Feb 29
0
Sexual Assault Defense Attorneys Fort Worth

The Importance of Reading Statutes in Context

By | Sex Crimes

Texas Stacking Sentences in Sexual Offenses

Sexual Assault Defense Attorneys Fort WorthNguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

Feb 27
0

No Duty to Retreat in the Defense of Others

By | Duty to Retreat, Self-Defense

In Morales v. State, the Texas Court of Criminal Appeals held that there is NO duty to retreat when you are rightfully defending another person.  The CCA held that:

A person is justified in using deadly force against another if he could be justified in using force against the other in the first place … and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force and if a person in the defendant’s situation would not have had a duty to retreat…

Therefore a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another’s use or attempted use of unlawful deadly force, and provided it reasonably appear to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.

A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.

Feb 24
0
Evidence on Social Media Networks

Introducing Social Media Electronic Evidence at Trial

By | Evidence

Evidence on Social Media NetworksLaying the foundation for the admission of evidence can be tricky.  Often quite technical.  Even hypertechnical.  Depending on what you are trying to admit, you might need affidavits, chain of custody records, etc.  With the advancement of the internet, something trial lawyers of old did not even think about, there is more evidence out there.  Good evidence.  Sometimes really good evidence. Social media sites can provide a wealth of evidence for criminal trial lawyers on both sides of the aisle.

There are Facebook and MySpace friend lists and wall posts that can establish relationships and demonstrate motive or bias. Twitter feeds.  There is also a “check-in” feature on some sites that can show where someone was at a certain time.  What’s more, if you dig deep enough (usually with the help of a subpoena) a person’s private messages on Facebook or MySpace can be a treasure trove of information.  And let’s face it, many people on Facebook and MySpace have absolutely no filter.  Evidence galore.

One of the main problems with using social network media at trial is that ANYONE can create an account purporting to be anyone else.  Just check out the purported profiles for celebrities and you’ll see for yourself.  I seriously doubt Justin Timberlake has time to manage 20 different Facebook and MySpace profiles.

So, with this significant potential for fraud, how does a trial attorney go about authenticating and admitting this evidence at trial.  You might think that you need an affidavit from the social media company and the IP logs from the computer that created the account.  Indeed, you could get that sophisticated if you like.  But you don’t have too.   At least not in Texas.

The Texas Court of Criminal Appeals recently decided Tienda v. State, a case that dealt with this issue.  At trial, the State tried to introduce pieces of evidence obtained from the appellant’s purported MySpace accounts.  However, the state did not have IP logs showing which computer created the accounts or the hard drive of appellant’s computer or any other sophisticated computer evidence.  The State took the simple route.  It presented evidence obtained from MySpace showing which email address created the accounts. Then it presented evidence obtained from the MySpace profiles themselves (posts, music, photos, messages), which linked appellant (circumstantially) to the MySpace profiles.  They used a sponsoring witness that had been on the MySpace profiles and had seen the postings and pictures.  The trial court allowed the evidence over defense objection.

The CCA held that “a combination of facts…[was] sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant.” The CCA noted that under TRE 901(a), the proponent of the evidence need only make a threshold showing that would be sufficient to support a finding that the matter in question is what its proponent claims. “The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder – the jury, in a jury trial.” Electronic evidence, the CCA explained, may be authenticated in a number of different ways.  However, “simply showing than an email [or other electronic message] purports to come from a certain person’s email address…or that a text message emanates from a cell phone number assigned to the purported author…without more, has typically been regarded as [insufficient] to support a finding of authenticity.”

Ultimately, the CCA held in Tienda that there is no formula for admission of electronic evidence.  Each case should turn on its particular facts and the amount of circumstantial indicia of authenticity that is present.  The CCA cited a Maryland Court of Appeals opinion and seems to adopt the Maryland Court’s rationale regarding three instances that would satisfy the test for authenticity, but notes that the methods are not exclusive.

[T]he Maryland Court of Appeals recognized that such postings may readily be authenticated, explicitly identifying three non-exclusive methods. First, the proponent could present the testimony of a witness with knowledge; or, in other words, “ask the purported creator if she indeed created the profile and also if she added the posting in question.” That may not be possible where, as here, the State offers the evidence to be authenticated and the purported author is the defendant.  Second, the proponent could offer the results of an examination of the internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person’s personal computer was used to originate the evidence at issue.  Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation.”

While that State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury.

If you are thinking about introducing social network evidence or other electronic evidence, this case is a good one to read. As always, the war is waged at the trial level, because on appeal, the standard is abuse of discretion, which means, of course, that the trial court’s ruling is given great deference.

Feb 17
0
Non-Custodial Interrogation

Just Saying an Interrogation is “Non-Custodial” Doesn’t Make it So

By | Miranda

Non-Custodial InterrogationUnited States v. Cavazos is a case out of the 5th Circuit Court of Appeals (Federal).  It involves an interlocutory appeal by the government after the trial court (U.S. District Court for the Western District of Texas) suppressed incriminating statements made by the accused prior to receiving his Miranda warnings.

Here’s what happened:  Federal agents executed a warrant on the defendant’s home between 5:30 a.m. and 6:00 a.m. searching for evidence that he had sent sexually explicit material to a minor female.  Approximately fourteen agents and officers (that’s right, 14 agents and officers!) entered the residence and handcuffed the defendant as he was getting out of bed.  After the home was secured, agents removed the handcuffs and took the defendant to a bedroom for an interview.  Agents told the defendant that it was a “non-custodial” interview, that he was free to get something to eat and drink during it, and that he was free to use the bathroom (they curiously left out the part about him being free to leave and free to not answer their questions and free to seek the advice of counsel, hmmm…).  The agents then began questioning the defendant without reading him his Miranda rights.  The defendant admitted that he had been “sexting” the victim and he described communications he had been having with other minor females.

At trial, the judge granted the defense motion to suppress the defendant’s statements made to the officers during this interrogation.  The trial judge ruled that even though the officers told the defendant that the interrogation was “non-custodial,” the facts of the case proved otherwise.

On appeal, the 5th Circuit affirmed the trial court and held that the defendant was subjected to a custodial interrogation when the agents questioned him in his home.  As a result, the incriminating statements made by the defendant were properly suppressed.

A suspect is in custody for Miranda purposes when placed under formal arrest or when a there is a restraint on his movement to the degree associated with a formal arrest, even when there is no arrest.  The key question is under the circumstances, would a reasonable person have felt he was at liberty to terminate the interrogation and leave.  Here, the court said no.  First, fourteen agents entered the defendant’s home, in the early morning, without his consent.  Second, although the defendant was free to use the bathroom or get a snack, when he did, he was followed by the agents and closely monitored.  Third, although the defendant was allowed to use a telephone to call his brother, the agents had him position the phone so they could listen to the conversation.  This indicated the agents’ control over the defendant while implying that he had no privacy.  While the agents told the defendant the interview was “non-custodial,” such a statement made to a reasonable lay-person is not the same as telling him that he can terminate the interrogation and leave. Also, such a statement, made in a person’s home does not have the same effect as if the agents had offered to leave at any time upon request.

Overzealous agents and officers always make for good caselaw.

Feb 16
0
Remain Silent

The Booking-Question Exception: Another Reason to Shut Up

By | Miranda

Remain SilentAlford v. State – (Tex. Crim. App.) Feb. 8, 2012

Cecil Edward Alford was charged with evading arrest and detention.  While being transported to jail, Officers noticed that Mr. Alford was squirming around in the back seat.  Once at the jail, officers got Alford out of the car and searched the back seat.  As was procedure, they had searched the back seat of the squad car before their shift started to confirm that there were no items in the back seat.  After searching the back seat of the squad car following Mr. Alford’s transport to jail, officers located a clear plastic bag with pills inside and, directly under the bag, a computer flash drive (“thumb” drive).  As the jailers were booking Alford in, one of the officers took the thumb drive and held it up to Mr. Alford asking what it was.  The officer then asked, “Is it yours?” Alford claimed that it was.  At the time the jailer asked the question, Alford had not been advised of his Miranda rights.

The legal question arising from this situation is whether Alford’s admission that he owned the flash drive could be used against him at his trial.

The Court of Criminal Appeals first analyzed this case by addressing custodial interrogation and the “booking-question exception” to Miranda.  The Court recognized that questions “normally attendant to arrest and custody” or “routine booking questions” are exempt from Miranda. See South Dakota v. Neville, 459 U.S. 553 (1983); Pennsylvania v. Muniz, 496 U.S. 582 (1990).  The CCA noted that Mr. Alford’s case hinged on whether the question that the officer asked him that night was reasonably related to administrative concerns or if it was a question designed to elicit incriminatory admissions.

The defense presented case law supporting the contention that a question does not necessarily fall within the booking-question exception to Miranda simply because the question was asked during the booking process.  Specifically, the defense cited a footnote at the end of the Supreme Court’s opinion in Muniz that said, “recognizing a ‘booking exception’ to [Miranda] does not mean, of course, that any question asked during the booking process falls within that exception.  Without obtaining a waiver of the suspect’s [Miranda] rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Id at 602, n. 14 (Brennan, J., plurality op.)

The CCA conceded that case law actually supported both the State and the appellant in this case.  Ultimately though, the Court held that the booking-question exception applies when the question reasonably relates to a legitimate administrative concern regardless of whether officer should have known that it might elicit an incriminatory admission.  The Court held that the Officer’s question in Alford’s case had the legitimate interest of identification and storage of an inmate’s property and that the questions regarding the thumb drive did fall within the booking exception to Miranda.

Essentially, the court decided that the relationship between the officer and Alford was not the determining factor.  Even though the Officer that asked Alford the questions was primarily responsible for the investigation, the Court still said that his question at the jail was just a booking question.  To me, this case does not provide any clarity to the booking-question exception to Miranda.  In any case, once a suspect is arrested, an officer could claim his questions are for booking purposes only, even when those questions are eliciting incriminatory admissions – and even if those questions are being asked while still in the field or at the scene.

This case just serves to reinforce what I’ve always advised folks – DO NOT SAY ANYTHING TO THE POLICE.  Of course, there are times when talking with a police officer cannot hurt, but if you are under arrest, DO NOT SAY ANYTHING, DO NOT EVEN NOD YOUR HEAD, until you have been provided an attorney.  If you must say something, say this:  “I request an attorney and will not answer any questions until I have been provided an attorney.”

Feb 14
0
Defense to sexual assault

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

By | Sex Crimes

Defense to sexual assaultTexas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained in Cornet v. State:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.

Feb 10
0
Right to an attorney in Fort Worth, Texas

Lost in Translation: A Defendant’s Right to Counsel

By | Miranda, Right to Counsel

Right to an attorney in Fort Worth, TexasUnder the Fifth and Sixth Amendments, a criminal suspect is guaranteed the right to counsel.  But there’s a difference between what the two amendments provide.  The Fifth Amendment right to counsel was created by the Supreme Court decision in Miranda v. Arizona, where the Court held that a person has the right to have counsel present during custodial interrogation (interrogation counsel).  The Sixth Amendment guarantees a defendant the assistance of counsel for his defense at trial (trial counsel).

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation (interrogation counsel) and the Sixth Amendment right to counsel at all critical stages of criminal proceedings (trial counsel) had become intertwined in complex and confusing ways. It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment.

Pecina v. State, a recent Texas Court of Criminal Appeals case, illustrates the confusion that existed between the two rights to counsel.  In Pecina, Arlington Police officers arrested the defendant for the murder of his wife and took him to the hospital rather than the jail because he had suffered significant stab wounds (allegedly self-inflicted).  Because Mr. Pecina could not be transported to see a magistrate within 48 hours as required by the Texas Code of Criminal Procedure, the police officers brought a magistrate to him.  A bilingual magistrate.  The magistrate advised Mr. Pecina (in Spanish) of his Article 15.17 rights including, inter alia, the right to have an attorney present throughout the criminal trial process (i.e. trial counsel – 6th Amendment).

“After reading appellant his rights, [the magistrate] asked if he wanted a court-appointed attorney.  And he stated that he did.” She then asked Mr. Pecina if he “still wanted to talk to [the detectives]?” He said that he did.  The magistrate (as she later testified) believed that, when Mr. Pecina asked for counsel, he was asking for trial counsel, not interrogation counsel.  The two detectives then entered the hospital room and issued Mr. Pecina his Miranda warnings (in Spanish).  Mr. Pecina waived his Miranda rights, did not request an attorney, and gave a statement.  He was later convicted for murder after his statements to the detectives were admitted against him at trial.

These facts raise important questions:

When Mr. Pecina told the magistrate that he wanted a court-appointed attorney, did he invoke his rights under both the 5th and 6th Amendments? Should the police have refrained from initiating further questioning until he had an attorney present?

Prior to the 2009 Supreme Court decision in Montejo v. Louisiana, 556 U.S. 778, the controlling case regarding the two intertwining rights to counsel was Michigan v. Jackson, 475 U.S. 625 (1986). “In Michigan v. Jackson, the Supreme Court had held that ‘if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.’”

Under Michigan v. Jackson, Mr. Pecina’s assertion of his right to counsel that he made to the magistrate in the hospital would have been enough to preclude the police from initiating further interrogation. Or, if the police did later initiate interrogation, any statement Mr. Pecina made should have been suppressed at trial.

But all of that changed under Montejo in 2009. In Montejo, the Supreme Court disentangled the right to interrogation counsel with the right to trial counsel.

Distilled to its essence, Montejo means that a defendant’s invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation. The magistration hearing is not an interrogation event.

Analyzing the Pecina case in the wake of Montejo, the CCA explained that “[i]n this case, there were two separate events: magistration followed by a custodial interrogation.” The CCA then held that “under the totality of the circumstances…an objective and reasonable police officer, conducting a custodial interrogation would conclude that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel for the purposes of custodial questioning.”

The CCA went further to clarify the new rule, explaining that under the Supreme Court decisions in Montejo, Miranda, Edwards, and Minnick, a suspect’s Fifth Amendment rights (to interrogation counsel) are only triggered “AFTER THE POLICE INFORM HIM OF HIS RIGHT TO COUNSEL AT THE BEGINNING OF A CUSTODIAL INTERROGATION.” Emphasis added.  Ultimately, the CCA held that the magistration hearing (in which Mr. Pecina requested an attorney) did not trigger any Fifth Amendment right concerning custodial interrogation; that, the CCA explained, was done by the detectives at the beginning of their interrogation.

PRACTICE NOTE: A criminal defendant/suspect must now request an attorney, unequivocally, at every stage of the criminal justice process.  Interrogation.  Arraignment.  Magistration.  Every stage.  This is a significant change in Texas criminal procedure.

Judge Alcala joined the majority opinion but wrote a separate concurring opinion, in which she notes:

The magistrate’s interpretation (that Mr. Pecina only requested trial counsel and not interrogation counsel) misses the whole point of the warning, which is the right to have an attorney present ‘during any interview with peace officers.’ I conclude that the record indisputably shows that appellant’s request for an attorney was a request to have an attorney present during interrogation, as well as during court proceedings. …Appellant’s request for an attorney was, at most, a pre-invocation of his right to counsel.

Judge Alcala believes that the “Legislature could easily fix [the confusion between the two rights to counsel] by adding one sentence to the Article 15.17 admonishments: ‘If you desire to have an attorney present during police interrogation, you must make that request at the time of the police questioning.’”

Judge Price dissented, opining that “[a]ny reasonably objective viewer would conclude from the peculiar facts of this case that [the magistrate] was acting as a de facto agent of the interrogating detectives.” He went further:

That the invocation [of Mr. Pecina’s rights] also occurred during a simultaneous “magistration,” while accurate, does not detract from its essential character for Fifth Amendment purposes. And once a suspect has made it clear that he desires the assistance of counsel in coping with police interrogation, we are not entitled to look at his subsequent responses to official entreaties “to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel.”

Judge Price believes that Mr. Pecina’s Fifth Amendment right to interrogation counsel was violated.  I agree.

Feb 03
0

Prosecutor Post: It’s Not Personal…Really.

By | Trial Advocacy

A Contribution From our Texas prosecutor friend:

I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys.  Relationships that, like it or not, become very intricate in the resolution of criminal cases.  This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney.  He started by pointing out how there’s not much to gain by creating a hostile relationship with a prosecutor.  He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.

I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney.  We try and look at the case and defendant separately from the attorney.  He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he’s going to handle a case.  Again, I stressed we try not to behave that way, but then again, I can’t speak for every prosecutor.

Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person.  The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside.  So, they take things personally.  Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away.  And it should!  Criminal cases shouldn’t be taken lightly by either side, but passion doesn’t have to trump professionalism.

There’s not really a how-to on not taking it personal.  Just something you have to practice I suppose.

Feb 01
0
Johnson v. State, Right to Slience

Trial Judge Influences (But Does not Compel) a Defendant to Testify

By | Uncategorized

Johnson v. State, Right to SlienceThe 5th Amendment to the United States Constitution: “[N]o person…shall be compelled in any criminal case to be a witness against himself.”

On January 25, 2012, the Texas Court of Criminal Appeals issued its opinion in the case of Johnson v. State.  This case specifically dealt with a situation that occurred during the sentencing phase of a trial involving defendant Charles Michael Johnson.  Johnson was arrested in 1991 and subsequently indicted for Possession of a Controlled Substance with intent to deliver.  He was released on bond and failed to appear for any further hearings.  Eighteen years later, Johnson was arrested in Florida and returned to Texas to face the charges.  He was convicted by a jury at trial and then elected to have the court assess punishment.

After the State rested it’s punishment case, the defense had the court take judicial notice of the pre-sentence investigation and then rested.  At that point, the judge asked the Defense if its client wanted to testify.  The Defense stated that he would not.  The judge’s response was, “In all candor, I would kind of like to know what he’s been doing for the last 18 years.” The Defendant then went to the witness stand and testified.  At the end of the hearing, the judge stated, “ Okay. Well, this is obviously a very difficult case in that it’s apparent to me that he has stayed out of trouble, essentially at least, in any realistic way.  I mean, driving with a license suspended is no big deal in the context of things, but on the other hand, I don’t want to reward somebody for running, and I do believe that the defendant lied under oath, sir. I’m sorry. That’s what I think.” The judge then sentenced him to ten years’ confinement.

On appeal, Johnson argued that the trial court had compelled him to testify against himself in violation of his Fifth Amendment right to silence.  The CCA relied on previous precedent establishing the general rule that the privilege to avoid self-incrimination is ordinarily not self-executing.  Minnesota v. Murphy, 465 U.S. 420.  By “not self-executing,” the CCA noted that a defendant can voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand and make incriminating statements even if not done knowingly or intelligently.  The CCA stated that the issue was not whether Johnson make a knowing, intelligent and voluntary waiver of his privilege to remain silent, but whether he voluntarily testified or was “coerced” to testify against his will.  The CCA indicated that this question hinged on whether Johnson feared that the trial court would penalize him for remaining silent (which the Court also called the “classic penalty situation”).  The Court found that there was no direct evidence that it would.  Additionally, the CCA found that neither Johnson nor his counsel made any comment indicating that they believed if he remained silent a greater punishment would be assessed.

Finding that Johnson was not confronted with the “classic penalty situation,” the CCA held that he had forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense, despite the trial courts comments before he did so.

Jan 23
1
GPS Tracking Device Texas

Supreme Court Strikes Down GPS Tracking Device | US v. Jones (2012)

By | Search & Seizure

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

GPS Tracking Device TexasMuch like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.
     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it’s a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here’s what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven’t had the time yet to fully digest the opinion, so I’ll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C’Mon.  When you cite U.S. v. Jones, people are going to thing you’re making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.