Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair
Government Avoids 4th Amendment Requirement of Probable Cause
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In 1970 it was discovered by a gentleman named Christopher H. Pyle that the U.S. Army Intelligence Command had 1500 commissioned officers whose duty it was to spy on any known protest or demonstration in this country involving 20 or more people. While Pyle’s eventual revelations about this stunning information captured the attention of the Chairman of the Senate Subcommittee on Constitutional Rights, Sen. Sam Ervin, the great Watergate truth-seeking champion, had little authority to do anything about the “spying on Americans” scandal.
But in 1975 a younger, and lesser known, Democratic senator from Idaho named Frank Church put the Pyle information to good use. In the wake of President Richard Nixon’s resignation for the massive criminal corruption associated with Watergate, Senator Church used a December 1974 report by New York Times columnist Seymour Hersh concerning widespread CIA warrantless surveillance to bring Pyle’s information before the senator’s U.S. Select Committee to Study Governmental Operations with Respect to Intelligence Activities.
Thanks to courageous Americans like Pyle, Hersh, and Sens. Church and Ervin, the people of this country learned that its executive branch of government had been violating their civil and constitutional rights at such a mind-numbing scale that many lost their faith in “honest government.” It was out of the ashes of this governmental lawlessness that the Foreign Intelligence Surveillance Act (“FISA”) was signed into law by former President Jimmy Carter in 1978. A central feature of the Act was the creation of the Foreign Intelligence Surveillance Court(“FISA Court”) which allows the executive branch to secretly obtain warrants for electronic surveillance but only with strict judicial review (18 USC 36 Foreign Intelligence Surveillance)
The eleven members (originally the number was seven) of the FISA Court are designated by the Chief Justice of the United States. These judges have the authority to entertain ex parteapplications for electronic surveillance “for the purpose of obtaining foreign intelligence information.” FISA defines “foreign intelligence information” as:
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Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Some defense attorneys—and not without a legitimate basis—mistakenly believe that if a police officer detects the odor of marijuana inside a residence, the officer does not have probable cause to enter the residence and arrest the suspected owner of the drug without a warrant. This belief can be traced to a 2002 decision by the Texas Court of Criminal Appeals in State v. Steelman which held that “the detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place.” 1/
Lubbock attorneys Chuck Lanehart and Ralph H. Brock argued the Court of Criminal Appeals (“CCA”) had established a blanket rule, or at least the impression of a blanket rule, in Steelman so they filed a motion to suppress evidence seized from their client, Christopher Chad Parker, on the night of April 2, 2001. A local resident named Ms. Vangie Leal had informed two Lubbock police officers named Ralph Sanchez and Rodney Stevens that night at a local convenience store about alcohol allegedly being served to minors at a nearby residence. Acting on this information, which they believed to be reliable, officers Sanchez and Stevens drove to the nearby two-story house where they saw several vehicles parked outside but no unusual activity. Then Sanchez spotted someone parting the blinds inside the residence and heard someone say, “it’s the police.” 2/
Sanchez and Stevens believed these actions warranted further investigation. They approached the residence and knocked. Christopher Parker opened the door. Officer Stevens saw what appeared to be a juvenile run up the stairs and recognized him from previous minor encounters the officer had with the juvenile. Stevens also immediately smelled the odor of burnt marijuana. He informed Parker that he and officer Sanchez were there to investigate a report of “kids drinking alcohol.” Stevens also told Parker the two officers would have to enter the residence because of the smell of marijuana. Parker allowed the officers inside the residence. 3/
Stevens and Sanchez gathered all the occupants of the residence into the living room. Stevens went to find the person he had seen running up the stairs and in the process found Parker’s mother sleeping. The officer asked her to join everyone in the living room. A short time thereafter two police supervisors arrived. Just as one of the supervisors was asking Parker’s mother for consent to search the residence, officer Stevens saw a marijuana cigarette butt and some loose marijuana in plain sight on top of a pizza box in the living room. While the mother consented to a search of the residence, the marijuana had been already spotted and seized before she actually consented. 4/
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