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January 7, 2011

Texas Courts of Appeals

$27,877.00 v. State – 2nd COA

12/23/10 : Cite No. 02-10-00035-CV


Did the Carrollton police lawfully search a residence outside their city limits but within the same county?


Yes. As a home rule municipality, the police had countywide jurisdiction so they could both obtain a search warrant and execute it within the same county. Read Opinion.


A good, if somewhat geeky, review of home-rule v. general-law municipalities and relevant peace officer jurisdiction. But the real value of this case is the description of an unusually thorough asset forfeiture investigation. Three search warrants, a recorded jail phone call and multiple dog sniffing paid off with a valid and sufficient seizure of drug proceeds. Judge Dauphinot, as she often does, dissents, and gets quite carried away in focusing way too much on the meaning of the dog sniffs. There was plenty of other corroborating evidence to show the money came from drug dealing.

State v. Smith – 3rd COA

12/23/10 : Cite No. 03-09-00537-CR (not published)


Did the trial court incorrectly exclude the State expert’s testimony on retrograde extrapolation?


No. While the State submitted data at the suppression hearing, it failed to present any expert testimony employing those facts in a retrograde extrapolation analysis. Also, a defense expert testified that retrograde extrapolation could not be reliably performed on this record. Read Opinion.


A bit baffling. The court of appeals notes that the State, in what apparently was a strategic decision, declined to present any testimony. The court of appeals also politely points out that the Defendant did present expert testimony supporting exclusion. And, in a somewhat sheepish tone, the court of appeals points out the obvious conclusion that the trial court, faced with such a record, had no choice but to exclude the evidence. Perhaps next time the State will get in the game. (By the way, there is a serious question as to whether a pretrial hearing, when not focused on a search, seizure or confession issue, is the appropriate mechanism for testing the admissibility of evidence. Kind of seems like a trial before the trial.)

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