Page 54 - TPA - A Peace Officer's Guide to Texas Law 2015

circumstances surrounding the search, guided by a non-exhaustive list of factors:

whether the accused had a property or possessory interest in the place invaded;
whether he was legitimately in the place invaded;

whether he had complete dominion or control and the right to exclude others;
whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy;

whether he put the place to some private use; and
whether his claim of privacy is consistent with historical notions of privacy.

Normally, all six of the above factors indicate that a person who borrows a car with the owner s
permission has a reasonable expectation of privacy in that car. Officer Zimpelman said it best at the motion-to-
suppress hearing: Just like if you rent a car from Enterprise, if you rent it, youre not the owner, youre leasing
it. But you can let people in your car or not let people in your car.

No person can reasonably expect privacy in property he abandons. Thus, when a defendant voluntarily
abandons property, he lacks standing to contest the reasonableness of the search of the abandoned property. In
order to abandon property, the decision to abandon must be voluntary, and a defendant must intend to abandon
the property. Abandonment is not voluntary if it is the product of police misconduct. The issue is not whether
he intended to discard the property permanently, but rather whether he abandoned the property in such a way
that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.
When the circumstances indicate that a person intended to abandon a car, he also abandons any reasonable
expectation of privacy in it.

Before appellant fled, he had both a subjective and reasonable expectation of privacy in the white van.
Appellant exercised a subjective expectation of privacy when he refused to consent to the search of the vehicle.
Appellant ran for two blocks and entered a vacant field. He stopped only when Officer Zimpelman activated his
taser and pointed it at appellant. These circumstances show that appellant intended to abandon any expectation
of privacy in the van he left behind.

The detention:

Under the Fourth Amendment, a brief investigatory detention must be justified by reasonable suspicion.
A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with
rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been,
or soon will be engaged in criminal activity. In determining whether an officer has reasonable suspicion to
detain, we look at the totality of the circumstances through an objective lens, disregarding the officer s subjective
intent. Although some circumstances may seem innocent in isolation, they will support an investigatory detention
if their combination leads to a reasonable conclusion that criminal activity is afoot. An anonymous tip alone is
seldom sufficient to establish reasonable suspicion. Reasonable suspicion is dependant not only on the content
of the information possessed by law enforcement, but also on its reliability. To support reasonable suspicion, an
anonymous tip requires some indicia that the caller is credible or that his information is reliable. The
investigatory detention must be reasonably related in scope to the circumstances which justified the interference
in the first place. An officer must act to confirm or dispel his suspicions quickly. But the temporary detention
may continue for a reasonable period of time until the officers have confirmed or dispelled their original
suspicion of criminal activity. One reasonable method of confirming or dispelling the reasonable suspicion that
a vehicle contains drugs is to have a trained drug dog perform an open air search by walking around the car.
If the dog alerts, the presence of drugs is confirmed, and police may make a warrantless search. If the drug dog
does not alert, the officer s suspicions will normally be dispelled, and the citizen may go on his way.

Appellant was seized, and the investigatory detention began, when he was ordered to get out of the van

A Peace Officer’s Guide to Texas Law 47 2015 Edition