errors and police errors, and the Court gave several reasons for recognizing that distinction.

Commentary

This was a 5-4 opinion with the usual lineup of conservatives v. liberals, switch-hitting Kennedy being a conservative on this one. Meanwhile, Texas adopted this exception to the exclusionary rule, even as interpreted under article 38.23, CCP, some time ago. Innocent mistakes and good faith decisions shouldn't result in the exclusion of relevant evidence of guilt. Looks for the SCOTUS to find other exceptions as time goes by.

Oregon v. Ice

1/14/09 : Docket No. 07-901 : Sentencing

Issue

May a judge order a defendant convicted of multiple crimes to serve sentences consecutively, rather than concurrently?

Holding

Yes. The Sixth Amendment does not ban the states from assigning judges, rather than juries, to find the facts necessary to impose consecutive, rather than concurrent, sentences for multiple offenses.
Read opinion.

Dissent

Justice Scalia wrote to question why the Court would attempt to distinguish Oregon's sentencing scheme by reasoning that Apprendi applies only to the length of a sentence for an individual crime and not to the total sentence for a defendant. The Court held in Booker that a jury must find the existence of any particular fact that the law makes essential to a defendant's punishment. That rule leaves no room for a distinction between facts bearing on the number of years that a defendant will serve for one count (under Apprendi) and facts bearing on how many years will be served in total (now ignoring Apprendi).

Commentary

Who knew prosecutors would be cheering a Ginsburg opinion? This was also a 5-4 opinion but with a very different lineup than in Herring. More like the common-law judges v. the originalists. The outcome is a huge save for Texas, as it would have been a nightmare (and the first time the Apprendi decision changed Texas sentencing law) to require juries to decide if multiple sentences would be served concurrently or consecutively. What discrete facts would they even be deciding to make that decision?

Texas Courts of Appeal

Bracken v. State - 2nd COA

1/15/09 : Cite No. 2-06-361-CR : Motion to Suppress

Issue

Did the trial court incorrectly deny the defendant's pre-trial motion to suppress, alleging a lack of reasonable suspicion to initiate the traffic stop that led to the defendant's arrest for DWI?

Holding

No. The arresting officer's testimony included his observations, under the requirements of Transportation Code §545.051 (Driving on Right Side of Roadway), that the defendant had crossed over the center line by half a vehicle width, crossed the fog line, and weaved back and forth within his lane over the distance of several miles. The defendant did not meet any exclusions under §545.051.
Read opinion.

Dissent

Justice Dauphinot dissented, writing that the majority has established a double standard for rulings on motions to suppress. Further, the majority did not address the deference granted to a trial court's implicit findings when objective, physical evidence is in conflict with officer testimony on which those findings are based.

Commentary

Judge Dauphinot, in dissent, proposes that a judge must enter an actual order denying a motion to suppress to give an appellate court jurisdiction to hear an appeal of that decision. That would be news to the rest of us. The majority, in a footnote, properly explains the difference between a written order GRANTING a motion to suppress, and a ruling (oral or written) DENYING a motion to suppress. Judge Dauphinot frequently has a slightly different view of the criminal justice world than her peers.

Birkholz v. State - 4th COA

1/14/09 : Cite No. 04-06-00251-CR thru 04-06-00253-CR : Motion to Reopen

Issue

Did the trial court incorrectly deny the defendant's motion to reopen after the defendant claimed surprise over State-introduced photographic evidence which caused the defense to re-examine the defendant's place as driver or passenger in an intoxication manslaughter trial?

Holding

Yes. The defendant made the motion to reopen in a timely fashion and had the evidence in hand at the time the motion was made. The trial court was clearly informed that the defendant's evidence would show an increased likelihood that the jury would accept his argument that he was not the driver.
Read opinion.

Commentary

Defendant got 10 years probation for killing three people. You would think he would get on his knees and thank his lucky stars, skipping an appeal. After all, he can't do any better on punishment at retrial, and could end up with stacked prison sentences. Be careful what you ask for.

Byrd v. State  - 4th COA

1/14/09 : Cite No. 04-08-00226-CR : Ownership of Stolen Property

Issue

In a retail theft prosecution, must the state's evidence of ownership include proof of the name of an owner where it has already proven the existence of an owner?

Holding

No. Presenting evidence that a store is the owner of stolen merchandise is sufficient. The State is not required to allege and prove an individual, such as a store manager, as the "owner" because the property owner's name is not a substantive element of the theft statute.
Read opinion.

Dissent

Justice Simmons disagreed with majority's conclusion that proof of the store manager's ownership was neither a substantive nor an essential element of theft. The indictment and the jury charge named the manager as the owner of the stolen property and all of the parties agreed that a variance existed between the jury charge identifying the named store manager as the owner and the proof at trial which failed to identify that manager or his connection to the stolen merchandise.
Read dissent.

Commentary

Judge Hilbig, a former Bexar County DA who undoubtedly knows about the complexities of ownership issues in shoplifting cases, presents a compelling extension of the recent case law regarding material v. nonmaterial variances in sufficiency of evidence reviews. However, the dissent points out the potential for abuse of the application of this review to ownership issues and the absurdities that might arise from such a relaxation of the law. This looks ripe for PDR. Meanwhile, how about just alleging the person who caught the thief as the owner ("greater right to possession"), unless you intend to call the manager to testify?

Hubert v. State - 13th COA

1/15/09 : Cite No. 13-08-00093-CR : Actual Authority to Consent to Search

Issue

Did the trial court improperly deny the defendant's motion to suppress, finding that the alleged co-owner of the home had actual authority to consent to searching the defendant's bedroom?

Holding

Yes. Testimony showed that the defendant co-owned the home with his grandfather, the defendant's bedroom door was always closed, and the grandfather did not sleep in that bedroom nor have a reason to go into it. The grandfather's apparent authority over his grandson's bedroom was ambiguous at best, and a reasonable person in the officer's place would have inquired further. Therefore, the State was unable to present a reasonable basis on which the evidence was obtained.
Read opinion.

Commentary

The deputy constable should have called a prosecutor before searching the house. He would have been told to (1) get consent from the defendant or (2) take the time to go get a search warrant. It is possible that the officer acted in good faith in thinking that he had appropriate authority from the owner, but the hearing doesn't seem to bear that out. Third party consent in homes is a tricky business.

Texas Attorney General Opinions

Opinion No. GA-0690 : Police Authority Through Interlocal Agreements

Issue

Do peace officers employed by the Texarkana (Arkansas) Police Department have powers in the state of Texas outside the territorial limits of the City of Texarkana, Texas? If so, how far do those powers extend? Do peace officers employed by the Texarkana (Arkansas) Police Department have legal authority to use deadly force in the state of Texas while deployed as a part of the Texarkana Metro SWAT Team?

Opinion

Yes. The jurisdiction of peace officers of the Texarkana (Arkansas) Police Department extends to the municipal limits of Texarkana, Texas, but not beyond. Code of Criminal Procedure art. 2.124(b) grants limited powers to officers from an adjoining state while in Texas in circumstances where the municipal limits of a municipality are within one mile of the boundary Texas and the adjoining state. In addition, the Code also grants the adjoining state's officers the same powers, duties and immunities as a Texas officer who is discharging an official duty. Therefore, while in this state, the Arkansas officers have the same authority to use deadly force as a Texas officer.
Read opinion.

Opinion No. GA-0691 : Authority of Judges to Allow Probationer Travel and Relocation

Issue

Does Code of Criminal Procedure art. 42.12 authorize judges to allow probationers to travel or relocate outside of the state? Must other states recognize the full scope of judicial immunity granted by Texas to judges in circumstances where those judges may be sued for allowing a probationer to travel or relocate outside of the state?

Opinion

Yes. The Legislature has authorized judges to determine the conditions of community supervision, including where a probationer may live and/or travel. This provision gives judges broad discretion to issue orders permitting probationers to travel or relocate outside the state. Under the common law, judges are not liable via civil claims for their judicial acts. It is likely, but not certain, that courts of other states would recognize the full scope of judicial immunity granted to Texas judges.
Read opinion.

Opinion No. GA-0693 : Rights-of-Way

Issue

Does a commissioners court have authority to remove structures (in this case, over-sized mailboxes) on private property that protrude into a county right-of-way and become safety hazards?

Opinion

Yes. Transportation Code §251.016 gives general control over all roads, highways, and bridges in the county to a commissioners court. The court may remove or order the removal of objects in the county road right-of-way that create a safety hazard to the public. Generally, when a road is established by prescription or dedication, the right is not limited to the area traveled but includes sufficient land, where reasonably available, for drainage ditches, repairs, and the convenience of the traveling public.
Read opinion.

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