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MyraB
MyraB, Attorney
Category: Legal
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Sheriff and Game Warden searched my property after dark on

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Sheriff and Game Warden searched my property after dark on a Sunday night, and called in others to assist. They all ignored me when I announced they were trespassing and since they had no warrant were requested to leave. They returned again the next day, again the third day, and finally on the fourth day got a warrant to search inside my residence. Charges of animal cruelty were filed, but then dropped and it became a civil seizure instead. I'm now suing them for multiple causes, including illegal search and seize, and violations of due process. They claim extenuating circumstances because a teenager "neighbor" a mile away claimed she could hear the animals and feared for her life. Then they claim the warrant "broke the chain of causation" and somehow retroactively applied to those 3 days of warrant-less searches. I tried to refute both of those defenses, but the judge accepted them anyway. Where could I find case law concerning law enforcement doing a search and then getting a warrant AFTER 4 days? Can I argue that the 3 days proves there were no exigent circumstances?
Submitted: 9 months ago.
Category: Legal
Expert:  MyraB replied 9 months ago.

Hello and thank you for your question. I apologize that I could not answer earlier as I was away most of the day. Thank you for your patience.

One issue in the fact pattern you set forth is that of the open fields vs. curtilage. Under the 4th Amendment the curtilage of the home, which is essentially the area immediately surrounding the home, is protected, but open fields ie. areas beyond the curtilage though still on private property is not. Two caveats 1. this is under federal law and state law may differ and provide more protection. 2. what constitutes curtilage and what is open fields is not always straightforward. For this issue you may want to look at Oliver v. United States, 466 U.S. 170 (1984) and United States v. Dunn, 480 U.S. 294 (1987). These case can be found at Google Scholar http://scholar.google.com/ Insert the citation in the search box and the cases should come up.

Another case you may want to look at is McClintock v. Texas. This is a recent Texas case which discusses Oliver and also states that police may not walk into the curtilage with the purpose of conducting a search without a warrant (or exception) That case may be found here http://scholar.google.com/scholar_case?case=4122499604375664838&q=Oliver+open+fields&hl=en&as_sdt=4,44&as_ylo=2009

Take a look at those and let me know if you need something more. So much of case law depends on the specific facts and especially with the determination of curtilage v. open fields.

A search with a warrant can never justify a prior search conducted without a warrant. In fact, if information from a prior illegal search is relied upon for probable cause to obtain the warrant, that may be sufficient to invalidate the warrant. See Valtierra v. State, 293 S.W.3d 697 (Tex. 2009)(subsequent warrant lacked probable cause because based on warrantless entry). Also, as you noted, exigency could not justify the warrantless searches where the sheriff could have obtained a warrant. Even if it justified the first entry, it could not justify subsequent entries over the course of the next two days before the sheriff applied for a warrant. See Turrubiate v. State, 365 S.W.3d 780 (Tex. 2012) and Turrubiate v. State (appeal) http://scholar.google.com/scholar_case?case=7940588741177580801&q=turrubiate&hl=en&as_sdt=4,44&as_ylo=2009 These cases set forth the standard for exigent circumstances. Also, Guterrez v. State, 221 S.W.3d 680 (Tex. 2007).

MyraB, Attorney
Category: Legal
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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