United States Supreme Court
No. 12-7822 2/25/14
If a person objects to police making a warrantless search of his residence, and police physically remove him from the residence, can the police make a warrantless search with the consent of the remaining co-occupant?
Yes. Under Georgia v. Randolph, a person’s objection to a search of a residence is not effective unless he is physically present. As soon as he is removed, his objection is also removed. Read the opinion.
Concurrence (Thomas, J.):
This case was rightly decided under Randolph, but Randolph itself was wrongly decided. A warrantless search of a residence should be valid under the Fourth Amendment whenever any resident gives consent, because co-occupants assume the risk that a roommate might permit a search.
Concurrence (Scalia, J.):
Although this is a correct application of the wrongly decided Randolph, the case would have been more difficult if it had been established that property law does not give a co-tenant the right to admit visitors over another co-tenant’s objection.
Dissent (Ginsburg, J.):
The Randolph decision did not allow police to get around the clearly stated objection of an occupant by simply removing the occupant by force or waiting for him to slip out of the residence momentarily, but Fernandez does just that.
The CCA’s decision in State v. Copeland, 399 S.W.3d 159 (Tex. Crim. App. 2013) (holding that driver’s consent to search was valid even when a co-owner passenger objected) just became much stronger now that the Supreme Court has limited Georgia v. Randolph to its facts in this case. Justice Scalia’s concurrence continues to nurture the property-rights theory of search law. This case will probably be on this semester’s criminal procedure final exam—study up!
Texas Courts of Appeals
No. 14-13-00039-CR 3/5/14
If a defendant is serving a felony prison sentence and attempts to escape, can the State use the felony conviction that put the defendant in prison to enhance the escape charge?
No. The use of a prior conviction to prove an essential element of an offense bars the subsequent use of that prior conviction in the same indictment for enhancement purposes. Read the opinion.
This case might be a good opportunity to file a PDR arguing that Wisdom v. State, 708 S.W.2d 840 (Tex. Crim. App. 1986) and similar cases be overruled. The legislature has specifically stated in other statutes when a prior conviction may not be used both to increase the degree of offense and enhance a sentence. See, e.g., Tex. Penal Code § 49.09(g). But the recidivist statutes look only to whether a defendant has been convicted prior to committing the offense on trial in order to deter repeated criminal conduct. Moreover, prior convictions are not properly considered elements of offenses even when you have to prove a prior conviction. Ex parte Carner, 364 S.W.3d 896 (Tex. Crim. App. 2012); State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998).
No. 11-12-00049-CR 3/4/14
Can a sex offender be charged with failing to update his residence based on evidence that he is rarely, if ever, present at the registered residence?
No. A frequent and prolonged absence from the registered residence does not establish that a person has changed his residence to another location. Read the opinion.
Wait, so a registered sex offender need only register his address at an uninhabitable building somewhere and then work as a trucker in order to avoid the registration requirement that he maintain what the rest of us would deem a residence? This decision is troubling.
When the State gave the defense its notice of enhancement the day before trial, was the court required to deny the enhancement based on defense theories of surprise and timeliness?
No. Notice given at the beginning of the punishment phase satisfies the due process concerns regarding timeliness, and any continuance must be requested on grounds that the defense needs the time to prepare a defense. Read the opinion.
A sharper defense lawyer could have made a better showing of how he was surprised and prejudiced by the late notice of enhancement. A prosecutor is better served by giving the notice well in advance of trial—if a trial court agrees your notice is untimely, you might end up having to try your case without the enhancement.
Did the 72 hours the defendant spent in jail following his second arrest for DWI count toward the 72 continuous hours of jail time required as a condition of probation?
No. Any jail time served between arrest and sentencing has to be credited toward any additional jail time a sentence imposes, but a condition of probation is not a sentence. Therefore, defendants are not entitled to a credit toward community supervision confinement when they spend time in jail after arrest. Read the opinion.
This was well-settled law. The Court gives you all the information you need if someone else fusses about this in future.
No. 06-13-00128-CR 3/5/14
Even though the outcry statute (CCP Art. 38.072) refers to “a child younger than 14 years of age,” can a 14-year old make an outcry?
Yes. The child’s age at the time of the offense, rather than at the time of the outcry, is the relevant measure. The outcry statute applies if the victim is younger than the statutory age when the crime was committed and if the outcry is made before the victim turns 18. Read the opinion.
The Court noted that several other courts of appeals had reached the same conclusion and declined to overrule its prior precedent on point.
Office of the Attorney General
When should district courts begin collecting the new fees for electronic filing mandated by Government Code §51.851?
The fees mandated by that section apply to those that become payable on or after September 1, 2013. Read the opinion.
Are justice courts still authorized to charge a fee for filing a petition to apply for an occupational driver’s license after changes made by HB 438 in the 2013 legislative session?
Yes. HB 438 does not eliminate a court’s authority to charge a fee for filing a petition to apply for an occupational driver’s license. Read the opinion.
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