Page 59 - TPA - A Peace Officer's Guide to Texas Law 2015

specific exceptions may still justify a warrantless search of a particular phone. One well-recognized exception
applies when the exigencies of the situation make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable under the Fourth Amendment. Such exigencies could include the
need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist
persons who are seriously injured or are threatened with imminent injury.

In light of the availability of the exigent circumstances exception, there is no reason to believe that law
enforcement officers will not be able to address some of the more extreme hypotheticals that have been
suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor
who may have information about the childs location on his cell phone. The defendants here recognize, indeed,
they stress that such fact-specific threats may justify a warrantless search of cell phone data.

We therefore decline to extend Robinson (the search incident to arrest exception to the Fourth Amendment
warrant requirement) to searches of data on cell phones, and hold instead that officers must generally secure a
warrant before conducting such a search. (emphasis added. ed.)

th
Riley v. California, U.S. Supreme Court, No. 13-132, June 25 , 2014.

SEARCH AND SEIZURE INVOLUNTARY BLOOD DRAW IN QUESTION

Last November, the Texas Court of Criminal Appeals held that an involuntary blood draw from a DWI
suspect was a violation of the Fourth Amendment which was not cured by the implied consent doctrine
reflected in Texas Transportation Code Section 724.012(b). The Court has granted a rehearing of the case, thus
the effect of that decision is now in question. A ruling on the motion for rehearing is expected to clarify the issue
as the State has vigorously argued in its Petition for Rehearing that the Transportation Code is a valid waiver by
drivers in the State of their right to object to a warrantless blood draw.

th
State v. Villareal, Tex. Crim. App. No. PD-0306-14 Petition for rehearing granted Feb. 25 , 2015.

WARRANTS

EVIDENCE SEARCH WARRANT APPLICATION
Following a motion hearing and bench trial, the district court convicted Hector Tovar of possession with
intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. §841(a)(1), interstate travel in aid
of racketeering activity in violation of 18 U.S.C. §1952, and possession of an unregistered firearm (a short-barrel
shotgun) in violation of 26 U.S.C. §5861(d).
Tovar coordinated four specific shipments of marijuana from Texas to Pennsylvania in late 2008 and early
2009. Others (Mejia and Nunez) involved in the shipments were first arrested.

After their arrests, both Mejia and Nunez cooperated with authorities. A special agent obtained an arrest
warrant for Tovar and a search warrant for his residence on January 25, 2010. State, local, and federal authorities
executed the warrants at approximately 6:00 a.m. the next morning. Officers entered Tovar s residence, placed
him in handcuffs, and performed a search of his home. In the course of the search, officers located and seized a
shotgun in a closet. Before he received a Miranda warning, Tovar admitted that he had obtained the gun from a
cousin for the purpose of self-protection. Officials later determined that the gun was stolen, unregistered, and
had been altered, with a pistol grip replacing the stock and a cut-off barrel.

Officers brought Tovar to the station after his arrest. A special agent advised Tovar of his Miranda rights,

A Peace Officer’s Guide to Texas Law 52 2015 Edition