DWI Law- Illegal Search Warrant Suppresses Blood Draw Says Texas

In Crider v. State of Texas, --- S.W.3d ----, 2011 WL 5554806 (Tex.Crim.App.) the defendant appealed the denial of his motion to suppress the search warrant. He claimed that the warrant failed to establish that the warrant was "timely" and not "stale". The appellate court agreed, holding that:

"[T]he affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood."

In discussing the requirements for a search warrant, the court pointed to the law governing timeliness for the search warrant, otherwise referred to as the 'staleness doctrine":

"Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical considerations of every day life. The test is one of common sense." 

"Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.FN8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” FN9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.” 

Applying the above, the court then determined the likelihood that alcohol would still be found using a scientific analysis:

"Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of 0.08 drop to zero.

The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person's blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level of alcohol would still be in his blood up to seven to eight hours later.FN14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectible level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)

The court also held that it must use the most extreme time periods when applying the stalenss doctrine:

"United States v. Button, 653 F.2d 319, 324–25 (8th Cir .1981) This case gave rise to the so-called “ Button Rule” of staleness:

"Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January.” 

Based upon all of the above, the appellate court held that the search warrant was defective, and remanded the case with directions.

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OWI Law - Illegal Entry Through Open Door Forces DUI Dismissal

In State of Iowa v. Dierks, Slip Copy, 2011 WL 6076538 (Table) (Iowa App.), a concerned citizen reported a possible drunk driver. While following that person, the alleged DUI driver pulled into a business garage, parked with the garage overhead open, and entered into a business. The 'business' door was open, but a screen door was closed. The entrance did not appear to be one that would be used by the public at large. The police officer knocked and no one responded. The cop found the driver urinating in the restroom, and asked him to step outside. Once outside, the cop developed probable cause to arrest.

On appeal, the defendant alleged that entry was illegal. The Iowa court wrote:

The determination of whether Dierks “has a legitimate expectation of privacy concerning a specific area is made on a case-by-case basis, considering the unique facts of each situation.” See id. at 563 (quoting State v. Legg, 633 N.W .2d 763, 767 (Iowa 2001)). In resolving this issue, we do not ask “whether the individual has chosen to conceal some private activity but whether the government's intrusion infringes upon the personal and societal values protected by” the constitution. Id. (quoting State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998)).

“Although each case is unique,” we have differentiated business activity in a home. See id. (stating a guest in a home does not have a legitimate expectation of privacy if the guest is “on the premises merely to conduct a business transaction”). Additionally, “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967).

Courts have also concluded that “[a]n open gate invites entry.” United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001) (holding no constitutional violation when police entered an open business to ask the owner's permission to conduct a search). In United States v. Sandoval–Vasquez, 435 F.3d 739, 742–44 (7th Cir.2006), the officers in that case entered an open business around 4:30 p.m. by walking through the garage and a pedestrian entrance. The court noted the fact the business “may have been in the process of closing” did not make the entry unconstitutional, and distinguished an earlier case in which the officers unconstitutionally entered “a business they knew was closed.” Id . at 743.

"Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar, 268 F.3d at 532; see also Sandoval–Vasquez, 435 F.3d at 742–44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.


As to the State's claim of exigent circumstances, the court responded:

"The absence of hot pursuit requires us to carefully examine the claim of destruction of evidence. Id. at 566. There was no evidence Dierks knew Quandt was looking for him. There was no evidence Quandt suspected Dierks was engaged in any purposeful activity within the business premises that would destroy the integrity of any future chemical tests. Dierks's opportunity to flee by vehicle was denied, as Quandt blocked Dierks's car in the garage with his patrol car. There was no evidence concerning any efforts by police to seek a warrant or to determine the amount of time it would take to secure a warrant. Like the situation presented in Lovig, the facts here do not support a finding of exigent circumstances. See id. at 566–67. We therefore do not believe Quandt was entitled to enter through the rear door without a warrant or consent."

Therefore, the court reversed the defendant's conviction with directions to suppress.
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Florida Illegally Searches Grow House for Cannabis

The following case comes to DAD thanks to the watchful eyes of Florida attorney Michael Kessler. Many of the Collegemembers also handle other criminal or drug-related cases, so DAD thought this might be helpful there. It involves a motion to suppress a search warrant for grow house search, based upon a confidential informant's information.In Mesa v. State, --- So.3d ----, 2011 WL 6373006 (Fla.App. 4 Dist.) As Michael describes the holding:

The trial court erred in denying a motion to suppress where:

CI had no direct knowledge that defendant grew marijuana (rather the CI had direct knowledge than a neighboring house grew marijuana); 

CI claimed that the neighbor who grew marijuana frequently used the defendant’s pickup truck and made frequent stops at defendant’s house; 

Affiant gave no particulars to explain his claim that FPL records for defendant’s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood” when compared to other homes of the same size and in the immediate area; and

Surveillance of defendant’s house revealed a wood fence around the outside air conditioning unit, and there were no facts indicating that the air conditioning unit was oversized or commercial grade.

The appellate court also found that the good-faith exception did not apply:

"We also do not agree that the good faith exception applies in this instance. Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official's belief in its existence entirely unreasonable,” the good faith exception is not applicable. Dyess v. State, 988 So.2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So.2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So.3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So.2d at 330."

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DUI Appeal - Florida Drug Dog Sniff Not Reliable For Search

This is a non-DUI case, but since many DUI cases also involve drugs, DAD thought it might be of some value to the readers. In Wiggs v. State of Florida, --- So.3d ----, 2011 WL 3300139 (Fla.App. 2 Dist.) the defendant appealed his conviction for cocaine possession, alleging that the drug dog's sniff and alert did not establish probable cause to allow for a warrantless search of his vehicle. The appeals court agreed that the drug dog (whose name is Zuul) alert was insufficent to establish probable cause to search the vehicle, and reversed. The facts at the motion to suppress were as follows:
Just before midnight on August 14, 2007, a Sarasota County deputy stopped Wiggs' vehicle for running a red light on U.S. 301. The deputy detained Wiggs in order to prepare a warning citation. During the detention, a drug-detection dog named Zuul alerted to Wiggs' vehicle. A search of the vehicle revealed the cocaine that forms the basis for the charge in this case.

Wiggs filed a motion to suppress the cocaine in which he argued that Zuul's alert did not provide probable cause to search his vehicle. Wiggs challenged Zuul's reliability and cited evidence of numerous “false alerts” by the dog in the field. At the hearing on Wiggs' motion to suppress, the State presented testimony and documents regarding Zuul's training and field record.

Deputy Indico and Zuul had been summoned to seventeen vehicle stops between May and August of 2007. Ten of these encounters resulted in Zuul alerting on the vehicle with no discovery of drugs. Four post-alert vehicle searches, including Wiggs', resulted in the discovery of drugs. And three encounters ended with no alert.

Deputy Indico and Zuul completed an eighty-hour narcotics training course offered by the Sarasota Sheriff's Office as well as a 400–hour patrol course. In addition, Deputy Indico and Zuul were certified by the Florida Department of Law Enforcement (FDLE) and National Police Canine Association (NPCA). Deputy Indico and Zuul's training and certification process was completed on April 27, 2007.

Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul's body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriff's trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.

To obtain NPCA certification Deputy Indico and Zuul had to meet specific NPCA training standards, which were admitted in evidence, and achieve 75 percent accuracy. The pair had to find narcotics in two out of four vehicles and from two out of three rooms within a building. The FDLE certification was for apprehension, tracking, and building searches but did not include any narcotics detection training.

After graduation Zuul and Deputy Indico continued to train on a weekly basis. They have been certified every year by the requirements set forth from the NPCA training standards. Deputy Indico kept monthly training and scent detection logs which the State introduced in evidence. The logs covered Zuul's initial training in February 2007 as well as his weekly training up until Wiggs' stop on August 14, 2007.

Deputy Indico also kept a monthly report of Zuul's field activity from April 2007 until August 2007, which the State introduced in evidence. On the positive vehicle alerts that did not result in a drug find, or unverified alerts, Deputy Indico documented any history the vehicle or its passengers had with drugs. Deputy Indico acknowledged that Zuul had not been trained to refrain from alerting to residual odors. Thus, it was important for Deputy Indico to document the history of the driver and vehicle on unverified alerts. Deputy Indico explained that he obtained the histories by interviewing the driver or passengers. If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert. Deputy Indico did not document the details of the alleged drug histories.

Deputy Indico began using Zuul to search for narcotics during vehicle stops on May 14, 2007. During the first stop Zuul alerted and a marijuana pipe was discovered. The next day, May 15, Zuul alerted on another vehicle, but nothing was found. Deputy Indico documented that the passenger admitted using cocaine at some time before the stop. On May 17, 2007, Zuul alerted to a vehicle, but no narcotics were found. The deputy documented that the vehicle had a “narcotics history.” Similarly, Zuul alerted on May 18, 2007, and nothing was found, but the driver admitted to smoking marijuana. On June 2 and 9 Zuul sniffed vehicles for drugs but did not alert.

The appeals court discussed the state of drug dog alerts under Florida law and wrote:

"The [Florida Supreme] court explained that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” Id. at S166–67. The court reasoned that the certification and training of drug-detection dogs was not subject to a uniform statewide or nationwide standard. Id. at S167. Additionally, the fact of the dog's training and certification did not account for the possibility of false alerts, handler error, and alerts to residual odors. Finally, allowing the fact that a dog has been trained and certified to provide a prima facie case of probable cause would improperly place on the defendant the burden of production of evidence solely within the control of law enforcement. Id.

Thus, the supreme court adopted a “totality of the circumstances approach” that places the burden of producing evidence to establish the dog's reliability on the State. Id. at S168.

The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability."

In concluding that this particular dog did not establish sufficient p.c. to search, the court stated:

"Here, the State presented evidence of Deputy Indico and Zuul's national training and certification which included the NPCA training standards that were met. The State established that Zuul had to be at least 75 percent accurate in his certification training and never alerted on any blank vehicles during training. Through Deputy Indico, the State provided details regarding Zuul's police training, including discussion of the various environments and distractions.

The State also produced Zuul's field performance records. However, the dog's field performance records were problematic. Zuul had conducted seventeen vehicle sniffs in the field and alerted fourteen times. Drugs were only found after four of those fourteen alerts. Based solely on the number of sniffs in which Zuul's alerts uncovered narcotics, Zuul's field accuracy rate is four out of fourteen, or approximately 29 percent. This accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert."

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DUI Appeal of the Day (DAD)- Pretextual Inventory Search Causes Suppression

This case involves a search of a vehicle. In US v. Taylor, --- F.3d ----, 2011 WL 561979 (C.A.8 (Mo.)) Officer Gillespie and her partner responded to a request by a fellow officer to follow a truck and initiate a traffic stop if the driver, who officers later identified as Taylor, committed a traffic violation. Officer Gillespie was informed that Taylor was suspected of involvement in a narcotics transaction and that the narcotics were believed to be in his vehicle. Officer Gillespie observed Taylor fail to signal before changing lanes, and she initiated a traffic stop. When Taylor could not produce a valid insurance card, she arrested him and took him into custody.


Police towing policy dictated that when an individual is arrested for a traffic violation, the officer should give the individual the option to release the vehicle to another driver, allow the vehicle to be left at the scene, or drive the vehicle to the police station. Officer Gillespie did not provide Taylor with these options, however, because of another KCPD policy requiring the impoundment of a vehicle “when the vehicle is known or believed to have been used in the commission of a crime and has evidentiary value.” Based on this policy, Officer Gillespie decided to tow and search the vehicle.



Regardless of under what portion of the policy an impoundment occurs, KCPD policy further requires officers to complete a tow-in report when a vehicle is being towed. The tow-in report must include a “content inventory,” which is a “detailed inventory and listing of items located inside of the vehicle being towed.” When a towed vehicle contains “valuable property in large quantities,” officers must nevertheless generate a detailed inventory, using an additional form if more space is needed to list the contents of the vehicle. Upon searching Taylor's vehicle, Officer Gillespie discovered hundreds of tools, several pieces of equipment, as well as a plastic bag containing approximately 74 grams of powder cocaine, clothing, toiletries, and paper. In completing the tow-in report, Officer Gillespie did not itemize or list the hundreds of tools, but wrote “misc. tools” in the relevant section of the form.

On appeal, the court found that the inventory search was pretextual, especially in light of the officer's failure to specifically itemize all of the contents in the vehicle. It suppressed the evidence. The appeals court noted that:

The search of a vehicle to inventory its contents must nevertheless be reasonable under the totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir.2007), and may not be “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). The reasonableness requirement is met when an inventory search is conducted according to standardized police procedures, which generally “remove the inference that the police have used inventory searches as ‘a purposeful and general means of discovering evidence of a crime.’ “ Marshall, 986 F.2d at 1174 (quoting Colorado v.. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).

The court noted that "[g]iven the hundreds of tools in Taylor's truck, Officer Gillespie's description of “misc. tools” does not constitute a detailed, itemized inventory. Continuing, the court concluded:

Even if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search. Hall, 497 F.3d at 852; see also Whren v. United States, 517 U.S. 806, 812 (1996) (noting that an officer's motive may invalidate objectively justifiable behavior in the context of an inventory search). “[S]omething else” must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle. Rowland, 341 F.3d at 780-81. Here, the “something else” is found in the officer's testimony at the suppression hearing. Officer Gillespie testified that the basis for the traffic stop, the arrest, the towing of the vehicle, and the inventory search was the officer's belief that Taylor had narcotics in his vehicle. She also testified that she would not have arrested Taylor, impounded his vehicle, or inventoried the contents of the truck if not for her belief that the vehicle contained evidence of a narcotics crime. This testimony leads us to conclude that the search was conducted because police believed they would find evidence of narcotics in Taylor's truck, and thus the inventory was merely a pretext for an investigatory search.

The dissent stated as follows:

I would hold that Officer Gillespie's good faith generic description of the contents of Taylor's van dispels any suggestion that it was an after-the-fact attempt to insulate the inventory search from a constitutional challenge. Accordingly, I would affirm the order denying the motion to suppress.

Fortunately, this justices 'blind' opinion was outnumbered.


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