News and Insights

United States Supreme Court | Search and Seizure Update

We expect that police officers know the law.  After all, they are charged with upholding the law.  But what happens when an officer makes a traffic stop based on an incorrect understanding of the law and then finds evidence of another crime during his improper stop?  The Supreme Court recently considered this scenario in the case outlined below:

In Heien v. North Carolina, a North Carolina police officer stopped a man for driving with one broken brake light.  The driver later gave consent to the officer to search his vehicle. The officer discovered cocaine charged the driver with trafficking cocaine. The driver argued that the officer made a mistake of law for stopping him on one faulty brake light and not two (which is what NC law requires) therefore evidence should be suppressed.  The NC vehicle code makes clear that the officer was mistaken when making the traffic stop.

The Supreme Court granted cert to review the case and the question of whether an officer who makes a mistake of law still gives rise to reasonable suspicion. They Court ruled that the officer's mistake of law was objectively reasonable and that ultimately, the Officer had reasonable suspicion to conduct the traffic stop.  In so holding, Chief Justice Roberts wrote "The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials 'fair leeway for enforcing the law.'"

While not dealing with specific state law in Texas, the ruling in this case did address reasonable suspicion as it relates to unreasonable searches prohibited by the 4^th Amendment.  Article 38.23 of the Texas Code of Criminal Procedure states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

While Article 38.23 of the Texas Code of Criminal Procedure provides an exception if an officer is acting in objective good faith reliance on a warrant, it does not give a reasonable suspicion exception to conduct a search.  Clearly, the Heien opinion will be cited by the State to support searches even when the initial stop is conducted illegally.  We will just have to wait and see how our Texas Courts will react in light of Heien v. North Carolina.

Can a bad contractor be convicted for theft?

If you've ever gone through a home renovation or something similar, you have likely experienced periods of frustration with your contractor or construction crew.  This may stem from missed deadlines, shoddy workmanship, mistakes, or general incompetence. In extreme cases, you might have felt duped by the contractor, so much that you think he should be held criminally liable for the promises on which he failed to deliver.

Can a contractor be held criminally liable for his failures?  Texas law says YES (in certain circumstances).

In a recent case out of the Texas Court of Criminal Appeals, the court upheld the felony criminal conviction of a contractor for theft when he accepted money and failed to deliver under the contract for services.  The court explained that in most cases, dissatisfied consumers will have to resort to the civil courts, but in extreme cases, a contractor could be convicted of theft when he accepts money and utterly fails to perform.

You can read the full opinion of the court regarding Contractor Theft.

Barnett Howard & Williams PLLC is a criminal defense law firm in Fort Worth, Texas.  Call us today for a free consultation of your criminal matter at (817) 993-9249.

Obscure Texas Traffic Offenses | Fort Worth Criminal Attorneys

Many of our criminal cases begin with traffic offenses. Something as simple as failing to signal for a lane change can quickly become a DWI investigation if the officer suspects the driver has been drinking. Often, during a traffic stop an officer will ask for consent to search the vehicle and then, depending on what might be in the car, the traffic stop turns into an arrest for possession of an illegal substance or contraband. (Tip: Never give consent to search. Ever.)

We put our heads together to think about some of the more obscure traffic violations about which drivers may not know. We have listed four of them below. The officers on the road know about them, so you should too.

Sec. 544.010(c) - Stopping before the crosswalk or white line. When you approach a streetlight or stop sign you must stop before the white line (or crosswalk line), regardless of where the stop sign or streetlight is positioned. Many times the actual stop sign will be a few yards in front of the line, just begging you to inch a little closer. Resist the urge to stop at the sign. There's probably a traffic cop right around the corner just waiting for you to mess this one up. (If you are a person that remembers rhymes better...Stop at the line, not at the sign!)

Sec. 545.104(a) - Signal intent to start from a parked position. This is one that I'll admit I did not know about. When you are parallel parked on a street and you wish to enter the roadway, you must signal your intent to do so. Put on your turn signal and then begin driving into the roadway. (Signal when parked, before you depart.)

Sec. 545.104(b) - Signal turn/lane change 100 feet prior to turn/lane change. We all know that we must signal when making a turn or changing lanes, but many folks do not know that it must be done 100 feet prior to the movement. If you must make a quick turn, any signal is better than none, but the rule says 100 feet. (Before you change lanes or turn on the street, you must signal for 100 feet.)

Sec. 547.322(f) - Separate lamp must be mounted to rear license plate and be visible from 50 feet. You cannot rely on your taillights to illuminate your license plate in Texas. Your license plate, like a special work of art hanging in the lobby of some fancy building, must have its own light so that everyone can clearly read your vanity plates proclaiming IMCOOL. Further, the license plate must be visible from 50 feet away. (When driving at night, do what's right. Give your license plate a light.)

We were asked this week to name our law firm's greatest achievement.  Hmm... We've experienced quite a few successes over the past several years; acquittals, dismissals, no bills.  We've built strong relationships with people in the Fort Worth community.  We've been fortunate enough to help many clients.  But our greatest achievement...

After some thought, we knew our greatest achievement.

Our greatest achievement is the warm hug or firm handshake of a grateful client.

Just the other day we completed a criminal case in Tarrant County where the client's parents had come to court to watch.  After the case was over we had a chance to speak with the parents in the hallway of the courthouse.  Our client's mother was so thankful and through her tears asked if she could give us a hug.  That was the biggest compliment we could ever receive.  It was the overflow of her heart and in that moment, we knew we had made a difference in their lives.

We absolutely love what we do.  We get to help real people.  We are thankful for the opportunities to be a blessing.  We know that it is no accident when a client walks into our office.  Praise God for His plans and His purposes.

Is it a violation of the 4th Amendment prohibition against unreasonable search & seizure for a police officer to search a suspect's cell phone without a warrant?

U.S. Supreme Court Holding: YES - The 4th Amendment prohibits officers from searching a suspects cell phone for information without a warrant.

Riley v. California; U.S. v. Wurie, (Consolidated by the Supreme Court in one case) 2014 U.S. LEXIS 4497 (U.S. June 25, 2014)

Riley v. California: In this case, Police officers arrested Appellant and searched the cell phone he was carrying incident to his arrest. The officers discovered photographs and videos on Appellant's cell phone that were admitted as evidence against him at trial. As a result, Appellant was convicted. The California Court of Appeal affirmed the conviction, holding that the warrantless search of Appellant's cell phone incident to his arrest was lawful.

U.S. v. Wurie: In this case, Police officers arrested Appellant for distribution of crack cocaine and seized two cell phones from him. Officers searched the call log on one of the cell phones and determined the phone number labeled "my house" was associated with a nearby apartment. Officers went to the apartment and saw the name "Wurie" written on the mailbox. The officers obtained a warrant, searched the apartment and found drugs and firearms.

Appellant filed a motion to suppress the evidence seized from his apartment, arguing the officers violated the Fourth Amendment by searching his cell phone incident to arrest. In reversing Appellant's conviction, the First Circuit Court of Appeals held the search incident to arrest exception to the Fourth Amendment's warrant requirement did not authorize the warrantless search of data on cell phones seized from individuals arrested by police officers.

The Supreme Court consolidated the cases, holding that police officers generally may not search digital information on a cell phone seized from an individual who has been arrested, without first obtaining a warrant.

Previously, the court held police officers could conduct warrantless searches of arrestees and possessions within the arrestees' control, incident to a custodial arrest. The court concluded such searches were reasonable in order to discover weapons or any evidence on the arrestee's person so that evidence could not be concealed or destroyed.

The court concluded this rationale does not apply to modern cell phones. First, digital data stored on a cell phone cannot be used as a weapon to harm an arresting officer or aid an arrestee in escaping. The court emphasized that police officers may still examine the physical aspects of phone to ensure that it will not be used as a weapon. For example, the court noted a police officer may examine a cell phone to determine whether there is a razor blade hidden between the phone and its case. However, once an officer has secured a phone and eliminated any potential threats the data on the phone cannot harm anyone.

Second, the court stated the government provided little evidence to believe that loss of evidence from a seized cell phone, by remote wiping of the data on the phone, was a common occurrence. Even if remote wiping were a concern, the court listed two ways remote wiping could be prevented. First, the officer could turn the phone off or remove its battery. Second, the officer could put the phone inside a device, called a Faraday bag, that would isolate the phone from radio waves. The court added that Faraday bags are cheap, lightweight, and easy to use and a number of law enforcement agencies already encourage their use. In addition, the court commented that if a police officers are truly confronted with individualized facts suggesting that a defendant's phone will be the target of an imminent remote wiping attempt, they may be able to rely on exigent circumstances to search that phone immediately.

The court further recognized that cell phones are different from other objects that an arrestee might have on his person. Before cell phones existed, a search of an arrestee generally constituted a small intrusion on the arrestee's privacy. However, modern cell phones are, in essence, mini-computers that have immense storage capacity on which many people keep a digital record of nearly aspect of their lives. Consequenly, the warrantless search of a cell phone consitutes a significant intrusion upon a person's privacy. If police officers wish to search a cell phone incident to arrest, they need to obtain a warrant.