Saturday, December 29, 2012

Rare pro-Fourth Amendment ruling from Texas Court of Criminal Appeals

The SA Express News reported recently on a rare, pro-Fourth Amendment decision from the Texas Court of Criminal Appeals ("Ruling on Kerr drug case holds Fourth Amendment implications," Dec. 18). The story opened:
Christina Miller invited deputies into her home May 8, 2008, to investigate a report of domestic violence and — after they refused her subsequent requests to leave — was arrested when the officers found drugs there.

The trial court and 4th Court of Appeals rejected her argument that the evidence against her was the fruit of an illegal search, but the Court of Criminal Appeals has reversed those rulings.

The court held that Kerr County deputies — who remained in the home as they conducted a warrant check on Miller — had no authority to stay after concluding the violence report was unfounded. Last month, it granted her motion to suppress the evidence and sent the case back to district court.
Reporter Zeke MacCormack summarized, "The central legal issue is whether officers, having completed any investigation required, can remain inside a residence despite being asked to leave. No, ruled the court — deputies should have left and performed the warrant check outside."

The CCA overruled the trial and appellate courts primarily because of police testilying, with the majority opinion declaring that "videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony." If the officers had been truthful, their reasons for staying on the premises would have been justified, but video provided "indisputable visual evidence" to the contrary, held the court.

This will likely affect procedures at many if not most Texas departments. At a suppression hearing, the detective involved declared that, "It it pretty standard for us to, when we're in contact with someone, await until we get the warrant check before we break contact with them." Such "standard" protocols now must change or risk evidence being thrown out in yet more criminal cases.

Here's the opinion, written by Judge Johnson, and here's a dissent from Judge Keller, joined by Judge Hervey.


  1. This will likely affect procedures at many if not most Texas departments.

    I doubt that. They'll just continue to be sure no videotape exists to contradict their "testilying"...

  2. I like it,but I wouldn't have expected it.

  3. Okay, we have videotape evidence that shows these officer committed perjury, which I believe is still a crime. Will they be prosecuted?

    If the answer is no, then the system truly has no credibility anymore (if it ever did).

    1. I have a question for you. How come citizens who file complaints, with sworn affidavits, against police and are later found to be lying aren't prosecuted either? I'm by no means saying it's ok for police to lie, but why single them out?

  4. 11:20 here again - Furthermore, if the justices on the CCA do not insist that these officers are proscuted, they should face disciplinary action. I don't know what specific judicial ethical standard is violated, but if they determine that a crime has been committed, a crime against the criminal justice system itself, a crime that is a direct attack on the integrity of the criminal justice system, and they fail to act, they have surely turned their backs on their duty to see that justice is done.

    Of course, we know that the judicial conduct commission is worthless - so .............

    I'm sorry, yes we should applaud the CCA's decision in this case, but if they sit idly by and allow perjury like this, well....

  5. To be fair, 11:24, it's not like the judges on the CCA can initiate prosecutions. They don't have that power.

  6. 11104 lAdomitGreat. As it's currently interpreted, the Fourth Amendment permits the cops to get away with absolutely anything...unless, as in this case, somebody's got the video.

    These rulings, rare and special as they are, are precious and cute. However, as anyone who's spent a lot of time observing trials understands, cops/agents routinely fib, dissemble, color/stretch the truth or outright lie their asses off on the stand. No video, no Fourth Amendment.

  7. Why does the Protection of a Constitutional Right have to be RARE event by the Courts?

  8. Law Enforcement Unions of all stripes
    contribute to elections of local DA'S, Sheriffs,etc, and until you get them out of the process, there will never be a real punishment. They have a lock on the system, it's a Lawyer/LEO Mafia.....

  9. "To be fair, 11:24, it's not like the judges on the CCA can initiate prosecutions. They don't have that power."

    I understand your point Grist, but I don't think we should be so quick to give them a pass. While they may not have the power to initiate the prosecution, they certainly could make a referall to the DA and/or the AG's office. That would put the ball in the prosecutor's hands to ignore it or do something. Even if they lack the statutory power to initiate something, I think they have an ethical obligation to at least refer it to someone who can. If the men who sit on the highest criminal court in the state cannot do anything about a crime that undermines the integrity of the system...

  10. Another thing the CCA could do is order the district judge to consider a court of inquiry.

  11. Try again grits. The judges certainly have the power and authority to order anyone arrested for contempt of court and i'm sure almsot anyone not a cop would consider lieing like a rug to a judge would qualify!

    as for this case. Pity the judges choked in the clinch. This entire case should have been dropped and the state bared from any further action against this women.

    They should be glad they are not working in florida. Here armed tresspasers can and are SHOT! Sorry once told to get out. They became trespasers and subject to the same punishment.

    For some reason we don't have much trouble with this type of thing!

    Go figure!

  12. LOL just read the article. Seems the court agrees with me!

    "The Court of Criminal Appeals had the benefit of police audio tapes of the encounter, which lasted only six minutes. It rejected Maguire's argument that by staying, the deputies had turned themselves into criminal trespassers."

    Notice that last part "CRIMINAL TRESPASSERS"

    in florida armed criminal tresspass can get you shot!

  13. Who is singling out police, 10:42? Not only were they not singled out, nothing at all happened to the officer in question. In fact, the DA put on his testimony even having seen the contradictory video and defended it in the appellate courts. Far from being singled out for perjury charges, he's not even getting a slap on the wrist.

    By contrast, women who report domestic violence are frequently threatened with charges for making a false report if they later retract the allegations, so if there's any double standard, it entirely favors the cops. As an academic paper on domestic violence recantations out of the South Texas College of Law put it a couple of years ago:

    "Prosecutors must walk a thin line between encouraging a victim to proceed truthfully and making a victim feel coerced. Encouragement to testify truthfully may come in the form of a veiled threat or can be even more direct. As one prosecutor explained, 'I would have no problem putting a victim in jail because she refused to cooperate.'” FAR fewer prosecutors would say the same about police testilying, especially when it was done to benefit their own cases, as in this instance.

  14. Damn ... did anyone read that dissenting opinion? A judge who talks about things like "defendant-favored gloss on the evidence and the trial court’s findings"???

  15. The CCA can't initiate prosecutions but here is a recent case where they found that a Citizen had been untruthful in an Application for Writ of Habeas Corpus and referred the matter to the local prosecutor.

    From a story in the Lubbock Avalanche Journal:

    A prison inmate from Scurry County, who is serving one sentence with two more ahead of him, may have gotten himself in more trouble with the state’s highest court for lying in an appeal motion.

    The Texas Court of Criminal Appeals on Wednesday rejected Michael Wayne Gaither’s application for a writ of habeas corpus and, noting what trial Judge Ernie Armstrong had identified as perjured statements, sent a copy of the ruling to the appropriate prosecutor with a suggestion to “take such action as he may deem appropriate.”

    Judge Cathy Cochran wrote for the court: “The act of filing a perjurious application is an affront not just to this court, but to the criminal justice system generally, as well as to all citizens — especially those inmates with potentially meritorious habeas claims.”

  16. Thanks for the post DLW - confirmation of a double standard.