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5th Circuit Archives | Page 4 of 5 | Fort Worth Criminal Defense, Personal Injury, and Family Law

Feb 17
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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.

Jan 01
0
Search of cell phones

Limits of the 4th Amendment in an iPhone Culture

By | Drug Crimes

Does the 4th Amendment apply to a Cell Phone Search?

Search of cell phonesBoy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person’s cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

Dec 16
0
Fort Worth Drug Crimes Attorneys

Vigilant Border Protection

By | Drug Crimes

Fort Worth Drug Crimes AttorneysOut near El Paso, the law enforcement folks are pretty anal about boundaries.  Apparently, their “border-protection” mentality applies equally to law enforcement officers from neighboring jurisdictions.  Below is a summary from a federal quarrel between officers of El Paso and Hudspeth Counties.  While it isn’t directly on point for this blog, it is tangentially related to Texas criminal law and it has a little bit of 4th amendment seizure flavor to it.

Short v. West, Fifth Circuit Court of Appeals – November 2, 2011

Appellant was an officer in the El Paso Police Department, (EPPD) assigned to a narcotics task force for the 34th Judicial District. The 34th Judicial District includes both El Paso and Hudspeth counties. While conducting a task force related traffic stop in Hudspeth County, appellant encountered a Hudspeth County Sheriff Department (HCSD) deputy who asked him what he was doing there.  Appellant identified himself to the satisfaction of the deputy and told her that EPPD task force officers were working in Hudspeth County.  The deputy contacted her dispatcher who in turn called Hudspeth County Sheriff West and told him that EPPD officers were performing traffic stops in Hudspeth County.  Sheriff West ordered his deputies and find out whether the EPPD officers were, in fact, law enforcement officers.  Sheriff West also ordered his deputies to round up the EPPD task force officers and escort them to his office.

A lieutenant in the HCSD located appellant’s supervisor, who produced identification showing him to be an officer with the EPPD and the task force.  Appellant’s supervisor ordered him and the other task force members to return to El Paso County.  While on the way back to El Paso County, appellant and several task force members were stopped and surrounded by HCSD deputies.  The HCSD deputies ordered appellant and the other task force members to go to a nearby HCSD substation.  They were told that they would be arrested if they failed to comply.  Appellant and the task force members went to the HCSD substation where Sheriff West complained that he had not been notified of the task activities in his county. He then told the task force officers that they were free to leave.  Appellant sued Sheriff West under 42 U.S.C. § 1983 for violating his rights under the Fourth Amendment.

The court held that Sheriff West was not entitled to qualified immunity.  First, the court found that appellant was seized for Fourth Amendment purposes. The HCSD deputies surrounded the task force officers’ vehicles preventing them from returning to El Paso County.  In addition, appellant was threatened with arrest if he did not accompany the deputies to the HCSD substation.  A reasonable person would not feel free to ignore such a show of force and go about his business.

Second, the court found that such a seizure was objectively unreasonable.  Sheriff West ordered the task force officers to be detained and brought to the HCSD substation so he could personally examine them. This was not likely to quickly confirm or dispel his suspicions as to whether or not the task force officers were legitimate law enforcement officers.  There were less intrusive ways to accomplish this.  Sheriff West could have contacted the EPPD Chief, whom he knew or he could have run the license plates on the task force officers’ vehicles. It was unreasonable to not recognize or pursue these options as alternatives to seizing Short.

Nov 17
0
Right to a lawyer

An Ambiguous Request is No Request at All

By | Miranda, Right to Counsel

Right to a lawyerIn a recent case from the U.S. Court of Appeals for the Fifth Circuit (Federal), the court considered whether police interrogation of a suspect violated the suspect’s constitutional right to an attorney when the suspect voluntarily continued the conversation with the officers.

United States v. Carillo – While the defendant was in jail on a parole violation, officers went to interview him about his involvement in a drug distribution conspiracy.  After being read his Miranda rights, the defendant invoked his right not to be questioned without an attorney present.  The officers stopped talking to him and left.  The next day the defendant told jailers that he wished to speak to the officers from the day before.  The officers returned to the jail, advised him of his Miranda rights, which then led to a discussion about the defendant’s right to an attorney.  The defendant made three comments during this time.  He told the officers, “I wish I had a lawyer right here,” “I wanted to see if we could push this thing to where I could get my lawyer,” and “I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it.” After one of the officers told the defendant that he would get an attorney at his arraignment, the defendant asked the officer what would happen if he agreed to talk to the officer now.  The kind and helpful officer told the defendant that he would just be cooperating and helping himself and once he got into the federal system he would get an attorney.  Hearing those words of encouragement, the defendant agreed to talk to the officers and (of course) made several incriminating statements, which led to his conviction.

On appeal, the appellant contended that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona, 384 U.S. 436 (1966).

The 5th Circuit recognized that the defendant’s three comments, when viewed separately, appeared to indicate that he was invoking his right to counsel.  However, the Court held that when considering the entire context in which the defendant made the comments, a reasonable police officer would not have understood him to be saying that he wanted to stop talking with the police without an attorney present.  The court held that the defendant’s comments to the officers were ambiguous at best.  They expressed the defendant’s preference to have an attorney present, however, the fact that he kept talking to the officers indicated that he also wished to keep the interview going and not to end it by invoking his right to counsel.  The defendant re-initiated communication with the officers after he ended the interview the day before by invoking his right to counsel, so he was clearly aware of how he could end the interview.  The defendant was merely weighing the pros and cons of talking to the officers without an attorney present which he eventually decided to do.

Oct 13
0
5th Circuit Terry Stop

Time’s Up! Your Terry Stop is Over. Please Return to Your Squad Car.

By | Uncategorized

5th Circuit Terry StopThe Fifth Circuit Court of Appeals (Federal) issued an opinion on September 27, 2011 in United States v. Macias, addressing an unconstitutional search and seizure by a Trooper in Pecos County, Texas.  On November 22, 2009, Trooper Juan Barragan stopped Robert Macias, Jr. for failure to wear his seatbelt.  Upon stopping the defendant, Trooper Barragan started asking him questions.  His initial questions dealt with common issues such as the defendant’s purpose for traveling and the defendant’s lack of insurance.  As time went on Trooper Barragan began asking more and more questions unrelated to the reasons he stopped the defendant in the first place.  After his initial questions, the trooper asked the defendant about his employment and the specific reason he was traveling to see a doctor.  The trooper also repeated questions that the defendant had already been asked and had answered.  The initial exchange between the two took approximately two minutes.

After the initial exchange, the trooper asked the defendant to come back to his patrol car with him.  The trooper then began to ask the defendant another series of questions.  Trooper Barragan asked if the defendant had his “own little company” and if he had ever “been in trouble before.” This second series of questions lasted approximately one minute.  The trooper then went back to the defendant’s vehicle (it was actually he defendant’s sister’s vehicle) and asked the defendant’s passenger a series of questions regarding her relationship with the defendant and the purpose of their trip.  Two more minutes elapsed during this series of questions.  The trooper then went back to the defendant and asked him more questions at which point he elicited from the defendant that he had been previously imprisoned for an attempted murder conviction.  The trooper then told the defendant that he was going to go back to his patrol vehicle and write him a citation for failure to wear his seatbelt.  Eleven minutes elapsed from the time that the defendant had been pulled over to the time that he received the citation.

Ten minutes after returning to his patrol car, the trooper returned to the defendant and gave him the citation.  The defendant signed the citations.  Then, just as the trooper was about to leave, he asked the defendant for consent to search his vehicle.  The defendant protested that there was nothing in the vehicle, but he ultimately gave consent to search the truck after his protestations were met by the trooper noting that the defendant has a “shady” background.  Seventeen minutes after he began the search of the truck, and forty-seven minutes after initiating the stop, Trooper Barragan found an unloaded firearm and ammunition in a closed bag belonging to the defendant.

A grand jury indicted Macias for being a felon in possession of a firearm.  Macias moved to suppress the firearm as fruits of an unconstitutional detention.  The district court denied Macias’s motion to suppress and Macias entered a conditional plea of guilty with the option to appeal the district court’s denial.

The Fifth Circuit analyzed the legality of the stop based on the traditional Terry v. Ohio analysis.  392 U.S. 1 (1968).  The Court first looked to whether the Terry stop of the vehicle was justified at its inception and then whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.  Macias conceded that the stop was valid, but that the Trooper exceeded the scope of the stop when he asked questions unrelated to the purpose and itinerary of the trip.  Macias argued that these questions impermissibly extended the duration of the stop without developing reasonable suspicion of additional criminal activity.

The Court cited various cases including United States v. Pack, 612 F.3d 341 (5th Cir.), which held that an officer may ask questions on subjects unrelated to the circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop.  Macias’s argument was that the Trooper’s actions after the stop unconstitutionally extended the duration of that stop.  Macias specifically noted that the trooper ran computer checks, engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose of the itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. The Fifth Circuit agreed.

The Fifth Circuit noted that the only evidence that the trooper could point to that might lead to reasonable suspicion of additional criminal activity was Macias’s extreme nervousness.  It held that extreme nervousness in and of itself was not sufficient to support the extended detention.

The Fifth Circuit ultimately concluded that the search of the truck violated the Fourth Amendment (Terry Stop prohibitions) and that all evidence resulting from that search should have been suppressed.  Macias’s judgment of conviction was reversed and vacated and the case was remanded for entry of judgment of acquittal.

The case contains a lot of applicable case law (a horn book in itself) for attorney’s practicing in the Fifth Circuit in regards to Fourth Amendment searches and seizures.

Sep 20
0
5th Circuit United States v. Soto

Show Me Your Green Card | 5th Circuit Immigration Case

By | Immigration

5th Circuit United States v. SotoIn United States v. Soto, a case decided last month, the 5th Circuit Court of Appeals (Federal) affirmed appellant’s conviction for unlawfully transporting an illegal alien.  The court admitted that this was a close case, but ultimately affirmed the ruling of the trial court denying the appellant’s motion to suppress.

Facts:  Immigration case.  Upon seeing Border Patrol agents, a passenger in appellant’s vehicle, exhibited a look of shock and immediately ducked down and slumped back, out of the agents’ sight. (The Court held that the only plausible explanation for this behavior is that the passenger was attempting to hide from the agents.)  Adding to the agents’ suspicion, when they pulled up alongside appellant’s vehicle, the passenger’s darkly tinted rear window, which was halfway down when the agents first saw it, had been completely rolled up.  Finally, the agents made their observations sixty miles from the border on a route known for illegal alien trafficking.
The 5th Circuit applied the Supreme Court standard for reasonable suspicion that was laid out in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), wherein the Court held,

factors that may be considered in determining reasonable suspicion include: (1) the area’s proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior.

Explaining that no single factor is determinative in this test, the court held that under the totality of the circumstances, the court held that the conduct witnessed by the Border Patrol agents was sufficient to create reasonable suspicion of illegal activity to justify the traffic stop.

Aug 17
0
Warrantless GPS search attorneys Fort Worth

The Evils of Technology | GPS Search

By | Warrantless Search

Warrantless GPS search attorneys Fort WorthI love technology – from tablet computers to smartphones to flat-screen televisions.  If it’s shiny and new and guaranteed to make me the envy of my friends and family, I’ll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we’ve lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother’s truck to track its movements.  Hernandez was arrested while driving his brother’s truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother’s vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents’ use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80’s and 90’s.  Accordingly, the Court upheld the trial court’s denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

Jul 15
0
Gun possession Illegal Alien

Second Amendment Not Written For an Illegal Alien

By | Immigration

Gun possession Illegal AlienThe Second Amendment to the United States Constitution provides:

…the right of the people to keep and bear Arms, shall not be infringed.

But who are “the people?”  Does that include everyone, even illegal aliens?  Nope, says the 5th Circuit.

In a recent case, the Appellant argued that his conviction for being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) violated the Second Amendment. The court held that “the people” referenced in the Second Amendment does not include aliens illegally in the United States. The court noted that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens, and between lawful and illegal aliens, and as a result 18 U.S.C. § 922(g)(5) is constitutional under the Second Amendment.

U.S. v. Portillo-Munoz, (5th Circuit) decided June 13, 2011.  See the full opinion in United States v. Portillo-Munoz.

Read about a different case (with a different conclusion) in Breitbart’s article.

Jul 14
0
Texas cheerleader sues for sex case

Wanna-be Texas Cheerleader’s Lawsuit Falls Off the Pyramid

By | Just For Fun

Texas cheerleader sues for sex caseWhile the 5th Circuit case linked below has nothing to do with criminal law and procedure, it has everything to do with ridiculous Texas shenanigans.  Volokh linked it first.  I found it too good not to note.  Read the case for yourself.  Don’t pass up the footnotes.  It is utter greatness.

Samantha Sanches v. Carrollton-Farmers Branch ISD (5th Circuit – Civil)

Here a teaser:

Samantha Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) (“title IX”) and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

And it only gets better from there.

Jun 14
0
Consent to search passenger

Search of a Passenger’s Handbag Violates 4th Amendment

By | Search & Seizure

Driver cannot give consent to search a passenger’s private bag.

Consent to search passengerUnited States v. Cantu is an interesting case with 4th and 5th Amendment issues coming out the Fifth Circuit. Of course, it’s an unpublished opinion, so it has no precedential value, but it’s a good case on federal criminal procedure.

The Fifth Circuit Court of Appeals (Federal) held that an officer’s warrantless search of Appellant’s handbags, during a traffic stop, violated the Fourth Amendment. Although the driver consented to search of the vehicle, he had neither the actual nor the apparent authority to consent to a search of his passenger’s property. The officer had no authority to search inside Appellant’s closed bags without her consent, which he neither sought nor obtained, and he knew the bags he was searching belonged to her.

After Appellant’s arrest, while being transported to jail, she made incriminating statements to the officer, without having been properly Mirandized. Approximately 4.5 hours later, DEA agents met with Appellant, Mirandized her, obtained a valid waiver and obtained a written confession from her.

The court held that the DEA interrogation and resulting confession were not tainted by the arresting officer’s earlier Miranda violation while transporting Appellant to the jail. There was little continuity between the two interrogations. The arresting officer asked his questions in his patrol car, while different personnel working for a different agency conducted the later DEA interview in a different location. There was a 4.5-hour break between the two interrogations and the DEA agents, in their interview, did not exploit or refer back to Appellant’s earlier statements.

Additionally, the court refused to suppress Appellant’s written confession to the DEA agents based on the arresting officer’s illegal search of her bags. The court held that the illegality of the search was clear however, the connection between the evidence it produced and Appellant’s confession to the DEA agents was weak. There was nothing to indicate that the discovery of a small amount of marijuana in the bags compelled Appellant to confess to possession of a large quantity of cocaine later found hidden in the vehicle. Further, Appellant was provided Miranda warnings, interviewed by different officers from a different agency and approximately seven hours had passed between the search of Cantu’s purse and the receipt of her written confession.

The full circumstances of the DEA interrogation served to purge the taint of the earlier illegal search.