The Fourth Amendment and Cell Phone Searches in Texas: A Criminal Defense Lawyer's Guide to Warrantless Phone Seizures
The Fourth Amendment and Cell Phone Searches in Texas: What Every Criminal Defense Lawyer Needs to Know
Episode One of the Texas Criminal Defense Podcast introduces a discussion that reaches far beyond a single criminal case. In this conversation, Andrew Herreth and Andrew Decker examine one of the most important constitutional protections available to criminal defendants—the Fourth Amendment's protection against unreasonable searches and seizures—and how those protections apply when police seize a person's cell phone without first obtaining a warrant.
Every Criminal Defense Podcast Has to Start Somewhere
Every podcast has an origin story.
For Texas Criminal Defense, the first episode begins exactly how most conversations between criminal defense attorneys begin—not with prepared scripts or polished introductions, but with a real case that was argued in court only hours earlier.
Andrew Herreth opens the episode by discussing a motion to suppress he argued that morning involving the seizure of a client's cell phone. Andrew Decker immediately begins asking questions—not simply about what happened, but about why it matters.
That conversational style would eventually become the hallmark of the show.
Rather than presenting legal lectures, the podcast places listeners inside the conversations that criminal defense lawyers have every day.
How should the Fourth Amendment apply?
Did officers actually have probable cause?
Was there a legitimate exception to the warrant requirement?
Would the evidence ultimately survive appellate review?
For lawyers, law students, and anyone interested in constitutional criminal procedure, these discussions provide insight into how criminal defense attorneys evaluate cases in real time.
Why Cell Phones Have Changed Criminal Defense
Few pieces of evidence have changed criminal litigation more than the modern smartphone.
Twenty years ago, a search warrant might have recovered:
a diary,
photographs,
an address book,
or handwritten notes.
Today, a single cell phone can contain:
years of text messages,
emails,
GPS location history,
internet searches,
banking information,
health records,
photographs,
videos,
social media accounts,
cloud storage,
and communications with nearly every important person in someone's life.
Because smartphones contain so much personal information, courts have increasingly recognized that they deserve stronger constitutional protection than many traditional physical objects.
That reality forms the backdrop of the discussion in this episode.
The officers did eventually obtain a search warrant for the phone's contents.
The real dispute wasn't whether they could search it later.
The question was much earlier in the investigation:
Could they lawfully seize the phone in the first place?
The Facts Matter
One of the recurring themes throughout the podcast is something experienced trial lawyers constantly repeat:
Facts matter.
Tiny factual differences often determine whether evidence is admitted or suppressed.
Andrew carefully walks listeners through what happened.
According to the discussion:
officers responded to investigate an allegation of sexual assault;
the complaining witness believed she had awakened to a bright light and suspected she had been recorded;
investigators knew they wanted to locate a phone;
they arrived at the defendant's residence around 6:30 in the morning;
they had not yet obtained a search warrant;
and they intended to interview the suspect.
Each of those details matters.
None can simply be assumed away.
Defense attorneys spend enormous amounts of time developing factual records because appellate courts rarely decide constitutional issues based upon broad general principles alone.
Instead, they examine exactly what officers knew at the precise moment they acted.
Assumptions Are Not Evidence
One of the most interesting portions of the discussion centers around something that seems almost trivial.
The complaining witness reported seeing a bright light.
Investigators assumed that meant a cell phone.
But was that actually supported by the evidence?
Andrew challenges the detective's assumptions.
Could the light have come from:
a flashlight?
another electronic device?
a tablet?
an alarm?
a notification light?
something entirely unrelated?
The answer is that no one actually knew.
To some listeners, these questions may sound overly technical.
They're not.
They're precisely the type of questions that criminal defense lawyers are ethically obligated to ask.
Because constitutional litigation often turns on whether officers relied upon actual facts—or simply assumptions.
The distinction can determine whether evidence remains available for trial.
Building a Record for Appeal
Andrew Decker makes another observation that many non-lawyers rarely consider.
Sometimes criminal defense attorneys ask seemingly repetitive questions because they are creating a record.
A trial judge hears live testimony.
An appellate court does not.
Months—or years—later, appellate judges will review transcripts to determine whether constitutional rights were violated.
That means every important fact must appear somewhere in the written record.
Defense lawyers therefore ask questions that may seem obvious.
What kind of phone was it?
Did officers know its color?
Its make?
Its location?
Did they actually know there was a recording?
Or were they simply assuming there was?
Those details become incredibly important later if appellate review becomes necessary.
The Fourth Amendment Begins with a Simple Rule
Although Fourth Amendment law has become extraordinarily complex over the past century, its starting point is surprisingly simple.
Searches and seizures inside a person's home generally require a warrant.
That principle protects one of the oldest constitutional interests recognized in American law:
The sanctity of the home.
As Andrew explains, investigators had time before arriving at the residence.
Nothing prevented them from presenting their information to a neutral magistrate.
Had they obtained a warrant authorizing the seizure of the phone from the residence, much of the constitutional dispute would likely have disappeared.
Instead, investigators chose another route.
That decision ultimately became the basis for the motion to suppress discussed throughout the episode.
Warrant Exceptions Are Exactly That—Exceptions
Of course, warrants are not required in every circumstance.
American criminal procedure recognizes several well-established exceptions.
Throughout the discussion, Andrew and Andrew explore some of those doctrines, including:
probable cause,
exigent circumstances,
public view,
consent,
and destruction of evidence.
One important point made during the conversation is that these exceptions are not interchangeable.
Simply believing evidence may exist somewhere does not automatically authorize officers to seize property without judicial approval.
Likewise, merely suspecting evidence could potentially be destroyed is not always enough.
Courts examine the totality of the circumstances.
Was there an immediate emergency?
Did officers create the urgency themselves?
Was there time to obtain a warrant?
Could less intrusive alternatives have been used?
Those questions form the heart of many suppression hearings.
Exigent Circumstances: A Frequently Litigated Exception
Perhaps the most significant legal issue discussed during the episode involves exigent circumstances.
Police often argue that immediate action was necessary because evidence might disappear before a warrant could be obtained.
That argument has intuitive appeal.
Digital evidence can be deleted.
Phones can be wiped.
Files can disappear.
However, criminal defense attorneys frequently challenge whether those concerns actually existed under the specific facts of the case.
As Andrew notes, investigators already acknowledged that forensic extraction tools are capable of recovering recently deleted information from many devices.
If deleted information can often be recovered later, was immediate seizure truly necessary?
That's precisely the type of constitutional question suppression hearings are designed to answer.
Rather than relying on generalized fears, courts should evaluate whether officers possessed specific facts establishing an actual emergency.
Generalized concerns are not always enough to satisfy the Fourth Amendment.
Consent Has Limits
Another valuable lesson from the episode involves consent.
The defendant invited officers inside while he dressed.
But what exactly did that invitation authorize?
Did consent to enter the home also authorize officers to follow him into his bedroom?
Could officers roam throughout the residence?
Could they search other rooms?
Or did consent extend only to entering the front portion of the home while the homeowner put on clothes?
Those questions demonstrate why consent searches remain among the most heavily litigated issues in criminal procedure.
Consent is rarely unlimited.
Its scope depends on what a reasonable person would have understood under the circumstances.
As the discussion illustrates, even seemingly ordinary interactions at the front door can raise significant constitutional questions once criminal litigation begins.
When Consent Ends
One of the most interesting moments in the episode comes after the initial conversation with police.
The officers had already entered the home with permission. They were speaking with the suspect in the living room. At one point, the defendant wanted to step outside to smoke a cigarette.
Before doing so, one of the detectives asked if he could use the bathroom.
The homeowner agreed.
Importantly, he didn't simply say, "Sure."
According to the discussion, he specifically directed the detective where the bathroom was located.
That detail matters.
Consent under the Fourth Amendment is not an unlimited license to search someone's property. It is limited by both scope and purpose.
If someone gives permission to enter a home to use the restroom, does that authorize an officer to walk into a completely different bedroom?
The defense position discussed in the episode is that it does not.
Body Cameras Can Help Everyone
Modern body-worn cameras have changed criminal litigation in significant ways.
While body cameras often provide evidence favorable to prosecutors, they also frequently document constitutional issues that otherwise would never have been discovered.
In this case, Andrew explains that the detective's own body camera became an important piece of evidence.
Instead of proceeding toward the bathroom, the detective allegedly turned around, walked across the residence, entered the master bedroom, disconnected the phone from its charger, and seized it.
Whether that conduct ultimately violated the Fourth Amendment was the central issue before the trial court.
Regardless of how the judge ruled, the body camera ensured that everyone—including the trial judge and any future appellate court—could evaluate exactly what occurred rather than relying solely upon conflicting testimony.
That's one reason body camera footage has become one of the most valuable forms of evidence in modern criminal litigation.
Police Can Sometimes Lie
One portion of the conversation may surprise listeners who have never studied criminal procedure.
Andrew Decker points out that police officers are generally permitted to use deception during criminal investigations.
That statement often surprises defendants.
Many people assume officers must always tell the truth.
The law says otherwise.
Investigators may, under many circumstances, use deception during interviews or investigations.
The discussion highlights the irony that while officers may legally mislead suspects during certain investigative techniques, inaccurate statements made by a suspect are often introduced by prosecutors as evidence of consciousness of guilt.
That doesn't mean deception is always appropriate or persuasive.
It simply illustrates one of the realities criminal defense lawyers confront when evaluating police investigations.
What Does "Seizing" a Cell Phone Mean?
One concept that receives considerable attention during the episode is the distinction between seizing a phone and searching it.
Many people naturally think those are the same thing.
Legally, they are separate events.
The officers did not immediately examine the phone's contents.
Instead, they physically took possession of it.
Only later did investigators obtain a warrant to search the device.
That sequence raises an important constitutional question.
If officers unlawfully seize property first, does obtaining a later search warrant automatically fix the earlier constitutional violation?
Not necessarily.
Defense attorneys frequently litigate whether the later warrant is sufficiently independent of the original seizure or whether the later search remains tainted by the initial illegality.
Those questions frequently arise in suppression litigation involving electronic evidence.
The "Fruit of the Poisonous Tree"
Although neither host turns the discussion into a classroom lecture, Andrew references one of the best-known doctrines in criminal procedure:
The fruit of the poisonous tree.
The principle is relatively straightforward.
If evidence is obtained through unconstitutional police conduct, evidence derived from that illegality may also become inadmissible.
The doctrine exists because excluding only the initial misconduct would often fail to deter unconstitutional investigations.
Suppose officers illegally seize evidence.
If they could simply obtain a warrant afterward and erase the constitutional violation, there would be little incentive to comply with the Fourth Amendment in the first place.
Instead, courts often ask whether later evidence was obtained independently or whether it remains connected to the original constitutional violation.
That question formed an important part of the motion discussed throughout the episode.
Consensual Encounters Aren't Always Voluntary
Another fascinating discussion centers around the concept of a "consensual encounter."
Technically speaking, the defendant was not under arrest.
He had not been handcuffed.
He had not been transported to jail.
The officers described the interaction as consensual.
Yet Andrew raises an important practical question:
How voluntary does an encounter actually feel when multiple officers arrive at your home at 6:30 in the morning, enter your residence, follow you while you dress, and begin questioning you about a felony investigation?
That distinction between legal doctrine and real-world experience is something criminal defense lawyers constantly evaluate.
Courts often analyze encounters through objective legal standards.
Defense attorneys also consider how ordinary people actually experience those situations.
Both perspectives matter.
Why Suppression Hearings Matter—Even When You Lose
Toward the end of the episode, listeners learn the trial court ultimately denied the motion to suppress.
Some might view that outcome as the end of the story.
Experienced criminal defense lawyers know otherwise.
Andrew explains that filing suppression motions serves several important purposes.
First, attorneys have an ethical obligation to raise legitimate constitutional challenges when they exist.
Second, suppression hearings frequently produce valuable testimony that may later become useful at trial.
Third—and perhaps most importantly—they preserve issues for appeal.
Appellate courts generally cannot review constitutional complaints that were never properly raised in the trial court.
That makes suppression hearings essential even when success seems uncertain.
Zealous Advocacy Means Raising Difficult Issues
One of the strongest messages in this inaugural episode has little to do with smartphones.
Instead, it concerns the philosophy of criminal defense itself.
Andrew explains that his goal is to be able to tell every client:
"We've done absolutely everything we can to defend you."
That mindset defines effective criminal defense representation.
Lawyers do not choose constitutional arguments because they guarantee victory.
They pursue them because constitutional rights deserve meaningful advocacy.
Sometimes judges agree.
Sometimes they do not.
But preserving those issues protects not only the individual client but also the development of constitutional law for future cases.
Why This Conversation Still Matters
Although this episode was recorded as the pilot for the Texas Criminal Defense Podcast, the legal questions it raises remain remarkably current.
Cell phones continue to become more integrated into daily life.
Digital evidence plays a role in nearly every modern criminal investigation.
As technology evolves, courts continue balancing two competing interests:
protecting legitimate law enforcement investigations; and
preserving the constitutional privacy rights guaranteed by the Fourth Amendment.
That balance will likely continue generating important litigation for years to come.
For criminal defense attorneys, understanding those constitutional principles is no longer optional.
Digital evidence has become central to modern practice.
Whether representing clients charged with DWI, drug offenses, assault, fraud, child pornography, sexual assault, or homicide, smartphones frequently become one of the most important pieces of evidence in the case.
Understanding how those devices may be lawfully seized—and when they may not—is therefore an essential skill for every criminal defense lawyer.
Final Thoughts
It is fitting that the Texas Criminal Defense Podcast begins not with a discussion of famous cases or dramatic courtroom victories, but with a thoughtful examination of constitutional procedure.
The Fourth Amendment is often described as one of the cornerstones of American criminal justice.
Yet its protections rarely receive public attention until they affect someone's own life.
This episode demonstrates what criminal defense lawyers actually do every day.
They scrutinize investigations.
They challenge assumptions.
They question whether officers followed constitutional procedures.
And when necessary, they ask courts to suppress evidence obtained in violation of those constitutional protections.
The pilot episode also establishes the tone for the series itself.
Rather than delivering abstract legal lectures, Andrew Herreth and Andrew Decker invite listeners into the conversations that occur after hearings, between court appearances, and inside criminal defense offices across Texas.
Those conversations are often where legal strategy develops.
They are also where listeners gain the greatest insight into how experienced criminal defense attorneys think.
Whether you're a practicing lawyer, a law student, or simply interested in constitutional law, this first episode provides an excellent introduction to the kinds of legal issues that shape criminal litigation every day.
Key Takeaways
The Fourth Amendment generally requires a warrant before police search or seize property inside a home.
Cell phones contain vast amounts of personal information, making constitutional protections especially important.
Small factual details often determine whether evidence is admitted or suppressed.
Consent to enter a home does not necessarily authorize officers to search every room or seize property.
Body camera footage has become one of the most valuable tools for evaluating police conduct during criminal investigations.
Seizing a cell phone and searching its contents are legally distinct events that raise separate Fourth Amendment questions.
Suppression hearings preserve important constitutional issues for appellate review, even when the trial court denies the motion.
Effective criminal defense requires questioning assumptions, building a thorough factual record, and zealously protecting constitutional rights at every stage of the case.
Andrew Herreth 0:03
Hello, everybody. This is Andrew Herreth. I'm here with Andrew Decker. We're talking today. This is Texas Criminal Defense Podcast. Andrew, what's up, man?
Andrew Decker 0:13
All right. So this is our pilot. We have never done this before. We started this out basically as a "What do you want to do? Hey, you want to try to start a podcast? And because we are two criminal defense attorneys, we decided let's start a podcast on criminal defense, particularly in the state of Texas where we practice.
Andrew Herreth 0:31
That's right. I mean, we we talk about it anyways, right? All day long, every time we're together, may as well record these conversations, right?
Andrew Decker 0:37
Right. Exactly. So so we're two friends discussing a topic we hold in common, we like hanging out, so we are professional attorneys. But you will find very quickly we are amateur podcasters. So hopefully the podcasts get better over time as we learn. But now at this point, I'm ready to hear our first pilot episode. Let's
Andrew Herreth 0:57
get to it. All right,
Andrew Decker 0:58
let's give it a go.
Andrew Herreth 1:03
Good afternoon. This is Andrew Herreth. I'm here with Andrew Decker, and we're talking today about Texas criminal defense. Andrew, what's going on, man?
Andrew Decker 1:12
Well, Andrew, I understand that you had a motion to suppress this morning on a on a on a cell phone issue.
Andrew Herreth 1:19
That's right. That's right. So my guy, the cell phone, the evidence found on the cell phone is is crucial to the state's case. The cell phone was seized from his home without a warrant. Now, the detective later on got a search warrant for the contents of his phone.
Andrew Decker 1:41
Okay, so hold on. So we're not talking about a seized phone that they opened up without a warrant.
Andrew Herreth 1:49
That's right.
Andrew Decker 1:50
So where's the issue? Where's the warrant issue?
Andrew Herreth 1:52
So the the issue is the phone itself was seized from my client's bedroom without a warrant. My argument was without probable cause, without exigent circumstances, and it did not fall within the public view doctrine, which the police could use that as another exception to the warrant requirement. So it was kind of interesting. The the officers are at my client's house very early in the morning, like 630 in the morning. It
Andrew Decker 2:31
is early.
Andrew Herreth 2:32
Yeah, the my client has no idea what's going on. He invites them in to his house, but he's not dressed. He's just in his underwear because he, you know, guess what? He just woke up, and he he goes back. He says, "Hold on a sec, I'm going to go change, and he goes back to his room.
Andrew Decker 2:50
Okay, so he wants to get dressed for the day because he's got people in his house. Well, now
Andrew Herreth 2:55
he has guests.
Andrew Decker 2:57
We'll call the officers guests at this point. Yeah, yeah. If you have guests in your house at 630 in the morning, you think that putting on clothes is a reasonable option,
Andrew Herreth 3:08
right? Hanging out in your drawers with some people you don't know may not be appropriate.
Andrew Decker 3:13
You know we're from Texas because we use words like draws to describe underwear. Do we know if there are boxers or briefs?
Andrew Herreth 3:20
They were a combination of the two boxer briefs.
Andrew Decker 3:22
Okay, all right. It's important facts to know. So, again, how do we get to a phone?
Andrew Herreth 3:28
Yeah. So there was an allegation made that he was recording somebody and he shouldn't have been recording them. They were saying, "Hey, that they were using a phone. They woke up. There was a light in their eyes.
Andrew Decker 3:43
The other person said this. The
Andrew Herreth 3:44
other person, yeah. Okay. Let's call them the complaining witness. The
Andrew Decker 3:48
injured party. The
Andrew Herreth 3:49
injured party. Yeah. Allegedly.
Andrew Herreth 3:51
Right. And and so the officers go to this house knowing that they're going to be they're going to be getting a phone or they have evidence that there was maybe something recorded on a phone. They're not real sure what kind of phone. They don't know the the type of phone: iPhone, Android, nothing like that. They don't know the color of it. They don't know the dimensions of it. If it's a tablet or a phone, they're just operating off of this one vague statement from this injured party,
Andrew Decker 4:24
who says that they saw someone recording. What did they? What did the injured party say they saw?
Andrew Herreth 4:29
Yeah, not even that. Just that they woke up to a light in their eyes, and they assumed from that that my guy was recording them.
Andrew Decker 4:38
Well, what if your guy just wants to be able to see because it's dark.
Andrew Herreth 4:41
That's what I brought up.
Andrew Decker 4:43
Okay,
Andrew Herreth 4:43
I said it could have been a flashlight, right? It could have been. We don't know if that was an LED light or an incandescent bulb. It was a light, and any number of devices can create light.
Andrew Decker 4:56
Some people's phones light up if they're ringing.
Andrew Herreth 4:59
Yeah, and I'm. Sure, people who are listening to this are like you guys are just such jerks. But it's really important to get this stuff out on the record so that the people who are reading and grading the papers later on down the road, like a court of appeals, understands what exactly we're talking about.
Andrew Decker 5:14
Right, and as defense attorneys, we know that often our papers are failing grades, regardless of how well we write.
Andrew Herreth 5:20
That's right.
Andrew Decker 5:21
So
Andrew Herreth 5:21
without a doubt.
Andrew Decker 5:22
So it's it's very important to make sure we've got good facts, not just good facts for our clients, but facts that are accurate to the event.
Andrew Herreth 5:31
Right, and it's very important in this instance to get out exactly what the detective knew or was told or had learned through his investigation, so just making an assumption from the stand, like, well, yeah, the defendant, whomever was was recording with a phone. Well, that's that's a huge assumption. I mean, that is a big jump to a conclusion. It could have been. It didn't have to be a recording, didn't have to be a phone. It really could have been anything, and so we I think were able to bring that out that the the detective did not know for sure if he was dealing with a phone. He didn't know for sure if it was a phone, what kind of phone it was, if there was a recording on the phone or not,
Andrew Decker 6:19
and if it's the phone in question, even if it is a phone,
Andrew Herreth 6:22
that's right. If if my if the guy had multiple devices in his house, we don't know that. If it was one in his car, if you know, if he had tablets, if he had anything else, really. So we made an assumption.
Andrew Decker 6:37
So let's back up just a little bit. Why did the officers go to his house at 6:30 in the morning. What were they there for?
Andrew Herreth 6:44
Yeah, they were investigating a sexual assault. There was the the injured party made an outcry that she woke up to my client having sex with her. She woke up because the light was flashing in her eyes. So they knew that my client, they knew his name, they knew where he lived, and they were on the look for a phone for that evidence that that could prove one way or the other. Well, did
Andrew Decker 7:08
they did they announce that they were looking for a phone, or were they just looking to talk to him?
Andrew Herreth 7:12
Oh, they were just there to interview to interview the the the accused in this case.
Andrew Decker 7:17
They had not spoken to a neutral magistrate, had they yet, Andrew?
Andrew Herreth 7:23
No, no, no, no, no, and that and that's another thing we talked about. Like there was plenty of time before they got over to my guy's house to go and write up what they knew at that point, get a search warrant for the home, and if they did so, we we would not have been contesting the seizure of the phone at that point, you know, like that. Getting a warrant from a magistrate kind of clears up a bunch of questions and issues,
Andrew Decker 7:49
because that would be a Fourth Amendment issue.
Andrew Herreth 7:52
Correct.
Andrew Decker 7:52
That basically no no property can be searched or seized without probable cause, as illustrated in a search warrant, correct?
Andrew Herreth 8:03
That's right.
Andrew Decker 8:04
Okay.
Andrew Herreth 8:04
That's right.
Andrew Decker 8:05
All right. So, so constitutional issues, big big stuff,
Andrew Herreth 8:09
big time. Thomas Jefferson
Andrew Decker 8:10
kind of stuff.
Andrew Herreth 8:11
Yeah. No, that's that's absolutely right. I mean, there are certain exceptions to the warrant requirement. I mean, obviously we default to requiring a warrant, but there there are some exceptions. Notably, the you know if they can claim what public view exigent circumstances, and usually see that with like whenever there's contraband that they're concerned about being destroyed, being tampered with, having that evidence just no longer available later at trial. But
Andrew Decker 8:47
a phone is not generally considered contraband, is it?
Andrew Herreth 8:50
No, no. A phone by itself is not considered contraband.
Andrew Decker 8:54
Okay, so again, they're there to interview a guy, and they knock on his door. Does he Kate? Does he say, "Come on in"
Andrew Herreth 9:05
Well, so it's kind of interesting because he does. He he like he's like, "Well, hold on a sec. I need to get some clothes on. But he leaves his door open, and then the officers kind of call after him, like, "Well, can we come in? And he's like, "Oh yeah, sure. So the officers, you know, I think any normal person would take that to mean come on in, but wait in the living room, right? If if I've got a salesman at my door and I'm in like a bathrobe and I'm like, yeah, sure, come on in, but I'm gonna go put some clothes on, that salesman then is not allowed to follow me into my bedroom and watch me dress, which is what happened here in this case, yeah, that would be
Andrew Decker 9:41
awkward for everyone,
Andrew Herreth 9:42
everybody involved, and it was extremely awkward for my client. You can tell from the video.
Andrew Decker 9:47
But in the officer's defense, if they believe there's evidence that he might be destroying,
Andrew Herreth 9:53
right,
Andrew Decker 9:54
they might want to follow him to make sure that he's not tampering with evidence,
Andrew Herreth 9:59
right? So. If they have some credible evidence that my client may destroy something pertaining to this case, but it's important to note the police cannot justify that warrantless search, that intrusion into your life on the basis of exigent circumstances of its own making. So just because they have some notion, or they think like, hey, you know, items on a phone are easily deleted. One, everything that on your phone that's deleted can be recovered for the most part.
Andrew Decker 10:38
Right. That's called. They do that. What what you and I know is to be a phone dump.
Andrew Herreth 10:42
Yeah, right. They they plug it into this to this machine. It's very expensive, very high tech machine. It can recover. I love high tech machine. I know, I know. Fancy terms. Crazy. I think that I think that's in the in the legal term in the case law. But they can recover recently deleted items. The officer testified to that. Yes, I know that the machine that we use can recover recently deleted items. So there's really no concern there. And then obviously they did not have any other evidence besides his own suspicion that this is going to be that this is going to be destroyed. And I think that's just such a convenient suspicion to have. You don't have a
Andrew Decker 11:26
well
Andrew Herreth 11:27
credible evidence to back that up.
Andrew Decker 11:28
Had they told your your client at the door, "Hey, we're here investigating a sexual assault, or they say, "Hey, we have something we need to talk to you about.
Andrew Herreth 11:38
Yeah, that one. I mean, so they they eventually they get there, but they're like, "Well, we just have some questions for you. And he's like, "Okay, let me let me put some clothes on. And then, and then they let him. You know, he let him in. They walk back there. They see the phone on the floor of the master bedroom. So
Andrew Decker 11:52
they had not alerted him to their to their exact reason
Andrew Herreth 11:57
until as he was
Andrew Decker 11:58
going back to let's say put on some jeans and a T-shirt, right? So, if if let's say that your client might have also and and I we have no reason to believe this, but but let's put it let's put him in a guilty conscience somewhere has has has a couple of ounces of marijuana, not quite two ounces of marijuana. He might want to go flush that down the toilet, but that's not why they're there. So even if he if he tampered with that evidence, that's not what they're looking for,
Andrew Herreth 12:30
right?
Andrew Decker 12:31
But that could get him in trouble for tampering with with evidence either way. Yeah,
Andrew Herreth 12:34
yeah, exactly.
Andrew Decker 12:35
Okay, so
Andrew Herreth 12:37
yeah, so they so they eventually wind up in the living room talking about the case, and my guy's like, "What are you guys talking about? And I'm like, "Well, what'd you do this evening? Like, I went out for some drinks. Like, okay, where? You know, like I mean, try to be as specific as possible. And he's like, "Can you just tell me what's going on? And it goes back and forth like that. Like, I don't
Andrew Decker 12:56
want to tell you. You don't tell me. Yeah. Right. Well,
Andrew Herreth 12:58
what are we really doing here? And finally, they say, "Well, there's been an allegation of sexual assault that that you know the girl that you were with said you had sex with without without her consent, and and so we you know they just kind of get into the story that way. So eventually they do let them know what's going on. The kicker is, they at some point my guy wants to go smoke a cigarette on his porch. He asks both the the detective and the officer that's with him to step outside, and while they're exiting the door, the detective says, "Hey, can I use your bathroom? And my guy says, "Hey, yes, anybody because it's now
Andrew Decker 13:38
like 7o'clock in the morning. People need to pee.
Andrew Herreth 13:41
Right. Right. Right. Morning coffee time. Right. So my guy says yes, absolutely. It's down this hallway. Points with his left hand to the left side of the of his house. Second door on the left is where the bathroom is. Feel free to use the bathroom. We'll be outside. I'm going to be smoking. Okay.
Andrew Decker 13:59
So he's given the officer permission to use a specific room,
Andrew Herreth 14:03
correct,
Andrew Decker 14:04
and basically directed him how to get there, and then you would presume how to get back,
Andrew Herreth 14:09
correct.
Andrew Decker 14:09
Okay,
Andrew Herreth 14:10
yep, and in the and the officers has a body cam. The detective has a body cam on. You see on the body cam video that he the officer the detective does not even make it to the bathroom. He turns abrupt about face, 180 degree turn around and walks very quickly. No, wait a
Andrew Decker 14:30
second. There's something important here, Andrew. The officer lied.
Andrew Herreth 14:37
Yes, yes.
Andrew Decker 14:38
And and often I don't know about you, but often I have clients that go the off the the the officer lied to me.
Andrew Herreth 14:44
Yeah, and that's
Andrew Decker 14:46
that that's completely permissible. Correct?
Andrew Herreth 14:48
It is permissible, but incredibly, it is.
Andrew Decker 14:50
But if your client would have said, "I went to even a different bar than the one that he actually went to, that would be used against him in court. Absolutely,
Andrew Herreth 15:00
yeah. It would have been probably like incredibly damning for our case if he's lying about who he's with, where he's at, anything like that. He's not. He's not lying about any of that when talking with the officer.
Andrew Decker 15:12
But the officer lied.
Andrew Herreth 15:13
The officer lied. Yes.
Andrew Decker 15:15
And didn't go where he had consent.
Andrew Herreth 15:17
Right.
Andrew Decker 15:18
Huh. Okay. Continue.
Andrew Herreth 15:19
So he does an about face, right? He he makes it doesn't even make it into the bathroom. Thankfully, him. I'm glad we
Andrew Decker 15:26
didn't catch that on body. Yeah,
Andrew Herreth 15:27
exactly. That's exactly what I was going to say. Walks to the opposite end of the house. So we're talking through the living room, through the kitchen, into the master bedroom. Walks over to where the phone, this this phone that he saw earlier was laying unplugged it, took the charger and the phone, and never gave it back to my client.
Andrew Decker 15:49
In legal terms, seized he
Andrew Herreth 15:51
seized the phone. That's right.
Andrew Decker 15:54
Well, we don't know that it's evidence yet.
Andrew Herreth 15:56
Well, he seized that phone. Right.
Andrew Decker 15:58
Right.
Andrew Herreth 15:58
Yeah. And at some point in time later, then files a search warrant for the phone, but the as they say, the the taint it was not attenuated enough. I think, in my opinion,
Andrew Decker 16:12
some some people call it fruit of a poisonous tree.
Andrew Herreth 16:15
That's right.
Andrew Decker 16:16
Okay, so so let me ask a couple of questions, a couple of follow-up questions. The often we have clients who who lose their phone to the police upon arrest.
Andrew Herreth 16:36
Yes, sure.
Andrew Decker 16:38
Your client wasn't arrested that morning, was he?
Andrew Herreth 16:40
No.
Andrew Decker 16:41
Was he even taken into custody?
Andrew Herreth 16:42
No.
Andrew Decker 16:43
Was he detained in any form?
Andrew Herreth 16:44
Well, I mean, other than having the officers there in his house and he can't get ready for work, but no, he was not like lawfully detained. It was just what we call a consensual encounter, if you will.
Andrew Decker 16:56
Right, because it's always consensual when an officer comes in.
Andrew Herreth 16:59
630 in the morning. 630
Andrew Decker 17:00
in the morning. That's always it. Feels very consensual,
Andrew Herreth 17:03
right? Right. It feels like you have a choice. And in fact, when my guy is putting on clothes in the master bedroom, he turns around and he sees. He actually walks further into like his bathroom area so that he can have some privacy. I mean, at that point, he's got one uniformed officer and one street clothes detective with guns, with body cam, basically saying like, "Sit down. We need to talk. You know, he feels. I imagine that he feels like he does not have much room to wiggle here.
Andrew Decker 17:34
He might feel detained.
Andrew Herreth 17:35
Oh, absolutely. Yeah.
Andrew Decker 17:36
Right.
Andrew Herreth 17:36
Absolutely. But most people in that situation, feel detained, except for I think the the courts. The courts just don't see it that way a lot of the time.
Andrew Decker 17:49
Right, right. At some point, we'll talk about my wife being the most reasonable person and how she answers these questions exactly like the Supreme Court. It's kind of creepy. We'll bring in witnesses on that as well if you want. I
Andrew Herreth 18:03
think we will need some.
Andrew Decker 18:04
It's it's amazing. So so basically, they have an injured party who says, "I think I was being recorded without my consent on a phone, based on a bright light in my face, they know that whoever the other that that that if there was a recording, it was by your client.
Andrew Herreth 18:29
Right
Andrew Decker 18:29
within a few hours of the of the alleged injury, the alleged sexual assault, they're at your your client's house 630 in the morning, and they see a phone.
Andrew Herreth 18:44
Correct. Yep.
Andrew Decker 18:46
And they take it.
Andrew Herreth 18:47
That's right. That's right. So if
Andrew Decker 18:50
if I came into your house and did that, even if I thought your phone had pictures of me, you know, doing something that that I'd find maybe embarrassing,
Andrew Herreth 19:02
or without, or maybe was taken without your consent, right? Right. Basically, visual recording or something like that. Right.
Andrew Decker 19:06
Right. That would be theft, correct?
Andrew Herreth 19:09
Oh yes.
Andrew Decker 19:10
And and if I remember correct, correct me if I'm wrong, because I know you're a legal scholar. According to the Texas Code of Criminal Procedure, illegally obtained evidence cannot be used against you in court. Correct?
Andrew Herreth 19:25
I mean that's yes, that's right, that's right, and that's that's why we're basing. I mean, we're we're we're asking the court to keep that evidence out because it is illegally obtained. I mean, if there's no if they're seizing it without a warrant and there's no probable cause, it's not. It doesn't apply, or it doesn't fall under the public view doctrine. And there's no exigent circumstances. Then there's no exception to the warrant requirement.
Andrew Decker 19:48
All right, very cool. So how did when did will you find out, or how did it turn out for you this morning?
Andrew Herreth 19:54
Well, you know, tomorrow is is a holiday. It's it is in front of Joe. Craig Towson, very good judge here in Parker County, and and so we expect a ruling back sometime next week. But a lot of times, Andrew, I know you you understand this that the judges don't make a ruling right then and there. They need some time to digest the information. I had a brief for the court to to read with the with the case law that supports my argument. The state handed over a number of of cases. One was unpublished, which I thought was interesting, but the judge wanted some time to digest that information, go over his notes and the record from from the hearing today before he makes a ruling.
Andrew Decker 20:39
All right. Well, it'll be interesting to see how that turns out, and we will, I'm sure, have more search and seizure discussions in the days to come. I
Andrew Herreth 20:50
hope so.
Andrew Decker 20:50
All right. Well, all right. So, Andrew, that was our first podcast, our pilot. Have you gotten a ruling on that motion to suppress?
Andrew Herreth 21:00
Yeah, the motion got denied by the judge, but you know, it was an issue that had to be brought up. It's an issue that I I think the judge made the wrong decision on. I think I was right in the law, but frankly, a lot of times you know this we're raising issues to so that our client you know if it doesn't go our way in trial, has something on appeal that he can write about, and that that's really important. No matter if we are if if we end up with a with a victory or not,
Andrew Decker 21:32
and we're also just making sure we zealously advocate for our clients.
Andrew Herreth 21:36
Yeah, I mean, at the end of the day, I want to be able to tell my client we've done absolutely everything we can to defend him in this charge.
Andrew Decker 21:45
All right, so ladies and gentlemen, that brings us pretty much to the end of this pilot event. You can find us at TexasCrimDefense.com. You can find us on iTunes. Like us, subscribe. How do they just
Andrew Herreth 22:02
leave us a rating and review, and our contact information is on our website if you want to learn more about us or reach out to us in any way.
Andrew Decker 22:09
Also, next time on July 15, as we drop these on the first and the 15th of each month, I, Andrew Decker, will be interviewing my comrade Andrew Herreth, so you can know a little bit more about him. We will see you
Andrew Herreth 22:23
then. Thanks, y'all.
