News and Insights

Some 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.

U.S. Supreme Court holds:  "In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant." 

, No. 11-1425 (U.S. Apr 17, 2013). The Defendant was charged with DWI.  He filed a motion to suppress the results of a warrantless blood draw that was taken without a valid search warrant.  The trial court granted the motion to suppress.  The Missouri Supreme Court affirmed the grant of the motion.  The U.S. Supreme Court granted certiorari to resolve a split of authority.

The U.S. Supreme Court affirmed the Missouri Supreme Court. Kennedy concurred. Roberts concurred in part and dissented in part. Thomas dissented. The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.  The Court held that it did not.  While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically.

Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances.  Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.  The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.  Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.

In Abney v. State, the Texas Court of Criminal Appeals considered whether an officer had reasonable suspicion to initiate a traffic stop when a vehicle was driving in the left lane of a road without passing.  There was a road sign that prohibited driving in the left lane without passing, but it was located over 20 miles away from where the Appellant was pulled over.

As tends to happen, the police officer found marijuana during the traffic stop. At trial, and on appeal, the Appellant claimed that he did not commit a traffic violation because the road sign was not anywhere near where the stop occurred.  The trial court and 5th Court of Appeals (Dallas) overruled this argument.  The CCA, on the other hand found it meritorious.

The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a "left lane for passing only" sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.

The CCA reversed the Court of Appeals and held that the officer lack reasonable suspicion to justify the traffic stop.  The evidence should have been suppressed at trial.

United States v. Gonzalez-Garcia, 2013 U.S. App. LEXIS 3366 (5th Cir. Tex. Feb. 15, 2013)

A federal agent saw Appellant walk out of a house under surveillance as part of a drug investigation.  The agent approached Appellant, handcuffed him and placed him in his police vehicle.  Without advising Appellant of his Miranda rights, the agent asked him if he was guarding a drug-house and if there were drugs in the house.  Appellant replied, "Yes" to both questions and then requested an attorney.  The agent asked Appellant for consent to search the house, which Appellant granted.

The agents found over two thousand kilograms of marijuana in the house. The district court suppressed Appellant's admissions that he was guarding marijuana in the house because they were obtained in violation of Miranda, which the government conceded on appeal.  However, the district court refused to suppress the marijuana recovered from the house.

First, Appellant argued the marijuana should have been suppressed because the agent obtained consent to search from Appellant after he requested an attorney.  Second, Appellant claimed the agents' use of his admissions, which were later suppressed, automatically rendered his consent to search involuntary. The Court disagreed.

In Edwards v. Arizona the Supreme Court held when an accused invokes his right to counsel, he is not subject to further questioning until counsel has been made available to him.  However, a violation of the Edwards rule does not require suppression of physical, non-testimonial evidence.  Consequently, even if the agent violated Edwards when he asked Appellant for consent to search the house, that violation would not justify suppression of the marijuana, which is physical, non-testimonial evidence.

Next, the court held Appellant's consent was not automatically rendered involuntary because his Miranda rights were violated.  Such a rule is not consistent with the multi-factor approach courts must use when determining voluntariness.  Using that approach, and considering the Miranda violation, the district court found Appellant voluntarily consented to the search of the house.

The Court of Criminal Appeals does not like dog scent lineup evidence.  While it has not come right out and declared such evidence categorically inadmissible (like polygraph evidence), it seems pretty close.  With each new dog scent lineup case, we learn how unreliable this type of evidence can be.

In Winfrey v. State, the CCA overturned a capital murder conviction wherein the evidence included a dog scent lineup.  The Court noted that the dog scent lineup along with the remainder of the evidence (all of it circumstantial) was only enough to raise a "suspicion of guilt," but not enough to prove guilt beyond a reasonable doubt.  The CCA overturned the conviction as being legally insufficient.

*Anytime we have a case involving a drug dog, we employ an expert consultant to review the dog handling technique of the officer. One of the best drug dog experts in Steve Scott with Scott's Police K9 LLC in Flower Mound, Texas.