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Oct 21
Love3
Pretext Phone Call Texas Sexual Assault

Pretext Phone Calls in Sexual Assault Investigations

By Sex Crimes

Pretext Phone Call Texas Sexual AssaultDid you ever get the feeling like someone is recording your conversation? Texas is a one party consent state meaning your conversations can be recorded and listened to by third parties as long as one party to that conversation consents. In sexual assault investigations, especially where the victim knows the suspect, investigators often use recorded phone calls between the suspect and the complaining witness of the alleged assault. These recorded calls are called “pretext” phone calls. Not only will these phone calls be used to build a case against a suspect but might also be used in court against the suspect.

What is a Pretext Phone Call?

A pretext phone call is a tool used by police officers in the early stages of investigation, especially in sexual assault investigations. It is a tape recorded phone call between the victim and the suspect made by the victim or a close friend of the victim. The phone calls will be made under the supervision of police officers and most preferably the lead investigator or detective. The victim will be provided with all of the equipment necessary to record the phone call. Additionally, the victim will be given direction by the officers on the time of day or night to call the suspect, what type of questions to ask the suspect, and what to prepare for. The victim will be told to ask questions in certain ways that are more likely to solicit an incriminating response instead of just going full speed ahead with the “Why did you rape me?” question, which, for good reason, will cause the suspect to shut down or become defensive stating they did no such thing. An example of a question a victim might told to ask is “Why did you have sex with me after I pushed you way and told you to stop?”

The purpose of pretext phone calls is to, hopefully, obtain an incriminating statement by the suspect. The statements made by the suspect will be used to build the case against the suspect by corroborating information that the victim has told the police officers and help make victim testimony more credible in front of a jury.

Pretext Phone Calls—Used in Drug or Alcohol Related Sexual Offenses and Where the Victim and Suspect Know Each other

Pretext phone calls are often utilized in cases where the victim and suspect know each other. This is because the victim will already have the suspects phone number and vice versa or the victim can come up with a creative way for how they got the suspect’s number, i.e. “I got your number from John Doe, our mutual friend.” Also, they can be particularly helpful in drug and alcohol related sexual assault cases where they knew each other, even if only acquaintances. In such an instance, the victim will be directed to ask questions such as, “You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why?”.

When Can Pretext Phone Calls Be Made Under Texas Law?

Preferably, pretext phone calls should be made before the suspect knows there is an investigation against him. For legality purposes, pretext phone calls must be made before a suspects Sixth Amendment right to counsel attaches. Rubalco v. State, 424 S.W.3d 560. The Sixth Amendment right to counsel attaches “at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Id.

Thus, if there are no Sixth Amendment issues, pretext phone calls will likely be admissible against the suspect in trial. Id.

Be Aware That Your Phone Conversations Might Be Used Against You

Being in the state of Texas we should all be aware that every phone conversation we have can legally be recorded but you should be especially aware if the conversation gets serious. If you have any “hunch” that an investigation against you might be underway for an alleged sexual assault, contact our experienced attorneys today to learn your rights during these investigations.

Feb 09
Love4
Juvenile Statements Child Police Interrogations

The Admissibility of Juvenile Statements When Taken By Police

By Juvenile

Juvenile Statements Child Police InterrogationsThe juvenile justice system in Texas is a hybrid system which incorporates major elements of the adult criminal system, while maintaining separate rules and procedures to ensure that juveniles are not treated or labeled as criminals. In keeping with this philosophy, there are some special rules that apply when police officers take statements from juvenile suspects. This article will explain these rules and when they apply.

Two Types of Juvenile Statements

There are two types of statements: those taken as a result of custodial interrogation and those that are taken without custodial interrogation. There are different rules that apply, depending on which type of statement it is.

Voluntariness of the Statement

Historically in America, confessions have been looked at cautiously. This is because the police interrogation process has always been thought to be coercive by its very nature. The primary concern when viewing a statement given by a suspect is voluntariness. Therefore, no statement can be used in court unless it was voluntarily given. This voluntariness requirement applies to juvenile statements too. For noncustodial statements, voluntariness is the only requirement.

When looking at whether a juvenile statement was voluntary, the courts look at the totality of the circumstances. This means that the court will evaluate the situation including a child’s age, experience, background, education, intelligence, and their capacity to understand their rights and the consequences of waiving them. If, after considering all of the relevant factors in a particular case, the court determines that a noncustodial juvenile statement was voluntary, then it will be admissible in court against that juvenile.

Custodial Interrogation

A police officer that takes a juvenile’s statement as a result of custodial interrogation must not only ensure that the statement was voluntarily given, but also must comply with specific rules set out in the Texas Family Code. But first, you must ask two threshold questions: (1) Was the juvenile in custody? and (2) Was the juvenile being interrogated?

(1) Was the Juvenile in Custody?

Texas Family Code Section 51.095(d) considers a child to be in custody if he is in a juvenile detention facility, is in the custody of a police officer, or if he is in CPS custody and suspected of engaging in delinquent conduct. The Texas Court of Criminal Appeals decided that “in custody” means when a reasonable person, under the circumstances, would believe that his freedom was restricted to the point of a formal arrest. See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). The Texas courts use a “reasonable innocent child” standard when looking at juvenile cases. See In the Matter of L.M., 993 S.W.2d 276 (Tex. App.—Austin 1999). Juveniles are not in custody, in the eyes of the Texas courts, when they are told by police that they are not in custody and are free to leave and at the end of the interview they are actually allowed to leave. See In the Matter of V.M.D., 974 S.W.2d 332 (Tex. App.—San Antonio 1998).

(2) Was the Juvenile Being Interrogated?

If a child is in custody at the time a statement is taken, then you must look to see if the statement was the result of interrogation. The United States Supreme Court ruled that interrogation includes any questioning by a police officer and any speech or actions that are reasonably likely to get an incriminating response. See Rhode Island v. Innis, 446 U.S. 291 (1980).

Special Rules for Custodial Interrogation Written Statements

If a child is in custody and interrogated, then special rules must be followed before his written statement will be admissible in court. These rules are laid out in Texas Family Code Section 51.095(a)(1).

  • Before a juvenile in custody is interrogated, he must first be taken to a magistrate. The magistrate must advise the juvenile of his rights without the police officer being present.
  • After being warned of his rights and agreeing to waive them in front of a magistrate, the child can then be questioned by the police officer outside of the magistrate’s presence.
  • He can write a statement if he chooses. Before the juvenile signs his statement, however, he must be taken back in front of the magistrate.
  • Without the police officer being present, the magistrate will review the statement with the child and determine if he understands the statement, voluntarily gave it, and voluntarily and intelligently waived his rights.
  • Once the magistrate makes these determinations, the child can sign his statement in front of the magistrate.

Special Rules for Custodial Interrogation Oral Statements

The rules for making a juvenile’s custodial interrogation oral statement admissible in court are enumerated in Texas Family Code Section 51.095(a)(5).

  • The statement must be recorded by an electronic recording device by an operator who is competent to use the device.
  • All voices on the recording must be identified.
  • The recording device must be capable of making an accurate recording.
  • The recording of the child’s statement must be accurate and unaltered.
  • Before the child gives the statement, the recording must show the magistrate giving the juvenile his warnings and the juvenile must waive each right on the recording.
  • The magistrate may request that the police officer, after the interrogation is finished, bring the child and the recording back to the magistrate so the magistrate can review the recording with the child to ensure the statement was voluntarily given.

Exceptions for Oral Statements

Texas Family Code Section 51.095(a)(2)-(4) lays out the exceptions to the requirements for oral statements made while a juvenile is the subject of custodial interrogation. If any of these exceptions applies, then the special rules for oral statements listed above do not have to be complied with. These exceptions are: statements of fact made by the juvenile which are found to be true and tend to establish his guilt, res gestae statements, and statements made in open court or before a grand jury.

Conclusion

The juvenile system in Texas is intentionally separate and distinct from the adult criminal system in order to prevent treating children as if they are miniature criminals. Likewise, there are special rules that apply in some circumstances when a police officer takes a statement from a juvenile suspect. If a juvenile gives a statement without being the subject of custodial interrogation, then the courts will look at the totality of the circumstances to determine if that statement was given voluntarily. If so, then it will be admissible in court against the juvenile. If, however, the child was in custody and subject to interrogation, then these special rules must be followed in order for the statement to be admissible. These rules involve taking the child before a magistrate to be informed of his rights as opposed to being warned by the police officer. If these rules are violated, then the statement will be deemed to be inadmissible.

Jan 22
Love0

Attenuating of the Taint of Unlawful Police Conduct in Drug Crimes

By Drug Crimes

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances; and
3. The purpose and flagrancy of the official misconduct (in making the arrest).

In May of 2012, in State v Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

The opinion in this case seems a logically disconnected from the ultimate outcome. Apparently, some of the judges agree.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

If you were the subject on an unlawful arrest on a drug crimes case, contact the Fort Worth, Texas drug crimes defense lawyers at Barnett Howard & Williams PLLC today.  (817) 993-9249.

Mar 21
Love0

Fifth Circuit Federal Court Update

By Confession

Below are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

United States v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.

United States v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

United States v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.

May 24
Love4

Custodial Interrogation or Friendly Chat

By Sex Crimes

As I wait on more slip opinions from the Court of Criminal Appeals, I’ve been randomly sifting through Courts of Appeals opinions. Today, the 7th District Court of Appeals (Amarillo) released a rather concise opinion in an aggravated sexual assault case regarding a “custodial interrogation.” It’s worth an equally concise post.

In McGee v. State, appellant complained, inter alia, that his confession should have been suppressed because he was not given Miranda warning prior to issuing his confession to the police. Unconvinced, the Court of Appeals noted that appellant signed a written document containing Miranda warnings before he began speaking with police officers. The Court went on to state that “even if the warnings afforded appellant were somehow deficient, the record contained sufficient factual basis upon which the trial court could have reasonably found that appellant was not in custody at the time.”

Here are the facts to the Court highlighted to demonstrate that appellant was not “in custody” when he gave his confession:

1) Appellant transported himself to the police station to undergo a polygraph examination and questioning;
2) Questioning occurred in a rather large 15’ by 15’ room;
3) He was never told he was under arrest;
4) He was told he was free to go at any time;
5) No one threatened him;
6) No one restrained him;
7) Those asking the questions and administering the polygraph would have stopped if appellant indicated that he wanted to leave;
8) Appellant was at the station for approximately 2.5 hours before confessing;
9) He had no marks on him to indicate that he underwent any kind of physical abuse;
10) He not only was asked if he wanted to take a break or use the bathroom but also was told that he did not have to be there before the examination began;
11) He left that station after the interview; and
12) Nothing indicates that appellant ever attempted to leave, stop the questioning, take a break, or the like.

It seems to me like the Court if stretching a bit with some of those justifications. With an apparent affinity toward list-making, the Court went on to outline scenarios that would lead them to believe a person was in “custody” and therefore the subject of a vlid “custodial interrogation:”

1) If appellant was physically deprived of his freedom in any significant way;
2) If someone told him he could not leave;
3) If the officers created an environment that would lead a reasonable person to believe his freedom of movement was significantly restricted; or
4) If there existed probable cause to arrest appellant and the officers told him he was not free to leave.

The Court explained, “[h]ad any of those four scenarios arose then appellant would have been in custody, but the evidence before us allowed the trial court of legitimately conclude otherwise.”

Seems simple enough. The problem is with the trial court interpretation of those four maxims.