Criminal

Motions to Suppress

Miller v. State! There’s two ways we often lose motion to suppress when we think we got to great case, all the police went in yea without a warrant but they went in under the ‘emergency doctrine’. Or two; it was consensual. Miller is a good case for us on both those points and Miller the court got a report that a, the police got a report in carvel that Miller was a, it was a disturbance at Miller’s apartment so they went over knocked on the door and they heard screaming, things been thrown around so they knocked on the doors and she said,” yes please come in” Miller did! And she let him in and they over stayed their welcome let’s say. And there was video tape and it turned out to be the police downfall there. It was a video tape and they said, “Where’s your boyfriend?” and she says “he’s not here, he’s gone, I’m alone, my kids are in the bedroom, I was mad, I was throwing things around because he’s been cheating on me but nobody’s hurting me” There was no physical evidence on to that should been heard but the police didn’t want to believe that so they hung around and kept asking her and they thought they would, in order to solve that question, they thought we would run warrant check on her for some reason. And she pretty quickly first politely said, “Please leave my house!” and then she actually said, “Get outta my fucking house” and that was not explicit enough for the police; they stayed around. And the court said,” they should have got out of her when she asked them 4 times to get out of her house” So even though she consented to the entry, she revoked consent.

So if you got to consent case, remember that it’s possible for your client to revoke consent and look for that. The ‘emergency doctrine’ didn’t apply either because there they supposed emergency was that the guy was, may be the guy that had beat her up without leaving any marks with somehow in the apartment but the video tape showed guess what; the cops never looked for the guy, they sat around running her warrant. And so the court of criminal appeals said in light of that very persuasive evidence there was no emergency. They were just trying to conduct a search of her apartment so Miller won and her conviction was reversed. David talked about; David Quinn talked about ‘Duarte’. It’s a great case, if you have search warrant take a look at Duarte, it says several things generally that I think may help you. A magistrate should not be a rubber stamp, let’s remember that. So even though we know that magistrates can decide things commonsensically and not rigidly and it’s deferential to the magistrate’s decision. Duarte won and magistrates should not be common sensed and to ensure magistrates should not be rubber stamps and to ensure that they not be, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.

Two good reasonable suspicion cases! I’m going to go through these real quickly David talked about one of them; Its Abney and Lothrop. If you got to reasonably suspicion case based on a statute, a traffic stop like he said I agree 100%, “get the statute and read it; you might be surprised in both these guys won, both these people won because the statute, the police men who made the stop did not have the elements of the offense to arrest the person or to even stop them on the basis of reasonable suspicion.

Clay v. State! Telephonic search warrants are neither prohibited nor authorized in Texas by statute so the court’s going to consider them on a case by case basis. And in this case court said the telephonic warrant was Okay in Clay v. State. If you ever have this situation, cops frequently don’t like to find, don’t like to put people in custody even though they are, that way they can question them without Miranda and without electronically recording them.
Ortiz is a great case, because Ortiz decided there was custody. So if you got to a situation and you need your client in custody to argue that they were wrongfully denied Miranda take a look at the Ortiz case and keep an eye on this case; Estrada v. State. Estrada’s outta San Antonio and the interesting thing about Estrada is, we hardly ever find custody cases in which the defendant is not in handcuffs. In Estrada the defendant was not in handcuffs, now Estrada lost in the court of appeals but the court of criminal appeals has granted PDR to determine whether or not Estrada was in custody even though not in handcuffs. There are five cases, they’re in my paper I’m going to finish on time, and Betty’s going to cut me off but there are 5 good sufficiency cases. Take a look at them. Few years ago when the court over ruled factual sufficiency, it said we’re going to have to take legal sufficiency more seriously. I’m not sure I believed them but in fact they are taking legal sufficiency review more seriously at least this year in the five cases.

Francisco Hernandez

Author Francisco Hernandez

More posts by Francisco Hernandez