We have no more rights, even those given to us by the constitution.

[Theory5]

I am not a big fan of America, but I do try to learn all I can to prevent so called authority figures from abusing their powers. But last night a friend of mine (not a close friend, more of an aquantice) was arrested for possesion. This, while being bad in itself has been made worse due to the fact that he wasnt doing anything, and a policeman searched him for no reason at all. This is based on what I have heard via word of mouth from my other friend, he doesnt have all the details either.

Anyways, what I want to know: is there any part of acts passed such as the Patriot Act that allows law enforcement to search somebody for no reason or an unrelated reason, (such as "tresspassing" when somebody is hanging around in a public parking lot?). What happened to needing a warrent, and/or seeing something illegal happening, leading to arresting and a search of the person? The US constitution and the UN's book on crimes and punishment both clearly state people cannot have themselves or their property searched without reason and a warrent.

Is there anyway to combat this horrible infringment of human rights?

[lawcat]

I am not a big fan of America

Well, that is unfortunate.

but I do try to learn all I can to prevent so called authority figures from abusing their powers

Police is not the "so called authoritiy," but the only legitimate law enforcement.

You should learn about the system you live in, and appreciate the system you live in, for your own safety, mental stability, and enjoyment of life.

But last night a friend of mine (not a close friend, more of an aquantice) was arrested for possesion. This, while being bad in itself has been made worse due to the fact that he wasnt doing anything, and a policeman searched him for no reason at all. This is based on what I have heard via word of mouth from my other friend, he doesnt have all the details either.

Since you do not have all the details, you should speak with abundance of caution, before accusing anyone.

Anyways, what I want to know: is there any part of acts passed such as the Patriot Act that allows law enforcement to search somebody for no reason or an unrelated reason, (such as "tresspassing" when somebody is hanging around in a public parking lot?).

No. Patriot Act does not take away your Fourth Amendment protection against unreasonable search and seizure, which is the law that governs this situation.

What happened to needing a warrent, and/or seeing something illegal happening, leading to arresting and a search of the person?

Warrant is only required for the search of your house. Today, to stop a person, and pat down for weapons, a police officer must have a reasonable suspicion: In his/her experience and training, considering the circumstances, a police officer must reasonably belive that something fishy is going on to stop you, pat you down, and ask questions--to seize you and investigate further.

To search you, a police office must have a probable cause; meaning, after something arouses suspicion in officer, and after you have been seized and questioned, an officer must have a reason to know that violation has occured -- have a probable cause. In addition, if officer sees a violation -- crack in your car seat, smell of marijuana coming from the window, license plate hanging on one nail, etc.--officer may stop you and search you; officer has a probable cause because of the violation.

A good case to read on this is Whren v. United States, Whren et al. v. United States, 517 U.S. 806 (1996)..

Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests--such as, for example, seizure by means of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U. S. ___ (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U.S. 740 (1984), or physical penetration of the body, see Winston v. Lee, 470 U.S. 753 (1985). The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact.

 

The US constitution and the UN's book on crimes and punishment both clearly state people cannot have themselves or their property searched without reason and a warrent. Is there anyway to combat this horrible infringment of human rights?

 

Do not violate law, do not drive drunk or high. If officer stops you, keep your car clean, and ask what the problem is. This will appraise you of the reason for the stop. If it is traffic, provide documentation and do not talk. If it is on the street, ask what the reason for the stop is. If it is just for information, excuse yourself politely; say that you have business to do and do not wish to talk. If the officer seizes you --does not let you go--do not resist. Get the answer of why the officer is seizing you. If they search you get the answer of why the officer is searching you. Do not talk beyond this. If they arrest you do not talk and ask for a lawyer.

[TheBigDog]

My only experience with questionable search came back in 2003 at the Denver International Airport. I lived in Colorado and traveled for a living, so I was VERY familiar with the airport and the security. I liked my trip through the airport to be as smooth as possible, so I bought myself shoes that did not set off the metal detectors. Then came the signs that read, "we recommend that you remove your shoes to speed your passage through security". And that is when I got a serious stubborn streak.

 

I had gone out and bought shoes that I knew did not set off the detector. I had been wearing them for months. But when the signs went up I experienced a new thing from the TSA. When I removed my shoes I was ushered right to the area to collect my bags. When I kept my shoes on I was ushered to the area for a pat down. It was never stated, and it was flat out denied, but the TSA folks were under instructions to search anyone who did not remove their shoes. These were under the guise of "random selection", but random cannot have such specific criteria. Being who I am I experimented with this for several months and 100% of the time when I took off my shoes I was sent through without search, and 100% of the time I did not volunteer to remove my shoes I was searched.

 

So I decided to find out why. I stopped volunteering to remove my shoes and I started to ask questions. I would ask, "why am I being searched", and I would be told, "You have been selected randomly". I would comment that they were not intending to search me until they saw that I had not removed my shoes. Sometimes I would have already walked through the metal detector before they saw I still had my shoes on, and they would ask me to step back through and ask if I was going to remove my shoes, and when I said no they would send me to the search area. The key is that in the search are you had to remove your shoes for the search. In essence, they wanted everyone to remove their shoes, but they did not feel they had legal authority to say that, so they went around it through the "random search" ruse.

 

So I eventually had a meeting with the head of security at DIA. We chatted for a good hour on the balcony overlooking the security area. He said that I was absolutely right about the fact that failure to volunteer to remove your shoes flagged you for random search. The trouble he said was that the attorneys for the TSA could not agree on the legality of requiring people to remove their shoes. Because they could not determine that they could be up front about it, the used the cloak of a legal random search instead. I liked the guy because he was the first person to actually speak honestly about the policy.

 

It was just a few months later that they began having everyone remove their shoes, or use the shoe searchers that allowed inspection of your shoes without removing them.

 

I was actually told by one TSA guy that the 4th amendment did not apply to them, because they were the government. I literally did a head slap when he told me that, and I asked to be searched by his supervisor in hopes of finding someone with a shred of intelligence. His supervisor said something to the effect of "sorry, he's an idiot". Another guy told me that the security area of the airport was not covered by the constitution. I asked him to show me exactly where the line was where I had vanquished my constitutional protections. He was not prepared for this conversation and referred me to his boss himself. His boss also claimed that the constitution did not apply to them, so I laughed and asked him what he did with the crackerjacks (that came with his badge). He didn't get it and let me move along.

 

The bottom line is that you need to know your rights, and you have to understand how to behave when confronted by those with the duty to enforce the law. There is a line between diligence and abuse of power. Recognizing the difference sometimes takes work and can be very subtle. Also recognize that everyone is constantly learning, so mistakes do not indicate a broken system, they indicate a learning system. Sometime you need too speak up and help people learn, but do it carefully.

 

Bill

[lawcat]

BigDog,

 

That is a great story. I hated having to take my shoes off when traveling. I felt like a half-naked idiot in the middle of the terminal.

Airports are specific venues, especially in the context of your story since it happened shortly after 9/11. The issue is often: what is unreasonable? Is it unreasonable to scan travelers, or scan their shoes and make them walk barefoot for 10 feet, at the airport terminal in the wake of 9/11? I would not be surprised if courts and legislators turned a blind eye to that at the time, and even today. The government's interest in safety of travel probably outweighs our expectation of privacy in shoes for that 10 foot walk through the scanner.

 

But notice that the lawyers advised the TSA to call it "random search" just to avoid the possible problems. This really is not intended to curb legal arguments, but more of a policy to calm the travelers, because no one wants to be targeted specifically, and they usually scream against that. The reason that "random search" has no legal bite is that random searches can not be permanent, such as the barricade at the airport. The government can not randomly search permanently. Random searches are temporary, such as the famous seat-belt stops, which are usually a weekend things; or, alcohol stops over fourth of July. Random searches must be temporary to be legitimate. Otherwise, they are not random, but a wide spread practice.

 

(Random search is by definition unreasonable; the fact that they may random search thousands of people instead of just one, does not mitigate it, but makes it repugnant to every principle of the constitution. That is why it must be temporary. And your search was random only to the extent to calm you down; but in a legal sense it was not.)

[Theory5]

Do not violate law, do not drive drunk or high. If officer stops you, keep your car clean, and ask what the problem is. This will appraise you of the reason for the stop. If it is traffic, provide documentation and do not talk. If it is on the street, ask what the reason for the stop is. If it is just for information, excuse yourself politely; say that you have business to do and do not wish to talk. If the officer seizes you --does not let you go--do not resist. Get the answer of why the officer is seizing you. If they search you get the answer of why the officer is searching you. Do not talk beyond this. If they arrest you do not talk and ask for a lawyer.

 

My friend wasnt driving, he was walking down the street, at night 10:00ish.

 

I have heard that they needed a warrent or something to search your glovebox if it is locked, something about being a thorough search?

 

 

And as I mentioned before about an unrelated violation leading to a search, there has been talk of people being arrested for hanging around public area's and they were searched.

 

Since you do not have all the details, you should speak with abundance of caution, before accusing anyone.

who was I accusing? I did say I did not have all the details, which means I could be telling you the wrong stuff, or have the wrong details, etc.

 

I am trying to learn everything about this I can, because I want to know all my options. My sister says that they search kids occasionally at her school. And in my school they have brought in the police for drug searches. I wish to know what rights I have, beacuse I have heard (some) laws have changed, or the way police handle stuff have changed.

Police pick kids up late at night and take them home sometimes. Thats not so uncommon, what are the legallities of that?

 

Although the sanctity of ones privacy against illegal intrusion is one of the most important basic rights in our Constitution, experiences show that such intrusions occur at the hands of overzealous police officers.

taken from PCH-82 Lyrics by Authority Zero http://www.plyrics.com/lyrics/authorityzero/pch82.html

How do you defend yourselves against an unlawful instrusion by an officer? We have been told constantly that the police are the good guys, almost to the point where we dont belive any other side by somebody else. What happens when we are that "somebody else"?

 

Yesterday I saw an officer flash his lights to make a slower driver pull to the side so he could get past. If somebody can abuse their power in small ways such as this, whats to stop them from doing other things, things of bigger consequence?

[TheBigDog]

Yesterday I saw an officer flash his lights to make a slower driver pull to the side so he could get past. If somebody can abuse their power in small ways such as this, whats to stop them from doing other things, things of bigger consequence?

That is an abuse of powers? Huh?

[lawcat]

Do not consent to search of your bag, purse, pockets, mouth, car. If they ask if they may search, say no. If they ask again say no. never consent. Do not break law. Mind your own business. Do not talk. You are free to walk home, unless your city has cerfew ordinance. If it does, do not consent to search. They can pat you down, or your bag, or feel inside your bag, for weapons. If they discover drugs or other contraband while patting down, you will likely be arrested. Do not resist. Do not talk.

[InfiniteNow]

Do not consent to search of your bag, purse, pockets, mouth, car. If they ask if they may search, say no. If they ask again say no. never consent. Do not break law. Mind your own business. Do not talk. You are free to walk home, unless your city has cerfew ordinance. If it does, do not consent to search. They can pat you down, or your bag, or feel inside your bag, for weapons. If they discover drugs or other contraband while patting down, you will likely be arrested. Do not resist. Do not talk.

 

Lawcat - Let me get your thoughts on something. I was always told that if I got pulled over for drunk driving that one should refuse the breathalizer and refuse the field sobriety test (walk the straight line, look up and touch your nose, that whole thing). The idea was that, by agreeing to these tests, you were doing nothing but providing evidence for them to use against you in court, and that if you refused (which is your right) they would have nothing and you'd get off more easily and with lesser (if any) charges.

 

Now recently, here in Texas, they've implemented a no refusal program. They have checkpoints where they pull people over and they are required to do a sobriety test/breathalizer. If the person refuses, the officer has the right to require a blood draw to test for alcohol in their system. If alcohol is found, obviously they spend the night in jail.

 

How is that possible? How can they get around protections, and even if a person refuses their test, they have the right to draw blood? What's the deal with that? Any ideas on how this is even constitutional or legal?

[Theory5]

That is an abuse of powers? Huh?

 

yup yup. Their lights are for emergencies, just like for fire trucks and ambulences. Im pretty sure there is something that prohibits police from flashing their lights to pass a slow driver. Also, if you fail to yeild to an emergency vehicle when it has its lights or sirens on you are breaking a law, because those lights are only for emergencies. I cant find anything about police car lights being used only in emergencies, but its out there somewhere, I bet.

EDIT: Found it on wiki

The use of emergency beacons is restricted by law in many jurisdictions only for responding to an emergency, initiating a traffic stop, bona fide training exercises, or when a specific hazard exists in the road.

http://en.wikipedia.org/wiki/Emergency_vehicle_lighting#United_States

[InfiniteNow]

yup yup. Their lights are for emergencies, just like for fire trucks and ambulences. Im pretty sure there is something that prohibits police from flashing their lights to pass a slow driver. Also, if you fail to yeild to an emergency vehicle when it has its lights or sirens on you are breaking a law, because those lights are only for emergencies. I cant find anything about police car lights being used only in emergencies, but its out there somewhere, I bet.

 

Good luck trying to prove they weren't on their way to provide back-up for a colleague, or weren't responding to a call that was lower priority. Use of the lights has nothing to do with emergencies. It's about clearing traffing or notifying a driver to pull over so they can effectively do their jobs.

 

Even if it were for emergencies only, though, you'd have no way of knowing if they were responding to a call for help or not, so it's really moot.

[Theory5]

Good luck trying to prove they weren't on their way to provide back-up for a colleague, or weren't responding to a call that was lower priority. Use of the lights has nothing to do with emergencies. It's about clearing traffing or notifying a driver to pull over so they can effectively do their jobs.

 

Even if it were for emergencies only, though, you'd have no way of knowing if they were responding to a call for help or not, so it's really moot.

 

I would really hope that they would put on their lights when providing help, otherwise that would mean that they place the call below emergency level, right?

And they sped up to go around the car, and they went on only doing around 10 MPH above the speed limit.

Anyways, I was trying to use that as an example of an abuse of power, not an actual infringment of the law, because I have no actual proof.

[lawcat]

Now recently, here in Texas, they've implemented a no refusal program. They have checkpoints where they pull people over and they are required to do a sobriety test/breathalizer. If the person refuses, the officer has the right to require a blood draw to test for alcohol in their system. If alcohol is found, obviously they spend the night in jail.

 

How is that possible? How can they get around protections, and even if a person refuses their test, they have the right to draw blood? What's the deal with that? Any ideas on how this is even constitutional or legal?

 

InfiniteNow,

 

I honestly can not answer that question without doing some research. I can blabber about my arguments for or against such practice, which would have some merit, but I do not think that it would be as insightful. So I will do some research, and let you know the status of that.

[TheBigDog]

I would really hope that they would put on their lights when providing help, otherwise that would mean that they place the call below emergency level, right?

And they sped up to go around the car, and they went on only doing around 10 MPH above the speed limit.

Anyways, I was trying to use that as an example of an abuse of power, not an actual infringment of the law, because I have no actual proof.

This one reminds me of my mom. She has only gotten one traffic ticket in her life; failure to stay to the right. In most places you must stay to the right except to pass, although this is rarely ever enforced. Flashing the lights to get a person to pull to the right lane is more polite than giving them a ticket. There is no telling what that officer may have been up to.

 

I have had brushes with police where I thought they were taking liberties with their authority. None of them has ended terribly badly, but I know exactly what you are getting at. It is frustrating to be at the receiving end of attention from the law that you feel is undo and without cause. My experience is that these are the far exception to the rule, and paint law enforcement in a bad light based on the actions of a small fraction of their brethren.

 

Bill

[lawcat]

Now recently, here in Texas, they've implemented a no refusal program. They have checkpoints where they pull people over and they are required to do a sobriety test/breathalizer. If the person refuses, the officer has the right to require a blood draw to test for alcohol in their system. If alcohol is found, obviously they spend the night in jail.

 

How is that possible? How can they get around protections, and even if a person refuses their test, they have the right to draw blood? What's the deal with that? Any ideas on how this is even constitutional or legal?

 

InfiniteNow,

 

I did some research, and here is what I found:

 

First:

Under the implied consent law, consent to the taking of a breath or blood specimen must be voluntary. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). If a driver's consent is induced by an officer's misstatement of the consequences flowing from a refusal to give a specimen, the consent is not voluntary. Id. at 894 (holding that officer's erroneous statement that Erdman would immediately be jailed and charged with driving while intoxicated if he refused to give specimen rendered consent involuntary); State v. Sells, 798 S.W.2d 865, 867 (Tex. App.-Austin 1990, no pet.) (holding that officer's erroneous statement that Sells would automatically be charged and incarcerated if he refused to give specimen rendered consent involuntary).

 

Assuming, without deciding, that implied consent law applies to the refusal to submit a breath specimen, and that the ALJ implicitly denied [*11] Patel's motion to suppress, there is no indication that the ALJ erred in its decision. Whether one voluntarily submits a breath specimen is a question of fact. Hall v. State, 649 S.W.2d 627 (Tex. Crim. App. 1983). The ALJ is the ultimate trier of fact. See TEX. GOV'T CODE ANN. § 2001.174 (Vernon 2000). In the instant case, the ALJ determined that Patel voluntarily refused based on her findings. As the sole trier of fact, she was free to believe or disbelieve Patel's contention that the arresting trooper's extra-statutory warnings affected his decision to refuse to provide a breath specimen. See id; see also Dept't of Pub. Safety v. Hirschman, 169 S.W.3d 331, 337 (Tex. App.-Waco 2005, pet. denied) (reversing county court at law because it "improperly substituted its own judgment by re-weighing the evidence using the equally plausible but opposite inferences construct").

Texas Judiciary Online - HTML Opinion

 

So, the consent must be voluntary.

 

Second, if there is no consent, an officer may draw blod sample if a person is arrested:

 

The implied consent law applies only to persons who are arrested for driving while intoxicated or related offenses. Aliff v. State, 627 S.W.2d 166, 168 (Tex. Crim. App. 1982); Combest v. State, 981 S.W.2d 958, 960 (Tex. App.--Austin 1998, pet. ref'd); see Tex. Transp. Code Ann. § 724.011(a) (West 1999) HN3("If a person is arrested . . . the person is deemed to have consented"), § 724.012(a) (West Supp. 2005) HN4("specimens . . . may be taken if the person is arrested").

Texas Judiciary Online - HTML Opinion

 

Third, to arrest a driver, an officer must have a probable cause:

 

Based upon his observations, [*2] Officer Barr initiated a traffic stop.

 

. The driver was slow to respond but eventually stopped approximately five blocks later.

 

. After identifying the driver as appellee, Officer Barr detected a moderate odor of alcohol emanating from him and noticed that he slurred his speech and was unsteady on his feet after exiting his vehicle.

 

. When Officer Barr asked appellee if he had consumed any alcoholic beverages, appellee replied that he had consumed four beers.

 

. Officer Barr administered three field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test.

 

. During the HGN test, Officer Barr observed six of the six observable clues. Based on his training and experience, Officer Barr knew that four or more clues are a reliable indicator of intoxication.

 

. During the walk-and-turn test, he observed five of the eight observable clues. Based on his training and experience, Officer Barr knew that four or more clues are a reliable indicator of intoxication.

 

. During [*3] the one-leg stand test, he observed three of the four observable clues. Based on his training and experience, Officer Barr knew that four or more clues are a reliable indicator of intoxication.

 

. Officer Barr arrested appellee for driving while intoxicated and transported him to the police station.

 

Fourth, once a person is arrested, an officer may seek a search warrant to draw a blod sample based upon the evidence of the arrest. Thus, the blood tests are obtained under warrant or voluntary consent.

When he was asked to submit a specimen for testing, appellee became dazed and confused, took an unusually long time to decide, and then refused both the breath and blood tests. Based on his training and experience, Officer Barr knew that appellee's refusal was a violation of the implied consent law.

 

On March 15, 2008, at 6:03 a.m., the magistrate signed the search warrant. Appellee's blood was subsequently drawn and tested.

 

Appellee filed a motion to suppress the result of the blood test contending that the affidavit failed to state probable cause on several grounds. At the hearing on the motion, he specifically argued that because the affidavit failed to include the time the alleged offense occurred, there was no basis upon which the magistrate could have determined whether appellee's blood contained evidence of a crime. Thus, he reasoned, the facts in the affidavit were stale and did not [*4] establish probable cause to support issuance of the warrant. At the conclusion of the hearing, the trial court stated as follows:

The Court finds that the time in the drawing of blood is a critical issue. Because when you're dealing with blood, you're dealing with absorption, elimination, and it becomes less accurate. And the Court finds that the Motion to Suppress will be granted because there is no time. Without even moving on to other issues in the warrant, that there is no time stated in the affidavit; and, therefore, the Motion to Suppress the Blood is granted.

 

 

On September 8, 2008, the trial court signed the written order granting appellee's motion to suppress the blood test. The State timely filed this appeal.

 

II. ANALYSIS

 

A. Standard of Review

 

HN1We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts that depend on credibility and review de novo the trial court's application of the law to those facts. Maxwell, 73 S.W.3d at 281; Carmouche, 10 S.W.3d at 327. [*5] We also review do novo the trial court's application of the law of search and seizure. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). But appellate review of an affidavit in support of a search warrant is not de novo; rather, great deference is given to the magistrate's determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236-37, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

 

B. Applicable Law

 

HN2Generally, taking a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Therefore, Article 1, Section 9 of the Texas Constitution requires that a search warrant be used. Escamilla v. State, 556 S.W.2d 796, 799 (Tex. Crim. App. 1977). Pursuant to Texas Code of Criminal Procedure article 18.02(10), a search warrant may be issued to search for and seize, inter alia, "property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense." TEX. CODE CRIM. PROC. ANN. art. 18.02(10) (Vernon 2005). Blood is an "item" of evidence within the meaning of article 18.02(10). Muniz v. State, 264 S.W.3d 392, 396 (Tex. App.--Houston [1st Dist.] 2008, no pet.).

 

HN3The [*6] issuance of a search warrant for "items" in article 18.02(10) requires that the peace officer first present to a magistrate a sworn affidavit setting forth sufficient facts to establish probable cause that (1) a specific offense has been committed; (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and (3) the property or items constituting such evidence are located at or on the particular person, place, or thing to be searched. TEX. CODE CRIM. PROC. ANN. art. 18.01© (Vernon Supp. 2007). The test for determining probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Id. at 236. Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); see also Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) ("Probable cause exists [*7] when, under the totality of the circumstances, there is a 'fair probability' that contraband or evidence of a crime will be found at the specified location."). Neither federal nor Texas law defines precisely what degree of probability suffices to establish probable cause. Rodriguez, 232 S.W.3d at 61. We must consider whether there are sufficient facts, coupled with inferences from those facts, to establish a "fair probability" that evidence of a particular crime will likely be found at a given location. Id. The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; instead we focus on the combined logical force of facts that are in the affidavit. Id.

 

HN4When reviewing an issuing magistrate's determination, we should interpret the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences. Id. Whether the facts mentioned in the affidavit are adequate to establish probable cause depends on the totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996). To justify a magistrate's finding that an affidavit is sufficient to establish probable cause [*8] to issue a search warrant, the facts set out in the affidavit must not have become "stale" when the magistrate issues the search warrant. McKissick v. State, 209 S.W.3d 205, 214 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Serrano v. State, 123 S.W.3d 53, 60 (Tex. App.-Austin 2003, pet. ref'd); Guerra v. State, 860 S.W.2d 609, 611 (Tex. App.-Corpus Christi 1993, pet. ref'd). Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. McKissick, 209 S.W.3d at 214. 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. Id. With these general principles in mind, we turn now to the affidavit in this case.

 

C. The Affidavit

 

In its sole issue, the State contends that the trial court erred in granting appellee's motion to suppress because the search warrant affidavit showed that appellee's blood probably contained evidence of intoxicants at the time the warrant was [*9] issued. Appellee argues that the trial court properly granted his motion because the affidavit did not indicate the time of the alleged offense and, thus, the facts in the affidavit had become stale.

 

We are not aware of any cases, and neither party has directed us to any, addressing the staleness issue related to blood-alcohol content in the context of probable cause to support a search warrant. 1 Appellee instead directs us to several cases addressing the impact of the passage of time on the admissibility of the results of a blood alcohol test. 2 See State v. Mechler, 153 S.W.3d 435, 437 (Tex. Crim. App. 2005); Mata v. State, 46 S.W.3d 902, 907 (Tex. Crim. App. 2001). But these cases concern the admissibility of expert testimony and intoxilyzer test results-not probable cause to issue a search warrant to collect blood evidence. As these cases are unavailing, we conclude that we must consider whether it was unreasonable for the magistrate to presume that evidence of intoxication would be found in appellee's blood at the time this warrant was issued. See McKissick, 209 S.W.3d at 214.

http://www.14thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=85972

[InfiniteNow]

InfiniteNow,

 

I did some research, and here is what I found:

Thanks... They're a bunch of bastards, aren't they?

 

So, to summarize:

Samples can only be taken when consent is given.

When the individual is arrested, consent is implied.

To arrest someone, the officer only needs probable cause.

Once the officer has made the arrest based on the aforementioned probable cause, consent is implied and the blood can be drawn to add to their evidence in the case regarding intoxication.

 

 

Bunch of Nazis here in Texas, ain't they? Thanks again, lawcat. I'd been wondering about that, but had not taken the time to find an answer. The simplicity of the approach is rather striking.

[TheBigDog]

Funny that we were having this conversation tonight. I was just out driving to the store when I got a phone call. I pulled into a parking lot of a closed store because my truck is too noisy to talk on the phone anymore. I talked for about five minutes. Just as I hung up lights came on behind me. A cop saw me in the parking lot and came to investigate. He asked me what I was doing there, and took my driver's license back to his car. About three minutes later he gave it back, apologized for the inconvenience, and let me on my way.

 

Would this qualify as an abuse of authority, or of just good policing?

 

I was not happy to have to hand over my ID for doing nothing at all illegal. The lights on my car were on, I was not trying to hide or to be suspicious. Hell, I pulled off the road to use my cell phone rather than talk while driving. I could have copped an attitude with him about all that, but it was just easier to comply. Sometimes mis-communication is communication eventually.

 

Bill

[CraigD]

I am not a big fan of America...

By tradition and acclaim, the US is a nation, in the 1863 words of then President Lincoln, “by the People, for the People”, so not being a fan of it is in a sense not being a fan of yourself. In other words, you, I, and other hypographers living here are not merely residents of America – we are America.

... but I do try to learn all I can to prevent so called authority figures from abusing their powers.

I applaud you. Understanding our government and laws are essential not only to curbing abuses of authority, but to participating in, and personally exercising authority, in out society. One of the surest ways to assure you’re not a victim of misused authority is to be authority.

Anyways, what I want to know: is there any part of acts passed such as the Patriot Act that allows law enforcement to search somebody for no reason or an unrelated reason, (such as "tresspassing" when somebody is hanging around in a public parking lot?).

Since you ask, yes, the USA PATRIOT Act (bonus points to anyone who can expand this acronym without looking it up) clearly, and unconstitutionally, expands the search and seizure powers of certain officials. Specifically, Title II of the Act permits searches to be conducted before the warrant is issued. This provision was ruled a violation of the Fourth Amendment 26 September 2007 by Mayfield vs. USA

 

What happened to needing a warrent, and/or seeing something illegal happening, leading to arresting and a search of the person? The US constitution and the UN's book on crimes and punishment both clearly state people cannot have themselves or their property searched without reason and a warrent.

The Fourth Amendment reads (italics mine)

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The “wiggle room” in this law that permits situations such as you describe, is due to the inclusion of the word “unreasonable”, as what is and is not reasonable is determined by the opinion of courts.

 

In the worst cases, this determination of reasonableness can hinge on a jury’s determination of who of two people are lying – for example, a cop claiming he saw you carrying a bag of pot in plain sight, then pocketing it, vs. you claiming you did not

Is there anyway to combat this horrible infringment of human rights?

Yes.

 

If you are charged based of accusations and evidence arising from an illegal search, do not plead guilty to the charge in court. Challenge it on the grounds of the illegal search. In every case of this kind in which such a challenge was raised of which I’m personally aware, the charge was either dismissed, or resulted in an acquittal.

 

It’s not my intention in the above to paint a too-rosy picture of real-life judicial proceedings. Though I’ve never personally witnessed an challenged illegal search resulting in a conviction, such challenges can be expensive. I have heard a credible first hand account of a free public defender absolutely refusing to offer such a challenge on behalf of a defendant. I’ve personally spent about $6,000 hiring lawyers to represent my adult child in a criminal cases that was dismissed due to illegal searches.

 

IMHO, the practical cost of legal defense is one of the, if not the, greatest inequality in American society. Had I not hired a lawyer for my son, he would likely have have been sentenced to 5 years of prison on the basis of testimony of cops who were quite simply and obviously lying. In this case, justice was served well, but not inexpensively.