Texas Courts of Appeal
No. 01-12-01119-CR 8/19/14
Should the court have suppressed evidence that was collected without a warrant in an arson investigation conducted soon after the fire had been extinguished in a house that was used as a daycare, on a theory that the evidence was collected in a part of the house that had not suffered fire damage?
No. Three factors used by the Supreme Court to analyze the constitutionality of warrantless entry are: 1) whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; 2) whether exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy; and (3) whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity. All three factors weighed against suppression in this case because the house was used as a daycare, the investigation happened promptly after the fire had been extinguished, and the object of the investigation was to determine the cause of the fire. Read the opinion.
This case is important to Houstonians because it arose from the defendant’s actions in leaving several young children alone at her daycare center. Four of the very young children were killed by an ensuing fire, and several others were injured. Shortly thereafter, the defendant fled to Nigeria, where she was apprehended and returned to the United States. For the rest of us, this case is important because it is a good application of how and when evidence can be properly recovered without a warrant at the scene of a fire.
No. 04-1200317-CR 8/20/14
Did the State violate the Fourth Amendment by acquiring from the phone company, without a warrant, the defendant’s cell phone records that revealed information (tower-pings, outgoing and incoming communication, etc.) connecting him to a murder?
No. Fourth Amendment protections are surrendered when a person exposes activities to a third party. That exposure makes the records merely business records of the phone company and not protected communications. Read the opinion.
The defendant attempted to raise an argument under United States v. Jones, 132 S.Ct. 945 (2012), but the court made it clear that Jones did not apply because the State did not initially gather the information that the defendant sought to suppress. Rather, the defendant’s phone company gathered that information. The court’s constitutional analysis on pages 22-25 of the opinion is an excellent treatment of the pertinent caselaw from the United States Supreme Court, the Court of Criminal Appeals, and the Fifth Circuit Court of Appeals. The defendant additionally made a complaint concerning the definition of “electronic communication” for the purposes of Article 18.21 of the Code of Criminal Procedure. Because there is precious little caselaw that construes Article 18.21, this decision could turn out to be helpful to others on that basis as well.
Office of the Attorney General
Whether early termination of deferred adjudication community supervision that occurred in 1987 is still a “reportable conviction” for purposes of the duty to register as a sex offender under current chapter 62 of the Code of Criminal Procedure.
Yes. A court would likely conclude that an order issued under a previous version of article 42.12, §5(c) of the Code of Criminal Procedure, granting a defendant early termination of deferred adjudication community supervision, does not affect the deferred adjudication’s potential status as an “adjudication” subject to the sex offender registration requirements of chapter 62 of the Code of Criminal Procedure. Read the opinion.
This appears to be a good analysis of the relevant statutory law, but rely upon it with caution because there is caselaw out there (which the opinion cites) that could be applied to decide that such a status was not a “reportable adjudication.” The Legislature (or an appellate court) may want to weigh in on this at some point, but in the meantime, termination of a defendant’s deferred adjudication does not necessarily relieve the defendant of the requirement to report as a sex offender.
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