Tuesday, May 03, 2005


Client was charged with possession of between 4 and 200 grams of cocaine with intent to deliver, a first degree felony. Because he had a prior final felony conviction, his range of punishment, if convicted, was 15 to 99 years or life in prison. There was a pre-trial offer to drop the felony enhancement and get five years in prison. Client rejected the offer. The case was set for a motion to suppress hearing and a jury trial last week. At the hearing on the motion, the officer testified that he was driving by a hotel known for drug activity. He observed a man on a second floor landing quickly enter his room upon seeing the officer. He then observed Client standing by his car in the parking lot. When he approached, Client turned and walked away. Officer stopped Client and asked him to identify himself. Client did, and produced a work ID. Officer asked for an official government ID. Client told officer his ID was upstairs in his room. Officer told him to go get it. Client proceeded upstairs towards his room. Officer followed. Client opened the door to his room and the officer just followed him in. There was no invitation from the defendant and no request from the officer. He testified that he just followed him in because they were having a friendly conversation. Upon entering the room, the officer observed two other individuals in the room. He also observed a shaving bag on the dresser with what appeared to him to be a crack pipe sticking out of it. Officer unzipped the bag in order to retrieve the crack pipe, and immediately spotted drugs in the bag. Client was arrested. Room was searched incident to arrest and a scale was found. Our argument on the motion to suppress went like this:

1) Officer detained Client without reasonable suspicion
2) Even if he had reasonable suspicion, purpose of detention was completed once Client identified himself, and further detention was without legal cause
3) Officer illegally entered Client's room without a warrant
4) Officer's claim that he believed Client was consenting to him entering the room because they were having a friendly conversation did not meet burden to show consent by clear and convincing evidence (unlike federal law, Texas law requires the state establish consent by clear and convincing evidence, not merely a preponderance)
5) Even if Client had impliedly consented to Officer's entry, under the circumstances, consent was not voluntary
The judge took the issue under advisement and allowed us to submit caselaw and a memorandum. The jury trial was held to this week while the judge considered his decision. Yesterday, the judge told all parties to report for jury selection at 1:30 p.m. No jurors were available at 1:30 p.m., so we were told to be in court at 8:30 a.m. At 9:00 a.m. today, the judge informed us that he was granting the motion to suppress. Seriously. Like, for real. Awesome.


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2/24/2010 11:16 AM  

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