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May 05
Love3
Police Knock and Talk Danhach 2016

Knock and Talk Interview Still a Lawful Way for Police to Enter a Premises

By Theft

Police Knock and Talk Danhach 2016“Knock, knock!”

“Who is there?”

“The police and the FBI, may we come in please?”

There is a knock at the door. You look out your peep hole and see law enforcement. Do you have to open your door? If you open your door, do you have to let them in? What if they don’t have a warrant, but ask nicely and start talking to you? If you give consent to law enforcement to enter your home, can evidence seized be used against you in court later on?

This article is a summary of United States v. Danhach, a case recently decided in the US Court of Appeals for the 5th Circuit.

Evidence is Seized After Police Politely Ask If They Can Come Inside.

The Houston Police Department and the FBI had been investigating Sameh Danhach and his business associate for possible involvement in organized retail theft. As part of the investigation, law enforcement began surveilling a warehouse that Danhach had been seen entering on multiple occasions and to which a car used in stealing over-the-counter drugs and expensive baby formula had been linked. After several weeks of surveillance, law enforcement approached the warehouse and knocked on the door. Danhach’s business associate permitted the officers to enter, as surveillance cameras rolled capturing the entire conversation.

The officers saw trash bags full of merchandise and other indicators of stolen goods out in the open. Citing this evidence in a probable cause affidavit, law enforcement obtained a search warrant and seized the evidence for trial. Danhach was charged with conspiracy to transport stolen goods in interstate commerce and also with aiding and abetting the interstate transportation of stolen OTC medication and baby formula, violations of 18 U.S.C. § 371 and 18 U.S.C. § 2314, among other charges.

At trial, the jury found Danhach guilty on all counts and the judge sentenced him to 151 months in prison and a three year term of supervised release. Danhach appealed.

The Knock and Talk Procedure, the Plain View Doctrine and Consent Collide.

Courts have recognized the “knock and talk” technique as “a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); Kentucky v. King, 563 U.S. 452, 469 (2011). Evidence may be cited in support of a search warrant if (1) law enforcement entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was immediately apparent; and (4) law enforcement had a lawful right of access to the item.” United States v. Jackson, 569 F. 3d 236, 242 (5th Cir. 2010).

However, if for some reason the “plain view” doctrine does not stand up to the facts of a case, then “consent to enter” may be an alternative argument, but “the government must demonstrate that there was effective consent that was given voluntarily by a party with actual or apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

The Big Issue Before the Fifth Circuit was Whether Officers Lawfully Entered and Remained Inside of Danhach’s Warehouse While Conducting a “Knock and Talk” Interview.

Here, the Fifth Circuit agreed with the district court and affirmed judgment and sentencing, holding that law enforcement permissibly used the knock and talk technique. The Court pointed out that video surveillance is consistent with law enforcement’s account that consent was obtained before entering. Even after law enforcement entered, Danhach’s business associate gave them permission to walk around the warehouse. The stolen goods were in plain view and were immediately apparent and indicative of criminal activity. Based on this series of events, “even if any evidence cited in the warrant…was not covered by the plain-view doctrine, the record supports the conclusion that the agents asked for and received consent for a full search of the warehouse.” Danhach did not offer any evidence to show that the consent was coerced in any manner, nor did he offer any evidence that the items seized were not in plain view.

Consent to Search + Items of Criminality in Plain View = Probable Cause to Obtain a Warrant

In sum, law enforcement may ask to enter a premises without a warrant and if consent is obtained from a person who is “in charge” or who looks to be “in charge,” then that consent is sufficient according to the Fifth Circuit, citing previous cases. Once lawfully inside a dwelling or premises, if law enforcement officers see, in plain view, objects that are linked or are seemingly linked to a crime, then those items may be the basis of a warrant to seize the items and to conduct an even more extensive search.

May 03
Love2
Juvenile Sex Offender Conditions

Strict Monitoring of Juvenile Sex Offender Internet Usage is a “Heavy Burden,” says Fifth Circuit

By Sex Crimes

In United States v. Sealed Juvenile, the 5th Circuit Court of Appeals discusses how much oversight is too much when it comes to juvenile sex offenses.

Juvenile Sex Offender ConditionsPlease note: This article discusses sexual abuse of a child. Generally speaking, the reason the court system treats juveniles differently from adults is because of the hope of rehabilitation and restoration of the juvenile offender to society. With everything from school to job searching on the internet these days, should juvenile sex offenders be able to be on the internet? Is strictly monitoring a juvenile sex offender’s internet usage, down to the keystroke, an imposition on constitutional rights, or is society providing oversight to a juvenile defendant with the hope of rehabilitation?

A Juvenile Sexual Assault Occurs on a Military Base

While living with his family on a military base, a fifteen-year-old sexually assaulted a four-year-old. He was charged with violating 18 U.S.C. §§2241(c), 5032 (2012), “engaging in a sexual act with a person who had not attained the age of 12 years.” The juvenile defendant had a history of psychiatric illnesses, such as Oppositional Defiant Disorder and Bipolar disorder. He had a pattern of sending sexually explicit letters to classmates at school. Before sentencing the district court ordered a probation officer to render a special report, which concluded, “in the last year the juvenile’s problems transformed from being anger-oriented to being sexually-oriented.” In a plea agreement, the juvenile pleaded guilty to a lesser offense of “abusive sexual conduct with a minor who had not attained the age of 12 years,” violations of 18 U.S.C. § 2244(a)(5) (2012) and §5032.

The District Court Imposes Strict Sex Offender Conditions to Probation

The district court deemed the defendant a “juvenile delinquent” and sentenced him to eighteen months in a juvenile treatment facility and a term of juvenile delinquent supervision until he turned twenty-one. Further, the district court imposed four special conditions to his supervision

  1. a restriction on the defendant’s contact with children,
  2. choice of occupation,
  3. prohibition on loitering in specific places, and
  4. the use of computers and internet.

The juvenile appealed to the Court of Appeals for the Fifth Circuit, arguing that the district court had not provided adequate reasons for imposing the special conditions at the sentencing hearing, and failed to explain how the special conditions were reasonably related to the offense.

Under 18 U.S.C. § 3563(b), courts may place discretionary conditions on probation, so long as the conditions are reasonably related to the factors set forth in such deprivations of liberty or property and are reasonably necessary. In doing so, the sentencing court must consider the nature and circumstances of the offenses and the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)(2) (2012).

The Big Issue Before the Fifth Circuit | Were the Special Conditions of Probation Reasonably Related to the Offense?

The big issue before the Fifth Circuit was whether the conditions imposed by the district court were reasonably related to the offense, and if so, were they reasonably necessary. Did the district court provide adequate reasons for imposing the four special conditions? As the case was a matter of first impression, the Court examined each special condition and concluded in a surprising manner with regard to the internet and computer use.

Condition One: Restriction on Contact with Children

Under the first special condition, the juvenile was “not to have contact with children under the age of sixteen without prior written permission of the Probation Officer.” Further, he was required to “report unauthorized contact with children to the Probation Officer.” On appeal, the juvenile argued that this special condition was a “much greater deprivation of liberty…than reasonably necessary.” However, the Court disagreed with the juvenile. “Considering the threat posed by the juvenile based on his conviction [and other noted behaviors on record], we affirm this condition.” Also noting that the juvenile could attend school with permission of the Probation Officer, the Fifth Circuit agreed with the lower court.

Condition Two: Choice of Occupation

Under the second special condition, the juvenile was “restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer.” On appeal, the juvenile argued that the special condition was not reasonable and necessary because the offense was not related to work and that he would run a risk of never being able to be employed. The Court disagreed because the juvenile would be able to work upon prior permission from his Probation Officer. The Court affirmed the district court’s condition.

Condition Three: Prohibition on Loitering in Specific Places

Under the third special condition, the juvenile was not to “loiter within one-hundred feet of schools, parks, playgrounds, arcades, or other places primarily used by children under the age of sixteen.” The juvenile argued that the special condition was not reasonably related to his offense because his offense did not occur at a school. The Court disagreed. “The juvenile’s history of sending sexually explicit letters to girls at school means that he poses a threat to children at school.” The Fifth Circuit affirmed the lower court’s special condition.

Condition Four: Computer and Internet Use

Under the fourth special condition, the juvenile was (1) not to possess a computer with internet access without the prior approval of the Probation Officer; (2) to submit to searches under the direction of the Probation Officer that could include software scans of his technological devices; (3) to consent to a key logger on his personal devices and to consent to a search of each internet query; (4) to inventory and to provide receipts for all devices and bills pertaining to the internet and technology.

The juvenile argued that the restrictions on his computer and internet use were not reasonably related to his offense, and that the special condition would prevent him from job searching, completing homework, and emailing his therapists. The juvenile argued that even though he could access the internet, to do so would place a heavy burden on him to request permission each time he accessed the internet, or to report any misstep such as an errant search or a “pop up” on the internet.

The Fifth Circuit points out that the juvenile is mentally ill and needs some internet oversight. “We affirm the monitoring provisions because we recognize [they] ensur[e] that the juvenile complies with the restrictions against accessing sexually explicit materials.”

However, the Fifth Circuit agreed with the juvenile on some of the internet and computer usage restrictions. “We must recognize that access to computers and the Internet is essential to functioning in today’s society.” The Fifth Circuit ordered the district court to construe the special condition so that the juvenile does not have to request permission from a Probation Officer each time he accesses the internet, removing what the Court deemed “a heavy burden” on the juvenile. Next, the Court modified the special condition that required the juvenile to provide receipts and payment records to the Probation Officer, “because the purpose is to verify that there have been no payments to an internet service provider, and payment for proper use should be made by the juvenile…there is no other basis to justify the restriction imposed by the [special condition].”

In sum, while the Fifth Circuit mostly affirmed the district court’s holding, it made some significant modifications where technology is concerned. Speaking to the hope of future rehabilitation, the Court added, “the juvenile may seek modification to any of the conditions, and the district court may lessen the burden of the [special conditions] if [his] behavior improves over time.”

Apr 29
Love5
Failure to Maintain a Single Lane of Traffic DWI Attorney Fort Worth

Failure to Maintain a Single Lane of Traffic Leads to a DWI Conviction

By Reasonable Suspicion

Does an Officer have “Reasonable Suspicion” to Make a Traffic Stop When Vehicle Weaves Inside a Traffic Lane?

Failure to Maintain a Single Lane of Traffic DWI Attorney Fort WorthJames Leming was convicted of DWI after erratic driving alarmed fellow motorists to call police. On January 20, 2012, a citizen filed a report of a “swerving Jeep” and Officer Manfred Gilow responded. As the dashboard camera confirmed, the Jeep traveled thirteen miles under the speed limit; Gilow followed the Jeep for several miles. Officer Gilow observed the Jeep, “drifting [within the] lane to the left [with] tires on the stripes… back to the right, almost hit[ting] the curb twice.”

Officer Gilow said he did not stop the Jeep immediately because the heavy traffic made a traffic stop unsafe at the time. He wanted to wait until the Jeep approached “the 3000 block because I knew there’s parking lots where he could pull over [safely].” Gilow justified the warrantless stop under the Community Caretaking Exception, “due to the …[low] speed…and…swerving, it was an indication that the driver [was] somehow either distracted or physically not able to operate [his] motor vehicle carefully.”

Eventually, the officer pulled Leming over, noting on the police report, the smell of liquor. Though Leming denied drinking, he said he had taken some prescription pills. Officer Gilow conducted field sobriety tests and placed Leming under arrest for DWI.

Read the full opinion in Leming v. State.

Leming’s DWI Trial and Motion to Suppress the Stop

Before the trial began, Leming filed a motion to suppress the traffic stop, which was denied. At trial, Leming pled guilty to and was convicted of DWI. Because Leming had two prior DWI convictions (a felony under Texas law), the court assessed punishment at ten years’ imprisonment. Tex. Penal Code § 49.09(b)(2).

The Sixth Circuit Court of Appeals reversed the trial court’s ruling, holding that the trial court should have granted the motion to suppress. Leming v. State, 454 S.W.3d 78 (Tex. App.—Texarkana 2014). The Sixth Circuit concluded that Gilow lacked reasonable suspicion to detain Leming for the offense of failure to maintain a single lane under Section 545.0600(a) of the Texas Transportation Code. The court reasoned “in order for it to have been unlawful, the encroachment must have been made unsafely; [here,] there was no real danger of his colliding with another vehicle in an adjacent lane.” The State’s Prosecuting Attorney petitioned the Court of Criminal Appeals for discretionary review, arguing that the citizen’s report coupled with Officer Gilow’s observations were sufficient for reasonable suspicion that Leming was driving the Jeep under the influence.

The Issue Before the Texas Court of Criminal Appeals Regarding the Traffic Stop

The Court of Criminal Appeals had to determine whether a driver must BOTH fail to maintain a single lane AND not change lanes without checking to assure the maneuver can be accomplished safely, before it may be said that a driver has committed an offense. Such an offense would rise to the level of reasonable suspicion for a constitutionally-sound traffic stop.

What Does the Texas Transportation Code Say About Driving Within a Single Lane?

Section 545.060(a) states that “an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.”

The CCA Holds that a Driver Must Maintain a Single Lane AND Must not Leave the Lane Unless it is Safe.

The CCA explains that the fact that both the requirement to stay within a single lane as for as practical and the prohibition to not leave that lane unless it is safe to do so, originally appeared in the same subsection of the statute, does not indicate that the Legislature intended that both must be violated before an offense has occurred. Rather, the CCA believes that the Legislature intended a violation of EITHER part of the statute constitutes separately actionable offenses.

The CCA says that Officer Gilow knew from personal observations, as well as from the citizen’s report, that Leming had some sort of trouble maintaining a steady driving pattern while traveling under the speed limit. “That was sufficient information to justify a temporary detention to investigate whether Leming had actually failed at some point to remain in his dedicated lane of traffic as far as it was practical to do so under the circumstances—it matters not whether that failure was unsafe.” Further, Officer Gilow had an objectively reasonable basis to suspect Leming of driving under the influence.

As a matter of principle, the CCA notes, “it [would be] counterproductive and contrary to common sense to set the reasonable suspicion bar for DWI so high that law enforcement must hesitate to investigate such hazardous driving for fear that the stop will later be invalidated.” In a Concurring Opinion, Judge Richardson adds, “I believe [the community caretaking exception] provided justification for the officer’s stop, where, a reasonable police officer—given the totality of the circumstances-would believe [someone] is in need of help.” Dissenting, Judge Keasler stated, “this is a close case…the majority reaches the wrong result by misconstruing the statute and finds reasonable suspicion on the basis of a single insufficient articulable fact.” Judge Newell also dissented in this case.

Apr 27
Love3
Texting While Driving Cell Phone Search

Driving While InTEXTicated: Hand Over Your Cell Phone or Lose Your License

By Search & Seizure

Lawmakers and Forensic Engineers Introduce the Textalyzer to Combat Distracted Driving in New York

Texting While Driving Cell Phone SearchDid you talk on your mobile phone while driving to work this morning? Check your email? Have you ever asked Siri for help selecting a restaurant for dinner while you are driving around a new city? What about the urgent text from your boss—did you glance at that while driving? Ideally, we should answer each question with an emphatic, “No!” However, we don’t live in an ideal world—many drivers on Texas roads are distracted by mobile devices every time they drive. Just look over at the driver next to you and you’ll see it.

Distraction.gov, the official government website for distracted driving statistics, reports that in 2014, over 3,000 people were killed in the United States by distracted drivers. To combat the growing problem, lawmakers in New York are reviewing proposed legislation that would allow police to obtain the mobile devices of each person involved in a car accident for immediate testing by a Textalyzer.

What is the Textalyzer?

The Textalyzer is a mobile kiosk installed into law enforcement vehicles. The Textalyzer helps law enforcement determine whether someone involved in a car accident was distracted by a mobile device at the time of the accident. Created by the Israeli-based mobile forensics technology firm, Cellebrite, the Textalyzer, known in the techie world as the “UFED InField Kiosk,” conducts a scan of the phone to determine whether the device’s voice, text, or data features were used at the time of an auto accident.

According to Cellebrite’s UFED InField Kiosk datasheet, “officers and investigators can conduct a forensically sound, logical extraction of mobile device text messages, call logs, emails, etc., and quickly view and act decisively on potential evidence.” Almost every type of mobile device can be accessed by the UFED InField Kiosk, “the UFED Series is able to extract, decode, analyze and report data from thousands of mobile devices, including, smart phones, legacy and feature phones, portable GPS devices, tablets, memory cards and phones manufactured with Chinese chipsets.”

The New York Law | New York Senate Bill S6325A

In New York, Senate Bill S6325A is currently “in committee” but progressing with strong support. If signed into law, it would require drivers who have had car accidents to provide law enforcement with all of their mobile devices so that police could conduct a Textalyzer scan on the device at the scene. Although the Textalyzer is able to “scrape” all of the data from a phone, the mobile kiosks in New York would only be able to tell law enforcement whether the device was used and at what time, circumventing some Fourth Amendment privacy arguments. Information obtained at the scene would likely become evidence to be used in a case against the owner of the mobile device. Motorists who are found “guilty” will face more serious charges and tougher penalties than those found not guilty of being distracted.  If a motorist refuses to provide his or her cell phone to police officers for inspection, the new law provides that the person’s driver’s license could be suspended (similar to the refusal of breath or blood testing in a DWI context).

The bill began as a result of intense lobbying in part by the Distracted Operators Risk Casualties group, a group focused on creating tougher laws and stricter penalties for distracted drivers to protect innocent people from injuries caused by distracted driving. The co-founder of the group lost his son to distracted driving.

Mobile Forensics Data Collection and Analysis Creates Many Unanswered Legal Questions

The technology to “check” each of our phones at the scene of a car accident is here. The question remains—what will lawmakers decide to do with it? Further, unless legislatures provide clarification it, it will be up to the courts to wade through ambiguities. For example, what if drivers use “hands-free” options on mobile devices while operating a motor vehicle—how is such use different from using the radio or talking with a passenger—isn’t radio use just as distracting? Or what if a driver is distracted by a device and passes that device to a passenger after having an accident? Further, what if a distracted driver does not disclose he possesses a mobile device? What if a distracted driver has two phones, but only discloses one of the phones—the phone he wasn’t distracted by—to law enforcement? The “what ifs” are endless.

The Fourth Amendment protects from unreasonable searches and seizures—will the data itself (contact lists, the context of text messages, music playlists, the content of email, etc) be collected? If so, could the content of the data be held against a “distracted driver” in other court cases? Will we, perhaps, lose any reasonable expectation privacy altogether in our phones? Safety or privacy—which do you value more? Currently, Texas does not have a law like this in the works, but it could only be a matter of time if other states continue with this trend.

Apr 26
Love3
HIPAA Medical Record Search Warrant DWI

HIPAA Does Not Bar Admissibility of Private Medical Records in Criminal Case

By DWI, Evidence

Does HIPAA Impact Fourth Amendment Standing When the State Obtains Medical Records in a Criminal Investigation?

HIPAA Medical Record Search Warrant DWIWe’ve all signed the “HIPAA” privacy statements at the doctor’s office before treatment. The HIPAA Privacy Rule mandates nationwide standards to protect our medical records and personal health information by establishing safeguards, such as disclosure rules, patient authorization, and uniform protocols for the electronic transmission of medical data. HIPAA also grants patients the right to their own health information, but what about others? Does HIPAA prohibit the release of health information in a criminal investigation? What if that information is obtained via a grand jury subpoena?

State v. Huse (Tex. Crim. App. 2016)

One Month After Car Accident, Man is Charged with DWI

On February 13, 2010, Hayden Huse ran off the road and crashed into a cotton field at two in the morning. When law enforcement responded to the scene, they smelled alcohol on Huse’s breath. Instead of giving him a sobriety test, they transported him to the local hospital for injuries he sustained. During the medical exam, the hospital ran routine blood work. A few hours later during an interview with law enforcement, Huse admitted that he consumed six or seven alcoholic drinks the previous evening. However, he refused law enforcement’s request for a breath or blood specimen for blood alcohol analysis.

One month later, based upon the police report taken of Huse’s car accident, a Lubbock County Assistant District Attorney filed an application for a grand jury subpoena to obtain Huse’s medical records from the hospital, even though no grand jury had been investigating Huse. The hospital complied with the subpoena, providing Huse’s medical records, along with a business records affidavit. The records revealed that approximately two hours after the car accident, Huse’s blood alcohol concentration was .219—an amount well above the legal limit.

Huse Files a Motion to Suppress the Evidence

Huse filed a motion to suppress the records at a suppression hearing. The trial court granted his motion to suppress on the grounds that the records were obtained in violation of the Fourth Amendment and that the Assistant District Attorney misused the grand jury subpoena process. The State appealed to the Seventh Court of Appeals, which reversed the trial court’s suppression order because “[Huse] lacked standing to raise a Fourth Amendment challenge…and [because] the State did not acquire [Huse’s] medical records through an unlawful grand jury subpoena.” State v. Huse, No. 07-12-00383-CR, 2014 WL 931265 (Tex. App.—Amarillo Mar. 6, 2014). Huse filed a petition to the Court of Criminal Appeals for a discretionary review of his case.

The Two Big Issues for The Court of Criminal Appeals

The Court of Criminal Appeals set out to determine whether the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) impacts Fourth Amendment standing when the State obtains medical records in a criminal matter, and, whether the State acquired Huse’s records via a grand jury subpoena that potentially violated HIPAA.

The Fourth Amendment and Reasonable Expectation of Privacy

Under the Fourth Amendment, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. “The provision protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). In order to raise a Fourth Amendment claim, a person must have legal standing, that may be “predicated on…a reasonable expectation of privacy principle.” United States v. Jones, 132 S.Ct. 945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013).

State v. Hardy: The Precedent Case for the CCA

In Hardy, the CCA recognized that when the State itself extracts blood from a DWI suspect, and then subsequently conducts a blood alcohol analysis, then two “discrete searches” have occurred for a Fourth Amendment analysis. State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997). The State neither extracted the sample nor conducted the blood alcohol analysis. As a result, the CCA concluded that the “Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on its own initiative.” Skinner v. Railway Labor Exec. Assn., U.S. 602, 624 (1989). Further, “society [does not] recognize a reasonable expectation of privacy in privately-generated and maintained medical records that would show the result of a blood alcohol analysis [in a DWI investigation].” Hardy, 963 S.W.2d at 525-27.

The CCA Decides Whether HIPAA Trumps the Holding In Hardy?

Here, the CCA says that the State neither extracted nor analyzed Huse’s blood sample—the third-party hospital did. Huse, therefore, has no Fourth Amendment standing because he had no reasonable expectation of privacy in his privately-generated and maintained medical records. Further, “whatever interests society may have in safeguarding the privacy of medical records, [such interests] are not strong to require protection of blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident.” Id. But what about HIPAA? Does HIPAA trump the holding in Hardy?

The CCA explains that while HIPAA “might support a broader claim that society recognizes that patients have a legitimate expectation of privacy in their own medical records, generally, HIPAA does not undercut the Court’s holding in Hardy.” Further, the CCA states, “HIPAA expressly permits the disclosure of otherwise protected health information when it is sought by grand jury subpoena.”

In sum, Huse had no expectation of privacy in third-party generated and maintained medical records for a Fourth Amendment claim, and, no provisions in HIPAA specifically deny the disclosure of health information in the event of a criminal investigation. The CCA affirms the judgment Seventh Court of Appeals that Huse’s medical records shall not be suppressed.

Apr 20
Love0
Johnny Manziel Grand Jury Domestic Violence

Why is Johnny Football’s Case Going To The Grand Jury?

By Domestic Violence, Grand Jury

Is it unusual for a misdemeanor case go to a grand jury? Simply put, YES.

Johnny Manziel Grand Jury Domestic ViolenceMost misdemeanor cases in Texas are charged by way of a document called an ”information.” An information does not have to be issued by a grand jury. The information can simply be prepared and reviewed by a District Attorney and then subsequently filed in a court with proper jurisdiction. Felony cases, on the other hand, must be indicted by a grand jury unless a defendant chooses to waive indictment and proceed without one.

What is a Grand Jury?

A grand jury in Texas is a group of 12 lay people qualified under the Texas Code of Criminal Procedure. These people must be citizens of the county in which the grand jury sits amongst other basic qualifications. Ultimately, the grand jury’s job is to listen to facts presented to them regarding the cases that they review and determine if probable cause exists for the State to continue forward to court. The grand jury does not have to be convinced beyond a reasonable doubt as to the person’s guilt; they simply need to determine whether it is probable that the person committed the alleged offense based on the facts and testimony presented.

People often mistake a grand jury for a petit jury like they see in movies and television. A grand jury is very different from the juries that hear and decide the final trial. During a grand jury proceeding, there are no arguing defense attorneys or heated opening and closing statements, and there is no judge that physically presides over the process. The grand jury meets together in private room with prosecutors and witnesses. A major distinction of the grand jury is that all grand jury proceedings are secret. The Texas code of criminal procedure clearly states that all grand jury proceedings “shall be secret.” Another basic distinction is that the grand jury is organized and run solely by the district attorney’s office. The grand jury is essentially a tool used by and for the district attorney.

Why is Johnny Manziel’s Misdemeanor Allegation Going Before the Dallas Grand Jury?

So – now that you know what a grand jury is and what they do – what does this mean for Johnny Football? If the filing of an “information” is the normal course of action for misdemeanor cases in Texas, why will Dallas County grand jurors review Johnny Manziel’s case tomorrow? That answer rests solely with the Dallas County District Attorney. We can only speculate as to why this may be.

Manziel’s case is obviously high profile for Dallas. If the Dallas DA’s office were to take the case and simply file it with an information or not reject it without the review of the grand jury, they face scrutiny from both sides of the aisle. If they file the case, Manziel’s supporters would claim that the DA’s office is trying to unfairly make an example of his celebrity status and constant publicized antics. However, if they refuse to file the case, Manziel’s critics and domestic abuse activists might claim that his popularity, money, and status are unfairly allowing him out of another sticky situation.

So, what better way to take the District Attorney’s name off of the ultimate decision than to let the Dallas County community – a.k.a. the grand jury – make it? More than likely this is precisely why, unlike most other misdemeanor cases in Dallas County, the grand jury will review Johnny Manziel’s case.

Does this make Johnny Manziel’s Case a Felony?

No. A grand jury can hear a misdemeanor case just like it can hear a felony case, we just do not see grand juries used for misdemeanor cases very often. If the grand jury votes to issue an indictment, Manziel only faces a misdemeanor charge for Assault (Bodily Injury) to a Family Member.  This offense is a Class A misdmeanor which carries a punishment range of 0-365 days in county jail and a fine up to $4,000.

Ultimately, this may just be the fairest way for the State to proceed and review Johnny Football’s case and precisely the right time to use the grand jury for a misdemeanor case. As a defense attorney, I wish all of my misdemeanor clients got the benefit of a grand jury review, but the volume of cases is just too high for the State to be expected to process all felonies and misdemeanors through a grand jury.

The jury is still out on Johnny Football’s NFL career, but tomorrow the Dallas county grand jury gets to decide if even more juries lie ahead for this once seemingly-invincible Heisman Trophy winner.

Links to more Manziel Grand Jury Articles:

Apr 20
Love0
Dismissal Acquittal Double Jeopardy

Dismissal or Acquittal? The Difference Matters

By Double Jeopardy, DWI

DWI Charge Did Not Include a Year in the Allegation

Dismissal Acquittal Double JeopardyLouis Jarvis, Jr. and his wife Jennifer Jones were charged with driving while intoxicated arising out of separate but related incidents on the same evening. Both pled no contest to the charges against them. But before they were found guilty, it was discovered that neither complaint against Jarvis or Jones alleged a year that the offense was committed. The trial court granted their motions to acquit. The State appealed.

The trial court stated, “The date of an offense is a key element of the offense which must be pled and proved. There is no question that it was not pled in this case nor was any trial amendment requested to amend the Information to amend the pleadings. It is my belief that the law is very clear in this case, that the State accepted its burden of proof and failed to meet it.”

The State filed a motion for a rehearing in the two cases and argued that “acquittals could not be entered because jeopardy had not attached, the trial court had never accepted the no-contest pleas and found the defendants guilty, and effectively dismissing with prejudice the prosecutions was improper.” The trial court denied the motions for rehearing. The State appealed.

10th Court of Appeals Holds that the Acquittals were Actually Dismissals

The Tenth Court of Appeals then reviewed the appeal. The Tenth Court of Appeals disagreed that the State had accepted a burden of proof. The Court held that the State is not required to introduce any evidence to support a plea to a misdemeanor and that the trial court has not authority to weigh the sufficiency of the evidence in a guilty plea to a misdemeanor case. The Court found that the Trial Court’s problem was with the State’s charging instruments, not with the State’s evidence. The Appellate Court concluded that this was not an acquittal but was a dismissal with prejudice without the State’s consent.

This might sound like the same outcome, but it is in fact very different. A dismissal, usually occurring before trial begins, means that a case can be tried again so long as the statute of limitations has not expired. Whereas, an acquittal means that a trial was held (and jeopardy attached) and now the defendant cannot be tried again for this matter. Though these seem like subtle nuances, the difference between an acquittal and a dismissal can have huge implications on the defendant.

Double Jeopardy Does Not Bar Further Prosecution

The Tenth Court of Appeals went on to determine whether Jeopardy attached in Jarvis’s case. The Court determined, “even if jeopardy attached, because, as we have held, the trial court granted a defense motion to dismiss the prosecution on a legal basis unrelated to guilt or innocence and ‘without ultimately addressing the issue of guilt or innocence, there is no double jeopardy impediment to the State’s appeal.’” In essence, because the cases concluded with a DISMISSAL and not an ACQUITTAL, the defendants can now be retried under a new information that alleges the proper date.

For more information, read the court’s full opinion in State v. Jarvis.

Apr 18
Love4
Stopped at Canada border for DWI conviction

Crossing the Canadian Border with a Texas DWI Conviction

By DWI

Traveling to Canada, Eh?  Travel Plans for Some Americans May Be Foiled as Canada Cracks Down on DWI Arrests and Convictions

Stopped at Canada border for DWI convictionDo you have a DWI conviction in Texas (or anywhere in the United States)? Are you traveling to Canada any time soon? If you answered “Yes” to both of these questions, you may be in for a surprise at the border. Even if you have recently been acquitted of a DWI charge, you may still be turned away and deemed “criminally inadmissible for entry.” This article will explain the law and provide some solutions if you find yourself in this dilemma.

Canada’s Immigration Laws Create Anxiety for Americans with DWI Charges

Recently, Canada enacted strict immigration laws making entry into the country by car, plane, train or boat more difficult for United States passport holders who have a DWI arrest or conviction on their record. Regardless of whether the arrest or conviction was a misdemeanor charge, whether you plan to drive while in Canada, or whether the charge happened when you were a juvenile, any DWI charge at all could cause you to be turned away at the border, further damaging chances for success in all Canadian immigration programs for life. Bottom line: travelers with any type of DWI arrest or conviction will face enhanced scrutiny by the border patrol and must comply with additional legal requirements set forth by the Canadian government for entry. It is a better strategy to be proactive and prepared before traveling, instead of reactive and defensive once “caught” at the border.

Unlike the division between federal and state powers in the United States with regard to law enforcement, Canadian criminal law is solely a federal responsibility. As a result, criminal laws are uniformly interpreted and enforced throughout all of the Canadian provinces. Traveling to a different province in the hope of more leniency because of different criminal laws will not be helpful.

The federal Canadian Immigration and Refugee Protection Act (“IRPA”) governs immigration admissibility into Canada. Section 36(b)-(c) of IRPA states, “a permanent resident or a foreign national is inadmissible on grounds of serious criminality for having been convicted of an offense [or committing an act] outside Canada that, if committed in Canada, would constitute an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years.” Basically, IRPA converts any DWI charge or conviction from the United States into a “serious criminal offense” in Canada and allows Canadian authorities to deny entry into the country at border checkpoints on roads, railways, airports, and maritime ports.

Generally speaking, Canada views DWI offenses—even minor offenses—very seriously. However, there are a few options available for travelers who have a DWI on their record. If a traveler wishes to apply for relief, Canadian officials will assess the following: number and type of offense(s), when the sentencing for the offense(s) was completed, and the severity of the offense(s). The three solutions below are the most popular options for relief for travelers with DWI history, however, they are not an exhaustive list of all of the application and appeals procedures, so please consult an attorney for specific details on your particular case.

Solutions For Gaining Permission to Enter Canada with a DWI

Option 1: The Temporary Resident Permit (“TRP”)

The TRP allows a traveler with a DWI to gain entry Canada on a temporary basis. The permit can be issued for any length of stay, up to a period of three years, and the traveler must state the reason for the visit (for example, family or school). Travelers should apply for the TRP if their most recent offense occurred within the last five years. According to the Canadian Immigration Newsletter, this type of permit may take six months to a year to process.

Option 2: Criminal Rehabilitation

Travelers seeking to permanently resolve their inadmissibility issues can apply for Criminal Rehabilitation. Essentially, the traveler with a DWI charge or conviction is asking the Canadian government to forgive their DWI history. In order to be eligible, more than 5 years must have passed since the completion of one’s most recent sentence (which may have included alcohol classes, counseling, fines, jail or prison time, community service, community supervision, driving courses, probation, etc.). Rehabilitation applications can take a year or more to process. It is possible to have a TRP while one is applying for Permanent Criminal Rehabilitation, so that one has the ability to travel to Canada in the interim while waiting on the resolution of the Criminal Rehabilitation application.

Option 3: Deemed Rehabilitation

If a traveler has only one single DWI conviction where more than 10 years have passed from completion of the full sentence (for example jail or prison time, fines paid, reinstatement of driver’s license, etc), an individual may be deemed rehabilitated by virtue of the time that has elapsed. However, even if you fit this category, it is probably still a good idea to have prepared an affidavit or letter explaining the incident to Canadian border officials because full disclosure is critical to overcoming the barriers to entry. Trying to hide a conviction or denying altogether that you have one are sure fire ways to be denied entry permanently into the country.

Getting into Canada with a DWI is not as easy as showing up to the border checkpoint with a valid passport and a smile. Don’t be caught by surprise at the border! To increase your chances of admissibility into Canada, it is a good idea to talk with an attorney who will help you take the proactive steps before your trip so that you have the greatest possible chance of gaining approval for entry.

Apr 08
Love1
Police Officer Miranda Warnings Texas

A Fast Miranda Warning is No Warning at All

By Miranda

Baiza v. State | How Slowly Should an Officer Read Miranda Warnings?

Police Officer Miranda Warnings TexasWe all know that the police must read the Miranda warnings before they question someone that is under arrest.  But what does that look like in a practical sense? Can the officer read the Miranda warnings like the side effect warnings in a prescription drug commercial, where we can’t understand them? Or does he have to read them slowly, ensuring that the person being questioned fully understands each provision?  This issue recently came up in Baiza v. State, an appellate case in the 11th Circuit Court of Appeals.

Gregory Baiza was convicted for sexual assault of his wife and sentenced to twelve years in prison. Baiza was in a common-law marriage with his wife and had two children together. There was an argument between the two when Baiza found out that his wife was pregnant with their third child. Baiza’s wife claims that Baiza forced himself on her after this argument. Eventually the police were called on the scene.

After Baiza’s wife left for the hospital, she decided to press charges on Baiza. A detective came over to get a statement from Gregory Baiza but he refused. The detective then placed Baiza under arrest. Baiza, however, admitted during the second recorded statement that his wife told him to stop but that he kept going – a statement that would ultimately lead to his conviction for rape at trial.

Baiza argued to the Eleventh Court of Appeals that this admission during the recorded statement should not have been allowed into evidence at the trial court. Baiza argued that when the detective read Baiza the Miranda warnings, he read them so fast that they were unintelligible. Specifically, Baiza argued that he did not hear the warning that he was allowed to terminate the interview at any time.

Strict Compliance with Miranda Rules Not Required, But the Reading of Rights Must be Intelligible

In reviewing this issue, the Eleventh Circuit notes that strict compliance with the Miranda rules is not required, but rather a “substantial compliance” will suffice. “Thus, the warnings given to an accused are effective even if not given verbatim, so long as they convey the ‘fully effective equivalent’ of the warnings.” In order for an admission to be allowed in court, the warnings must also be on the recording. The court listened to the recording to determine if the detective gave the prescribed warnings to Baiza. The detective read the warnings from a card to Baiza. The court slowed down the audio and determined that the detective did in fact inform Baiza that he has the right to terminate the interview. However, the Eleventh Circuit determined that when played at actual speed, the “right to terminate” warning is unintelligible.

The Eleventh Circuit determined that because the “right to terminate” warning was unintelligible, that the warnings were not given and that the trial court erred when it allowed the admission into evidence. The Court then went on to find that they did not have fair assurance that the error did not influence the jury or that the error influenced the jury only slightly by incorrectly allowing this admission into evidence. For these reasons, the Eleventh Circuit reversed the judgment and remanded for a new trial.

It is very difficult to get a case overturned, even when evidence has been incorrectly admitted. But here, the Court finds that even though the detective read Baiza his Miranda warnings, reading them so quickly as to make a key part unintelligible was enough to keep out an admission by Baiza from evidence. Specifically, the court finds that the “right to terminate” is a crucial part of the Miranda warnings and that a detective or officer cannot read them so quickly as to make them unintelligible or any admission shall not be admitted into evidence.

Read the full opinion in Baiza v. State.

Mar 31
Love3
Tarrant County DWI Court Nekhom

Tarrant County Starts New Misdemeanor DWI Court Program

By DWI

Judge Deborah Nekhom to preside over Tarrant County’s new DWI Court Program for Misdemeanor DWI Cases

Tarrant County DWI Court NekhomTarrant County has many specialty court programs for various types of criminal cases, but for DWI cases, the only specialty program available was limited to felony-level cases – the Felony Alcohol Intervention Program (FAIP). Not anymore. After much debate, Tarrant County started a new specialty court designed for misdemeanor DWI cases (it is not currently listed on the county’s website). The program officially began on March 30, 2016.  Judge Deborah Nekhom in County Criminal Court 4 is the presiding judge over the new DWI Court and she is dedicated to making it a success.

DWI Court is Designed for High-Risk / High-Need Offenders

The goal of the new DWI Court is to identify high-risk DWI defendants and intervene so that they do not end up with a felony DWI down the road. With the help of defense attorneys and clinical specialists, the program seeks to identify defendants with significant substance abuse issues, who are in need of serious help. While the specifics of the program are still being ironed out, our firm has been told that there will be strict oversight and accountability for all participants so that they can have the best chance of successfully completing the program and their DWI probation.

What are the benefits of the Tarrant County DWI Court?

The main benefit of participating in the new DWI Court is that participants will receive the counseling and support they need to overcome their addiction and live a health, productive, alcohol-free and drug-free lifestyle. In addition, some of the following benefits have been discussed and are being implemented:

  • Probation time is reduced after completion of the program, allowing participants to enter into a non-reporting status;
  • Waiver of DWI fines (up to $4,000)
  • No program fees
  • *Dismissal of the underlying DWI charge and allowance for a Non-Disclosure (*this expires on 1/1/17 with changes to the Texas Government Code)

Several other benefits are being considered and are not ripe for public discussion at this point.

How Do I Get a Client into the DWI Court?

If you have a client that would be a good candidate for misdemeanor DWI Court, you should get him or her an assessment ASAP to determine whether they are classified as high-risk / high-need. You should then discuss the option of DWI court with the presiding judge of your client’s DWI case. If, after seeing the assessment, the judge agrees that DWI court is a good option, he or she will transfer the case to CCC4 after your clients enters a plea of guilty to the DWI.

Contact Us for More Information About DWI Court

I realize that this article does not provide a lot in the way of specifics about the new program, but it only started yesterday and there are not a lot of specifics to publish at this point. If you have some questions, our DWI defense attorneys would be happy to answer them if we can. Contact our office at (817) 993-9249.