New Austin rules on homelessness, street camps test police power to search
Austin police are trying to figure out what kind of additional steps they will need to take to search tents and other shelters used by people experiencing homelessness, especially as their camps become larger and more sophisticated.
During a public forum Tuesday, Police Chief Brian Manley said patrol officers are coming across street camps in places they weren’t before, in greater numbers and in more elaborate shelters after the Austin City Council in late June voted to allow camping, sleeping and sitting in public spaces, provided it does not obstruct a pathway or pose a danger. Those rules went into effect July 1, leading police to do some soul searching about privacy for people without a place to call home.
Manley said the question is not necessarily a new one, but now that people experiencing homelessness are allowed to camp in public, officers have to draw the line between public and private spaces.
“Just like we need to get a search warrant to enter people’s homes searching for evidence, we have to understand the threshold for when someone’s encampment or structure (would) potentially reach that same threshold so we’re not violating the law in searching for and seizing evidence,” Manley said.
Jennifer Laurin, professor of law at the University of Texas of Austin, said courts across the country have reached different results when considering whether a warrant is required to search tents.
“There’s at least some support for the proposition that even before the change in the ordinance, police may have needed a warrant to be searching tents, but I think it’s fair to say that if an individual whose tent was searched without a warrant were to litigate the question now, that the argument is stronger, given that the law now makes their presence legal,” she said.
But even slight changes to structures could spell the difference between needing a warrant or not. Laurin said the Fourth Amendment, which protects citizens against unlawful search and seizure, draws a distinction between anything that is done in public, as opposed to something that has been done in private.
Small changes in details can lead courts to view cases in different ways. For example, if an officer pulls over a car that has drugs inside, whether the drugs were in plain view, in an open compartment or a locked compartment can lead to different results.
“If what is being searched would be characterized as ‘in public,’ then that would probably mean that Fourth Amendment requirements wouldn’t apply,” she said.
Laurin said courts aren’t really even sure how to think about the issue. One way would be to say that if a tent is being used as a home, it should be treated as such. More generally, courts could consider whether a person has a reasonable expectation of privacy in whatever dwelling they are occupying.
“The last thing we would want is to conduct a search and obtain evidence that then would be suppressed in a subsequent court hearing because the search was deemed illegal,” Manley said.
Dayna Blazey, a member of the Travis County district attorney’s office who handles grand jury cases, said she hasn’t had any discussion about the issue with law enforcement since the new rules went into effect. However, in past discussions she has expressed the opinion that officers do need a warrant to search the tent of a person experiencing homelessness.
“I think they have a reasonable expectation of privacy in their tent,” she said.
She, too, however, said certain facts, like items being in plain view, could change that.
“I don’t think we have a clear-cut legal decision from the courts on how to look at these issues,” Blazey said. “Therefore, my default is kind of to provide conservative legal advice — that being that they could have an expectation of privacy, and therefore a search warrant would be necessary to search a tent.”
By Mark Wilson