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Jan 07
Love0

Parole by Mistake: No Credit Toward Sentence

By Parole

If a person convicted of aggravated rape is paroled by mistake, is that person entitled to street-time credit for the period between his release and the revocation of his release?

The 5th Circuit said NO in Rhodes v. Thaler.

Rhodes v. Thaler, 713 F.3d 264 (5th Cir. 2013): Mandell Rhodes, Jr. was convicted of aggravated rape in 1980. He was paroled in 2004, but returned to prison in 2006 after violating a condition of his release. Rhodes claimed that he was denied street-time credit for the two years that he was on parole which “could have been used to accelerate his automatic release to mandatory supervision.”

According to Rhodes, Texas law required that when an inmate is released in error through no fault of his own, he is entitled to be credited with all earned street-time credit upon his return to prison. The denial of such credit, he argued, was a violation of due process.

Rhodes sought habeas relief in federal district court. The district court denied his petition. Through a Certificate of Appealability, the 5th Circuit was granted jurisdiction to decide the appeal and consider Rhodes’s argument that his street time should have been restored because he was erroneously released to parole. According to the 5th Circuit, Rhodes’s petition could only be granted if one of his constitutional rights had been violated.

In order to prevail under due process, Rhodes must have had a “liberty interest” in his claimed street-time credit. If he did not have a liberty interest in that street-time credit, he was due no more process than he received. In determining whether Rhodes had a liberty interest in the street-time credit he demanded, the 5th Circuit looked to Texas’ law of releasees that was in effect when his release was revoked.

At the time Rhodes’s parole was revoked, Texas’ “street-time credit statute,” Tex. Gov’t Code §508.283, controlled. According to §508.283, “if the parole, mandatory supervision, or conditional pardon of a person described by §508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person’s release to the date of revocation.” According to the Court of Criminal Appeals, §508.149(a) includes persons- like Rhodes- who have been convicted of aggravated rape.

Therefore, because Rhodes was not entitled to street-time credit for that period, he had no protected liberty interest that was subject to due-process protection. Rhodes was only entitled to federal habeas relief if he was deprived of street time credit without due process. Because Rhodes had no protected liberty interest in the street-time credit that he claimed to have accrued, his due-process right was not violated. Therefore, the district court’s denial of Rhodes’s habeas petition was affirmed.

Nov 22
Love1

Supreme Court Decision Watch: Conflicting Consent to Search

By Search & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

Nov 15
Love0

Stepmother Acquitted on Appeal for Appendicitis-related Death of Stepdaughter

By Manslaughter

Having a sick child can be a scary thing. Especially when you can’t figure out why they are sick. In this case, neither the school nurse nor the stepmother could figure out why the child was complaining. Read what happened.

In Britain v. State, the complainant, eight-year-old Sarah Brasse, went to her school nurse’s office complaining of a stomachache.  During her first visit, the nurse had her lie down for a little while and then sent her back to class.  Sarah returned two more times to the nurse’s office, visibly uncomfortable and crying.  After conducting a physical exam, which showed no abnormalities, the nurse decided to send her home.

The appellant, Sarah’s stepmother, picked her up. Later that evening, Sarah began vomiting and developed diarrhea.  Around six p.m. the next day, the appellant found Sarah dead.  Rigor had already set in by the time paramedics arrived, but appellant reported having checked on her only fifteen or twenty minutes before.  The emergency-room doctor estimated that the time of death was around three p.m.  Acute appendicitis was the cause of death.

A jury convicted appellant of manslaughter and injury to a child for recklessly causing the death of her stepdaughter.  The Court of Appeals held there was insufficient evidence that the appellant was “aware of but consciously disregarded a substantial and unjustifiable risk” as required to prove recklessness.  The Court of Appeals reversed the trial court’s decision and acquitted appellant on both counts.

The Texas Court of Criminal Appeals granted the State’s petition for discretionary review to answer one question: Should the Court of Appeals have reformed the verdict to the lesser-included offense of criminally negligent homicide rather than rendering a verdict of acquittal?

The CCA affirmed the Court of Appeal’s rendering. To prove that the appellant acted negligently, the State would have had to show beyond a reasonable doubt that the appellant ought to have been aware of the substantial and unjustifiable risk posed by not taking Sarah to a doctor and that such a failure was a gross deviation from the standard of care than any ordinary person would have exercised.  The State failed to meet this burden.  Because there was no evidence concerning the standard of care an ordinary person should be held to or that showed the appellant should have been aware of the risk to Sarah, the State failed to prove beyond a reasonable doubt that the appellant acted with negligence.  Therefore, the Court of Appeals did not err in rendering a judgment of acquittal.

While many parents would have probably taken the child to the doctor, the Court of Appeals simply could not hold that the stepmother committed a crime by not doing so.

Nov 11
Love0

No Solicitors or Drug-Sniffing Dog!

By Warrantless Search

The Legality of Drug-Sniffing Dog Searches

Let’s face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I’m not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man’s front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment “search” requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines’s front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines’s home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home “by the front path, knock promptly, wait briefly to be received, and then leave,” it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government’s use of trained police dogs to investigate the home and its immediate surroundings was a “search” within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott’s Police K9 in North Texas.

Oct 24
Love0
Deadly Weapon Law in Texas

When is a Deadly Weapon Not a “Deadly Weapon?”

By Deadly Weapon

The Frustrating “Deadly Weapon” Issue

Deadly Weapon Law in TexasThe “deadly weapon finding” under Texas criminal law is an issue that leads most criminal defense lawyers to bang their collective heads against the courthouse wall. It seems that just about anything and everything is, has been, or will soon be, designated as a “deadly weapon” when the prosecution deems it helpful to securing a conviction and lengthier sentence. Here are some deadly weapons that we’ve seen recently: car, fist, baseball bat, walking stick, STDs, fire, fake gun, etc.

In the case below, the Texas Court of Criminal Appeals finally ratcheted back the power of the State to enhance a case with a deadly weapon finding.  Kudos to the 1st Court of Appeals (Houston) for stepping out on this issue.

Question Presented:  To support a deadly-weapon finding, must the “exhibition” of the deadly weapon facilitate, in some manner, the felony offense? Or is it sufficient that the exhibition of the deadly weapon occurs simultaneously with the felony but is unrelated to its commission?

In Plummer v. State, the Houston Court of Appeals, First Judicial District, held that there “must be some facilitation purpose between the weapon and the associated offense to support a deadly-weapon finding.”

Sep 17
Love0

A Terry Stop With Guns Drawn, Unlawful Wiretapping, and Other 5th Circuit Fun

By Search & Seizure

Below are some case summaries from recent 5th Circuit (Federal) opinions.  Enjoy.

United States v. Abdo, 2013 U.S. App. LEXIS 17251 (5th Cir. Tex. Aug. 19, 2013)

After receiving information from employees at a gun store and an army/navy surplus store, police officers believed Appellant planned to detonate a bomb and shoot service members stationed at Fort Hood, Texas.  When the officers encountered Appellant they drew their firearms, separated Appellant from the backpack he was carrying, handcuffed him and then placed him in the back of a police car.  Appellant admitted to the officers that he planned to attack soldiers at Fort Hood.  Appellant was then formally arrested and transported to the jail.

Appellant argued the district court should have suppressed evidence found at the time of his arrest and statements he made to the police.  Appellant claimed his detention at gunpoint and placement in a police car in handcuffs was a full arrest rather than a Terry stop, which was not supported by probable cause. The court disagreed.

Pointing a firearm and handcuffing a suspect does not automatically convert a Terry stop into an arrest.  Here, when the officers encountered Abdo, they knew he had purchased shotgun shells, an extended magazine for a handgun and a large amount of gunpowder in a manner that was not consistent with its normal use.  The officers also knew Appellant purchased an army uniform and asked for the kind of patches used at Fort Hood.

In addition, Appellant was carrying a large, overstuffed backpack on a very hot day and one of the officers had experience with terrorists using similar tactics of concealing explosives in backpacks and obtaining fake uniforms to facilitate an attack.  Under these circumstances, the officers acted reasonably in drawing their firearms and handcuffing Appellant while they effected a valid Terry stop, which was supported by reasonable suspicion. 

United States v. Garza, 2013 U.S. App. LEXIS 17515 (5th Cir. Tex. Aug. 21, 2013)

While on roving patrol, a Border Patrol agent received a radio broadcast to be on the lookout (BOLO) for a suspicious looking older model pickup truck carrying plywood in the bed, parked at a gas station at the corner of FM 650 and Highway 83 near Fronton, Texas.  When the agent arrived at the gas station, he saw a pickup truck matching the BOLO description and got out of his vehicle to talk to the driver, later identified as Appellant.  As the agent approached, Appellant acted nervously, moving fast to replace the gas cap, tensing up and shaking while doing so and then quickly entered the pickup truck. Appellant attempted to drive away, but stopped when the agent activated the lights of his patrol car.

Appellant gave the agent consent to search the pickup truck and the agent found several people concealed underneath the plywood in the back of the truck who admitted they were in the United States unlawfully.  The agent arrested Appellant.

Based on the totality of the circumstances, the court held the agent had reasonable suspicion to stop of Appellant’s truck. First, FM 650 is a well-known smuggling road for narcotics and aliens because it is the only route in an out of Fronton, as this court has noted in the past.  Second, the agent had patrolled the border area regularly for over two and a half years and had investigated tips and made arrests in that same area for narcotics violations and alien smuggling.  Third, the agent encountered Appellant’s truck five miles from the border between the United States and Mexico, which supported the reasonable belief the vehicle had recently crossed the border. Fourth, upon arriving at the gas station, the agent knew Appellant’s vehicle did not belong to a Fronton resident and Appellant’s nervous, erratic behavior and unprovoked flight supported a finding of reasonable suspicion. Finally, based on his experience, the agent knew smugglers often used plywood to conceal contraband in their trucks.

United States v. North, 2013 U.S. App. LEXIS 17808 (5th Cir. Miss. Aug. 26, 2013)

As part of a drug trafficking investigation, federal agents obtained a wiretap order on Appellant’s cell phone from a federal judge in the Southern District of Mississippi.  Information obtained from the interception of Appellant’s cell phone on May 9 and 16, 2009, led to Appellant’s arrest for possession of cocaine. Title III of the Omnibus Crime Control and Safe Streets Act of 1986 authorizes the use of wiretap surveillance in criminal investigations.  Under Title III, a federal judge may enter an order authorizing the interception of cell phone communications within the territorial jurisdiction of the court in which the judge is sitting.  The Fifth Circuit Court of Appeals has held the “interception” includes both the location of a tapped telephone and the original listening post, and that a judge in either jurisdiction has authority under Title III to issue wiretap orders.

Appellant argued the district court in Mississippi lacked territorial jurisdiction to authorize the interception of the cell phone call on May 9, 2009, because when the agents intercepted the call his phone was located in Texas and the government’s listening post was located in Louisiana.  The court agreed.

The district court located in the Southern District of Mississippi lacked the authority to permit interception of cell phone calls made from Texas at a listening post in Louisiana. In addition, the court held suppression of the information obtained from the May 9, 2009, wiretap was warranted. Appellant further argued the agents failed to follow the minimization protocols during interception of the May 16, 2009, phone call between Appellant and a female friend who was not under investigation.  Appellant claimed the agents conducted uninterrupted monitoring of a one-hour telephone conversation that had no connection to the drug smuggling investigation.

The court agreed and suppressed the evidence obtained from the interception of the phone conversation.  The agents were authorized to spot-monitor Appellant’s cell phone conversations for no more than two minutes at a time.  However, the agents were authorized to continue monitoring if the conversation related to the drug smuggling investigation.  The court found the agents did not stop listening when it was made clear the conversation was not criminal in nature and they did not conduct subsequent spot checks by checking on the conversation to determine if it had turned to criminal matters.  Rather, the agents listened to the conversation for several minutes before dropping out for less than one minute at a time before resuming their near continuous listening.  Under these circumstances, the court held it was not objectively reasonable for the agents to listen for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes.

Sep 16
Love0

Criminal Law Legislative Updates 2013

By Legislative Update

Below is a summary of the most recent Texas legislative updates 2013 as they relates to Criminal Law:

– In an attempt to reduce wrongful convictions in Texas, Senate Bill 1611 requires prosecutors to open their files to defendants and keep records of evidence they disclose. While the United States Supreme Court has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” Senate Bill 1611 requires disclosure of not only all police reports and witness statements, but also any other evidence that is material to any matter regardless of whether such evidence is “material to guilt or punishment.”

– Senate Bill 344 allows courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. During an appeals process, Senate Bill 344 authorizes courts to grant relief on applications for writs of habeas corpus if there is currently available relevant scientific evidence that was not available at the time of conviction. The current relevant scientific evidence is only admissible if the evidence was not ascertainable through reasonable diligence at the time of trial.

– Senate Bill 1238 authorizes the Texas Forensic Science Commission to investigate unaccredited forensic disciplines such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

– House Bill 1847 requires prosecutors to complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

– Under Senate Bill 825, an exoneree is permitted to file a grievance up to four years following release from prison against a prosecutor alleged to have violated the ethics rule regarding the duty to disclose. This bill further prohibits a private reprimand for such a violation.

– In an effort to reduce the possibility of a false confession being admitted at trial by a person who does not speak or understand English, House Bill 2090 requires that a written statement by an accused be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding.

– Upon a second conviction for a “sexually violent offense” against a child under the age of 14, House Bill 1302 requires an automatic life sentence in prison without parole. Furthermore, House Bill 1302 specifically prohibits registered sex offenders from working at amusement parks or seeking employment as cab, bus, or limousine drivers.

– Under Senate Bill 124, the offense of Tampering With A Governmental Record is enhanced from a Class A misdemeanor to a 3rd Degree Felony if the governmental record was a public school record, report, or state-mandated assessment instrument. If the actor’s intent was to defraud or harm another, the offense is enhanced instead to a 2nd Degree Felony.

– In an effort to address human trafficking, House Bill 8 enhances all Prostitution offenses from a Class B misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the actor knew the age of the person solicited at the time of the offense. House Bill 8 also significantly alters the definition of the crime of Possession of Child Pornography. Accordingly, a person commits the crime of Possession of Child Pornography if they knowingly or intentionally “access with the intent to view” child pornography.

– If the underlying official proceeding in a criminal case involves family violence, Senate Bill 1360 enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in the criminal case. Senate Bill 1360 also provides a statutory forfeiture-by-wrongdoing provision, which specifies that a party to any criminal case, who causes a witness to be unavailable for trial through his wrongful acts, forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

– Senate Bill 275 enhances the penalty for the offense of leaving the scene of an accident resulting in the death of a person from a 3rd Degree Felony to a 2nd Degree Felony. – Upon conviction for a 1st Degree Felony Engaging in Organized Crime offense, Senate Bill 549 enhances the minimum penalty from five to fifteen years in prison. In addition, there is an automatic life sentence without parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 or older and the victim was either younger than six; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

– House Bill 2539 places a duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography. It is a Class B misdemeanor offense if the computer technician fails to make such report.

– Senate Bill 12 suspends evidentiary Rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of the trial regarding a separate enumerated sex offense that the defendant has committed. While evidentiary Rules 404 and 405 prohibit the use of evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait, Senate Bill 12 allows such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Senate Bill 12 further requires the trial judge to make a determination that the defendant committed the separate offense beyond a reasonable doubt prior to the introduction of this evidence and outside the presence of the jury.

– Senate Bill 2 was passed in an effort to address the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). This posed a unique issue for 17 year olds in Texas, who are treated as adults and not juveniles. Prior to the passage of Senate Bill 2, the only punishment available for an individual (17 and older) who was convicted of capital murder was either an automatic life sentence in prison without the possibility of parole or the death penalty. In an effort to address the unconstitutionality of this punishment on those younger than 18, Senate Bill 2 provides that an individual younger than 18 who is convicted of capital murder be punished with an automatic life sentence in prison with the possibility of parole.

– House Bill 434 expands the list of those who are authorized to draw blood from an individual during a DWI investigation. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. Now, the list of those authorized to draw blood also includes emergency medical technicians and paramedics. This bill allows for a person’s blood to be drawn without having to transport the individual to a separate facility, such as a hospital, during an intoxication-related investigation.

– House Bill 1862 removes switchblade knives from Texas’ prohibited-weapons statute. There are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

– Senate Bill 821 brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers or “hot drafts.”

If you have a question about how these changes in the law might affect your criminal case, please call us at (817) 993-9249.

Aug 07
Love1

KNOW YOUR RIGHTS – Being Accused in Texas

By Criminal Defense

KNOW YOUR RIGHTS – Being Accused in Texas

Be informed. Be aware. Maintain your composure. Your Liberty is at stake. Every day, Texas citizens have interactions with Texas law enforcement. If you have an encounter with law enforcement it is extremely important that you realize that a police officer does not represent you and is not looking out for your legal interests. Only an attorney can do that. You must stay informed and aware of your rights in order to ensure that the Government does not abuse its power. Under the United States and Texas Constitutions and the Texas Code of Criminal Procedure, every citizen has the following rights:

  • THE RIGHT to be informed of the specific offense(s) alleged to have been committed.
  • THE RIGHT to remain silent. Any statement a person makes, oral, written, or non-verbal [nodding of the head] may be used as evidence against that person in a trial by the State of Texas in court or in other judicial proceedings.
  • THE RIGHT to an attorney for any offense other than a class c misdemeanor.
  • THE RIGHT to obtain an attorney of the person’s own choosing, at that person’s expense, for any offense.
  • THE RIGHT to consult with an attorney and to have a lawyer present during any interrogation.
  • THE RIGHT to terminate an interview or interrogation at any time.
  • THE RIGHT to refuse to give consent to search.
  • THE RIGHT against self-incrimination.

NEVER TALK TO OR FOLLOW THE ADVICE OF INVESTIGATORS  WITHOUT FIRST OBTAINING THE ADVICE OF AN ATTORNEY

GENERAL ADVICE

A suspect has a legal, moral and constitutional right to remain silent and place the burden of overcoming the presumption of innocence and proving his or her guilt beyond a reasonable doubt on the officers, investigators, and attorneys for the government. A suspect should never make an oral, written, or non-verbal statement concerning suspected criminal conduct, even to close friends or relatives without first consulting an attorney. Your best friend can turn out to be your biggest problem at trial and your family members can sometimes be compelled to testify against you. Also, BEWARE of the fact that a routine law enforcement tactic is to monitor and record phone or personal conversations between a suspect and the alleged victim or other persons which may play a role in the case. Criminal investigators work to protect the interest of the government and not the interests of the suspect. ONLY a suspect’s personal attorney can and will work to protect the interests of the suspect. During an interview or interrogation, some officers or investigators may use the “good guy-bad guy” technique in which one acts rough and tough and the other one sympathizes and tries to “help” the suspect. The officers or investigators can legally lie to or deceive a suspect in an effort to get a statement, so be careful! These people are highly trained to elicit incriminatory statements from suspects. The safest thing to do is to simply refuse to talk (or even listen to) the investigators. The request for an attorney must be a clear, unequivocal insistence to speak to an attorney; Comments like “do I need an attorney” or “I think I want an attorney” are NOT sufficient to invoke the right to counsel and to terminate the interview. A suspect may be ordered by a judge to give certain samples (handwriting, hair samples, blood, etc). When possible, consult an attorney before doing so or as soon as possible afterwards, especially if ordered to do so over your objection. NEVER CONSENT to the taking of evidence, except for your fingerprints and photograph. Make the investigator get a search warrant. An investigator does not have authority to direct that a suspect produce evidence, except photographs and fingerprints. If a suspect finds that an appointment has been made for him/her with a physician, drug/alcohol counselor, social worker, or psychiatrist, the suspect should contact an attorney first because conversations between suspects and anyone other than his/her attorney(s) are not privileged or confidential under the law. Communications between a suspect and his/her attorney or agent for the attorney (paralegal) are privileged, unless the communication clearly contemplates the future commission of an illegal act.

SEARCHES AND SEIZURES

A suspect should NEVER CONSENT to a search of his/her person or property without first consulting an attorney. A suspect should make it perfectly clear to the authorities that he/she does not consent, but if the authorities persist, a suspect should never physically resist. There are many theories upon which a search may be legally justified and an attorney will examine he facts of the search at a later time to determine if law supported it. If a suspect legitimately consents to the search, however, there are no legal issues. IMPORTANT: A person who does consent to a search may withdraw that consent at any time during a search. IF YOU CONSENT TO A SEARCH, ANY EVIDENCE FOUND COULD BE USED AGAINST YOU! Force the authorities to get a lawful search warrant.

APPREHENSION, ARREST, AND CONFINEMENT

In many cases, investigators do not physically “arrest” a suspect. After questioning or contact by the investigators, the suspect is usually released. When confronted by investigators, a suspect should never run away or physically resist apprehension, arrest, or confinement, whether that person is innocent or guilty. He/she should always go along peacefully with the authorities, while asking that an attorney be made available before any questioning. Any resistance or flight, even if innocent, can be considered as evidence of guilt. Additionally, resisting apprehension can lead to additional charges being added and/or pre-trial confinement. Pre-trial confinement can occur under very limited circumstances, where the officer or investigator determines that the suspect is a “flight risk,” a danger to the community or to himself, or is likely going to continue the misconduct if not put into pre-trial confinement.

POLYGRAPHS

Polygraphs are frequently used by law enforcement personnel. Under no circumstance should a suspect agree to take a polygraph with the law enforcement agency without advice of counsel. Remember it is permissible for investigators to lie to the suspect, so a suspect could actually “pass” a polygraph, but be told by the examiner that he “failed” the polygraph; the fact that a person is actually telling the truth in no manner means that the polygraph will indicate no deception. Polygraphs are notoriously unreliable, so much so that they are inadmissible in court.

GOOD CONDUCT BEFORE TRIAL

Waiting for your trial date to arrive will be a very difficult time for you. It is extremely important however that you avoid any additional problems prior to trial. As difficult as it will be, you must maintain an excellent attitude at all times and strive to be a productive member of society.

Jul 23
Love1

Border Patrol Agents Violate Fourth Amendment in Terry Stop But Conviction Upheld

By Warrantless Search

United States v. Hernandez-Mandujano, (5th Circuit June 27, 2013)

Border Patrol agents stopped Appellant as he was driving on Interstate 10, approximately 450 miles from the nearest United States-Mexico border crossing. The agents believed Appellant was transporting illegal aliens because he was driving an SUV; had both hands on the steering wheel, and he was not exhibiting the relaxed nature of most drivers. In addition, Appellant’s speed dropped from 70 miles per hour to 60 miles per hours as the agents followed him, and when the agents pulled alongside Appellant, he stopped talking to the person in the passenger’s seat.

The agents learned the car was registered to a woman; however, it had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently crossed the border. During the stop, Appellant told the agents he was a Mexican national in the United States illegally. The government indicted Appellant for reentry without permission by an alien deported after conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2).

At trial, Appellant moved to suppress his statements to the agents, arguing the stop could not be considered an extended border search and the agents lacked reasonable suspicion to conduct a Terry stop. The district court agreed the stop was not an extended border search, but held the agents had reasonable suspicion of illegal activity to support a Terry stop.

The 5th Circuit Court of Appeals held the agents did not have reasonable suspicion to stop Appellant. First, the stop occurred 450 miles from the nearest border crossing and there was no reason to believe Appellant had come from the border. Second, Appellant’s driving posture speed change and the fact the SUV was registered to a woman was not indicative of criminal activity. Third, the SUV had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently been documented as crossing the border. Finally, the agents could not identify anything about the SUV that rendered it more likely than other SUVs to be transporting illegal aliens.

Even though the agents violated the Fourth Amendment in stopping Appellant, the court still denied Appellant’s motion to suppress. The court noted previous Fifth Circuit case law held an alien’s INS file and identity are not subject to suppression when law enforcement officers learn of a deported alien’s unlawful reentry after an allegedly unconstitutional stop.

May 30
Love1

Three Participants Does Not Automatically Constitute “Organized Crime”

By Organized Crime

Organized CrimeSome prosecutors and state investigators out there believe that if there are three participants in an alleged offense, then there is evidence of “Engaging in Organized Criminal Activity.”  Not so.  At least not every time.

As THIS ARTICLE from TDCAA explains, the State needs more if it wants to charge someone in Engaging in Organized Criminal Activity.

Says law school pal of ours, Ben Hoover:

“When it comes to proving an EOCA case in Texas, there is more required than just proving that three or more persons committed a crime or even multiple crimes. The law requires proof of an ongoing course of criminal activity.”

Ben provides several good case references in the article which give examples of fact scenarios where the courts of appeals have held the certain conduct did not constitute Organized Crime.  Check it out.  It helped us get a EOCA charge dismissed recently.  It may help you too.