US Supreme Court Archives | Fort Worth Criminal Defense and Personal Injury Attorneys

Packingham Social Media Ban for Sex Offenders

SCOTUS Declares Social Media Ban for Sex Offenders Unconstitutional

By | Sex Crimes

Packingham Social Media Ban for Sex OffendersIn today’s world Internet access has become virtually unlimited. And, with new technology come new problems. These problems have led the Supreme Court to address the challenge modern day Internet access has created for the First Amendment in the landmark case, Packingham v. North Carolina. In Packingham, the Court was asked to determine whether a North Carolina law, which makes it a felony for a registered sex offender to access a social media-networking site, violates the First Amendment’s free speech clause.

North Carolina Imposed a Social Media Ban for all Registered Sex Offenders

In 2002, Lester Packingham, a 21-year-old student, pled guilty for taking indecent liberties with a child after having sex with a 13-year-old girl. As such, Packingham was required to register as a sex offender. However, in 2010 Packingham posted to his personal Facebook account thanking God after he received a dismissal for a traffic ticket. This post was observed by a police officer and Packingham was ultimately convicted for violating the social media ban for sex offenders. After making it all the way to the United States Supreme Court, Packingham’s conviction has now been overturned.

Supreme Court holds that Banning Sex Offenders from Social Media Violates the First Amendment

In overturning Packingham’s case, the Court ruled the North Carolina law to be an impermissible restriction of lawful speech. The Court has consistently held that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” As such, the Court ruled that one of the most fundamental places to exchange views is cyberspace—particularly social media platforms. Social media has evolved and formed a stage for many topics protected by the First Amendment, including human thought. It has evolved so much so that “seven in ten American adults” now use at least one form of social media. Thus, the Court reasoned that while it may have once been difficult to determine which “places” are important for the exchange of ideas, it is now clear.

The Internet allows people access to vast amounts of information, which people need to thrive in modern society. North Carolina prohibited access to this information in an effort to protect children, but they ended up preventing Packingham from gaining access to large amounts of information — information unlikely to further sex crimes. As a result, the Court agreed that sex crimes involving children are repugnant, but it explained that even a valid government interest cannot escape all constitutional protections. The Court further noted that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” Thus, the Court determined that North Carolina did not meet its burden to show why the overly broad law was necessary to serve its purpose of protecting children and subsequently declared the law unconstitutional.

For further analysis, see: Amy Howe, Opinion analysis: Court invalidates ban on social media for sex offenders, SCOTUSblog (Jun. 19, 2017, 1:52 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-invalidates-ban-social-media-sex-offenders/ 

Birchfield v. North Dakota Supreme Court Breath Test

Criminal Penalties for Refusing a Breath Test—Are They Coming to Texas?

By | DWI

Can Texas Charge a Person with a Crime for Refusing a Breath or Blood Test During a DWI Stop?

In Texas, when a person refuses to provide a breath or blood specimen when being arrested for alleged drunk driving offense, their driver’s license is typically suspended. But, can a state have a law that additionally makes it a crime to refuse a breath or blood test? In Birchfield v. North Dakota, the United States Supreme Court held that a state can attach a criminal penalty to those that refuse to submit to a warrantless breath test but they cannot for those that refuse to submit to a warrantless blood test.

In a previous blog post we discussed the oral arguments that took place in this case and briefed the three cases facing the court, Birchfield , Bernard and Beylund.  Birchfield had been criminally prosecuted for refusing a warrantless blood draw; Bernard had been criminally prosecuted for refusing a warrantless breath test; and Beylund, while not criminally prosecuted for refusing a test, submitted to a blood test after the officer told him the law required it. Birchfield v. North Dakota 579 U.S. ____ (2016).

U.S. Supreme Court Issues Opinion in Birchfield Upholding Criminal Penalty for Breath Test Refusal (But Not Blood)

SUPREME COURT DECISION – Birchfield v. North Dakota

First, the Court determined whether warrantless breath and blood tests were proper searches incident to arrest for drunk driving. The Court held that since “breath tests are significantly less intrusive than blood tests” and in most cases adequately serve law enforcement interests, the Fourth Amendment permits a warrantless breath test but not blood test as a search incident to arrest for drunk driving.

Next, the Court addressed the argument that when making the decision to drive on a public road, drivers are deemed to have given consent to submit to a blood test. Applying the Fourth Amendment reasonableness standard, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Birchfield, 579 U.S. ____ (2016).

Finally, the Court applies these legal conclusions to the three cases.  In Birchfield, the Court held that the judgment affirming his conviction must be reversed because the warrantless blood draw was not a justified search incident to arrest and he was thus, threatened with an unlawful search. In Bernard, the Court held that Bernard had no right to refuse the breath test because it was a proper search incident to arrest. In Beylund, the Court vacated the judgment and remanded the case to the state court to reconsider Beylund’s consent given the partial inaccuracy of the officer’s statement that “the law required it.”

In conclusion, the Supreme Court held that States may enact laws that attach criminal penalties to the refusal to submit to a breath test but they may not enact such laws that will apply to refusal to submit a blood test. So what does this mean for Texas? Well, while we do not currently have laws in place that attaches a criminal penalty to refusal of a breathalyzer, the State could enact a law that makes it a crime to refuse to provide a warrantless breath test incident to arrest of drunk driving.

Voisine Reckless Assault Firearm Ban

“Reckless” Domestic Assault Now Qualifies for Federal Firearm Restrictions

By | Domestic Violence

“Firearms and Domestic Strife are a Potentially Deadly Combination,” says the Supreme Court

Voisine Reckless Assault Firearm BanVoisine v. United States (US Supreme Court, 2016)

Voisine v. United States consolidates two domestic violence-related cases from Maine. In both cases, the petitioner-defendants were previously charged with “reckless” misdemeanor assaults, and both were found later to own guns in violation of a federal statute prohibiting gun ownership by those convicted of domestic violence. The Supreme Court weighed the differences between intentional and knowing domestic assaults versus a reckless “heat of passion” type assault to reach it’s conclusion.

Voisine’s Domestic Violence Case

In 2004, Stephen Voisine was charged with and convicted of a domestic violence assault of his girlfriend, in violation of §207 of the Maine Criminal Code, which penalizes “intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann. Tit. 17-A, §207(1)(A). A few years later, Voisine killed a bald eagle—a federal offense. During the investigation of the bald eagle crime, investigators discovered Voisine owned a rifle. Background checks reflected his prior domestic violence conviction, so prosecutors charged him with violating 18 U.S.C. §922(g)(9).

Armstrong’s Domestic Violence Case

In 2008, William Armstrong pleaded guilty to a domestic violence assault of his wife, in violation of the Maine Criminal Code. A few years later, law enforcement was investigating a narcotics ring, and discovered six guns and ammunition on Armstrong’s property. Like Voisine, Armstrong was charged with violating 18 U.S.C. §922(g)(9), unlawfully possessing firearms.

The Big Issue before the Supreme Court – Is there a difference between “Reckless” domestic violence and “Intentional” domestic violence for 922(g)(9)?

Both Voisine and Armstrong appealed their respective cases to the First Circuit, arguing that they were “not subject to the federal firearm prohibition described in §922(g)(9) because their prior convictions could have been based on reckless, rather than knowing and intentional, conduct.” United States v. Armstrong, 706 F.3d 1, 4 (2013); United States v. Voisine, 495 Fed. Appx. 101, 102 (2013) (per curiam).

After several appeals in Maine, both Voisine and Armstrong filed a petition to the Supreme Court. The Supreme Court granted the petition for review, specifically to resolve a circuit split over the issue at hand.

The Supreme Court must determine whether misdemeanor assault convictions for reckless domestic assaults invoke the federal firearms ban. What difference, if any, is there between intentional and knowing assaults versus a reckless assault? Does the type of assault even matter?

What is the current law regarding Federal firearm restrictions after a conviction for a domestic violence incident?

Under Federal law, any person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm. 18 U.S.C. §922(g)(9). This includes any misdemeanor that involves the “use of physical force.” §921(a)(33)(A).

The Supreme Court Weighs In

In the opinion released Tuesday, the Supreme Court discusses the mens rea (state of mind) for a reckless domestic violence assault, which a is “conscious disregard of a substantial risk that the conduct will cause harm to another.” ALI, Model Penal Code §2.02(2)(c) (1962). Reckless conduct, the Court says, is not an accident. Reckless conduct involves a deliberate decision to endanger others. Reckless conduct involves making a decision—it is a purposeful act.

Here, the Supreme Court holds that yes, misdemeanor assault convictions for reckless domestic assaults do trigger the federal firearms ban, for two main reasons.

I. It’s Common Sense–Plain Language Read of the Statute Renders this Result

Both Voisine and Armstrong took issue with the phrase “use of force”—namely the word “use.” However, “nothing in the word “use” indicated that the federal firearm ban applies exclusively to misdemeanor assaults that are knowingly or intentionally committed,” says the Supreme Court. Further, “dictionaries consistently define the noun “use” to mean the act of employing something.” Webster’s New Int’l. Dictionary 2806 (2d ed. 1954); Random House Dictionary of the English Lang. 2097 (2d ed. 1987); Black’s Law Dictionary 1541 (6th ed. 1990). “On that common understanding, the force used [in an assault] must be volitional.” In sum, a person who “assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally.”

II. Congress Intended to Include All Types of Misdemeanor Domestic Assaults in §922(g)(1).

The federal firearm ban for those convicted of misdemeanor domestic assaults was enacted by Congress in the late 90s to “close a dangerous loophole in gun control laws.” United States v. Castleman, 572 U.S. __, __ (2014)(slip op., at 2)(quoting United States v. Hayes, 555 U.S. 415, 426 (2009)). At the time, a law prohibiting those with felony domestic violence convictions was already on the books. §922(g)(1)(1994 ed.).

Unfortunately, says the Court, many domestic violence assaults are prosecuted as misdemeanor crimes or have a statutory penalty that results in misdemeanor convictions, “notwithstanding the harmfulness of their conduct.” Castleman, 572 U.S. at __(slip op. at 2). Using the Commerce Clause of the US Constitution as a hook for the law, Congress added the federal firearm ban for any person “convicted of a misdemeanor crime of domestic violence…from possessing any gun or ammunition with a connection to interstate commerce.”

Further, Congress defined “misdemeanor crime” as any misdemeanor under federal, state, or tribal law, committed by a person with a…domestic relationship with the victim that has…physical force.” In sum, the “statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence” under federal statutes.

Dissenters in the Crowd

Supreme Court Justices Thomas and Sotomayor disagreed with the majority. Both Justices aver that mere recklessness should not invoke a firearm ban because “recklessness does not necessarily involve the use of physical force.” [The Supreme Court] has routinely defined “use” in a way that makes clear the conduct must be intentional. Bailey v. United States, 516 U.S. 137 (1995). “The use of physical force against a family member refers to intentional acts of violence against a family member.”

Utah v. Strieff Illegal Police Conduct

US Supreme Court Allows Evidence From Illegal Police Stop in a Shocking Decision

By | Search & Seizure

In a 5-3 Split, Utah v. Strieff Causes Strife for the Supreme Court: What Happens When an Illegal Stop Leads to the Discovery of an Outstanding Warrant?

Utah v. Strieff Illegal Police ConductUtah v. Strieff (United States Supreme Court – 2016)

The Supreme Court has had a busy term already! Handed down just yesterday, Utah v. Strieff divided the Supreme Court over the question of what happens when an illegal stop leads to the discovery of an outstanding warrant? And when that warrant is executed, what happens when drug paraphernalia is found incident to arrest? Should evidence obtained at a search incident to arrest be suppressed when the stop was unlawful from the start?

Surveillance of a Suspected Drug House Leads to an Arrest for a Traffic Violation

In Strieff, law enforcement conducted surveillance of a Salt Lake City, Utah, residence, after an anonymous tipster called a drug hotline to report to police that drugs were being sold in the home. During the surveillance, police observed a large number of people visiting the home for mere minutes at a time and leaving, increasing law enforcement’s suspicion that the residents were dealing drugs. Shortly after Edward Strieff visited the home, law enforcement stopped and detained Strieff, asking him the reason for visiting the home. Next, police ran Strieff’s identification information through their electronic records, discovering an outstanding arrest warrant on Strieff for a traffic violation. Strieff was arrested and searched. During the search, police found a baggie of meth and other drug paraphernalia in Strieff’s pockets. Strieff was charged with unlawful possession of methamphetamine and drug paraphernalia.

Strieff Moves to Suppress the Evidence as the Fruits of an Illegal Police Stop.

At trial, Strieff moved to suppress the evidence as a result of an unlawful investigatory stop. Strieff argued that because law enforcement’s stop was illegal from the beginning, then any evidence found on him as a result of the stop was “tainted.” The State argued that the evidence was in fact admissible because it was found as a result from a search incident to a lawful arrest with a warrant, and that the warrant itself attenuated the connection between the unlawful stop and the discovery of the drugs and drug paraphernalia. Agreeing with the State, and finding the presence of the arrest warrant to be an “extraordinary intervening circumstance” the trial court denied Strieff’s motion to suppress. United States v. Simpson, 439 F.3d 490, 496 (CA8 2006). Strieff pleaded guilty to a lesser charge, but preserved his right to appeal.

Utah Supreme Court Holds that Illegal Police Conduct Was Not Attenuated.

On appeal, Strieff argued that the evidence should have been suppressed at trial. However, the Utah Court of Appeals affirmed the trial court’s ruling. 2012 UT App. 245, 286 P. 3d 317. On appeal to the Utah Supreme Court, Strieff argued that the evidence should have been suppressed at trial and that the court of appeals was incorrect in their verdict. The Utah Supreme Court agreed with Strieff, and reversed the lower courts’ rulings, ordering the evidence to be suppressed. 2015 UT 2, 357 P. 3d 532. In declining to apply the attenuation doctrine, the Utah Supreme court held, “the evidence is inadmissible because only a voluntary act of a defendant’s free will sufficiently breaks the connections between an illegal search and the discovery of evidence.Id. at 536.

The State of Utah appealed to the United States Supreme Court. Strieff contends that the facts of his case show that he was stopped illegally for the purpose of obtaining his identifying information, and that because of flagrant police misconduct, he was detained and searched unlawfully.

US Supreme Court Must Determine Whether Illegal Police Conduct Must Result in Exclusion of the Tainted Evidence.

When a police officer lawfully stops a person and asks for identification, then, discovers that there is a traffic warrant for this person’s arrest, and in the process of arresting and searching him discovers drugs and drug paraphernalia, the evidence found in the search of a person can be used against him.

However, what if the initial stop was not lawful. Doctrinally, does the “attenuation doctrine”—an exception to the exclusionary rule of the Fourth Amendment—apply when law enforcement makes an unconstitutional investigatory stop, discovering during that stop that the suspect is subject to a valid arrest warrant, and then, arrests the suspect, seizing incriminating evidence during a search incident to arrest?

The Law of the Land: The Fourth Amendment

The Fourth Amendment to the United States Constitution provides, “ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. To enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures, “[the Supreme] Court has required…courts to exclude evidence obtained by unconstitutional police conduct” via the exclusionary rule. Utah v. Strieff, 579 U.S. ___(2016).

The Exclusionary Rule to the Fourth Amendment

The Exclusionary Rule to the Fourth Amendment is a legal principal, put forth by the Supreme Court in precedent case law, protecting defendants in criminal cases where evidence is collected in violation of a person’s constitutional rights, by deeming the evidence inadmissible for criminal prosecution. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Exclusionary Rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure [and] evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U.S. 796, 804 (1984). However, courts will only apply the exclusionary rule, “where the deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006).

The Exception to the Exclusionary Rule: Attenuation Doctrine (and Brown Factors)

Over the years, the Supreme Court has recognized several exceptions to the Exclusionary Rule, one of which is called the “Attenuation Doctrine.” The Attenuation Doctrine provides for admissibility when the connection between unconstitutional police conduct and evidence is sufficiently remote or has been interrupted by some intervening circumstances. Id. at 593. The doctrine “evaluates the causal link between the government’s unlawful act and the discovery of evidence.” Strieff, 579 U.S. ___ (2016).

The factors, articulated in Brown v. Illinois, 422 U.S. 590 (1975) (the “Brown factors”), are used by courts in legal analyses to determine whether the Attenuation Doctrine is applicable to the facts of a case. The three factors are temporal proximity, intervening circumstances, and flagrant police misconduct.

  1. Temporal proximity—For example, how much time did it take for police to stop the suspect and to arrest him, and under what circumstances?
  2. Intervening circumstances—For example, did the suspect make a confession, or volunteer some other information to law enforcement to indicate that he has committed a crime?
  3. Flagrant police misconduct—For example, did police act in an unethical manner to discover evidence, or, is there a pattern of misconduct for that officer or police department as a whole?

The Supreme Court Holds That The Valid Arrest Warrant Attenuated the Taint of the Illegal Stop.

In a 5-3 split, the Supreme Court reverses the Utah Supreme Court’s ruling, holding that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest. Essentially, the arrest warrant was, in and of itself, the attenuation or the reason that the evidence seized is admissible. “The evidence [law enforcement] seized incident to Strieff’s arrest is admissible based on an application of attenuation factors from Brown v. Illinois, 422 U.S. 590.”

First, the “temporal proximity” factor “favors suppressing the evidence,” the Supreme Court states, as the stop was initially unlawful and because law enforcement discovered the drug paraphernalia on Strieff mere minutes after he an illegal stop. However, the other two factors strongly favor the State.

Second, the “intervening circumstances” factor is met under the facts of the case. “The existence of a valid arrest warrant, predating the investigation and entirely unconnected with the stop, favors…attenuation between the unlawful conduct and the discovery of evidence.” Further, the warrant itself authorized law enforcement to arrest Strieff—once the arrest was authorized by a magistrate’s signature on a warrant, a search incident to an arrest is “undisputedly lawful.”

Third, the “flagrant police misconduct” factor strongly “favors the state” as law enforcement was “at most negligent…but [these] errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.” In this case, there was no indication that the stop was part of any systemic police misconduct. Police misconduct and flagrancy requires more than “mere absence of proper cause.”

Additionally, the Supreme Court says that Strieff’s arguments are not persuasive. Law enforcement did not stop Strieff randomly. Strieff had visited a suspicious house that was under surveillance. Law enforcement’s purpose in surveilling the residence was to “gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs.” Further, it is “unlikely that the prevalence of outstanding warrants will create dragnet searches,” says the Supreme Court.

Three Supreme Court Justices Dissent and Would Hold That the Illegal Stop Requires Exclusion of the Seized Evidence.

There were three dissenters who put forth two written dissents to the holding in this case. In the first dissent, Justices Sotomayor and Ginsburg (in part) state that, “the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.” Further the Justices add, “If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” “Two wrongs don’t make a right” they implore, “as it is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian.” The holding in this case, they say, undermines the heart of the constitutional protections, “the Fourth Amendment should prohibit, not permit.”

Additionally, Justices Kagan and Ginsburg dissented together. The Justices argue that the majority misapplied the Brown factors altogether, and that an outstanding warrant in and of itself does not an intervening circumstance make. Further, they argue that the outcome of this case invites law enforcement to stop citizens, even without reasonable suspicion. “If the target[ed] [citizen] is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in criminal prosecution,” the Justices argue. Thus, law enforcement’s incentive to violate the Fourth Amendment increases, which is in opposition to the purpose of the Exclusionary Rule altogether—to remove potential temptation from police to stop random individuals without reasonable suspicion.


This is a very troubling decision. While we never hope that our police officers would engage in illegal conduct to stop folks that have not committed a violation, it is never good to allow a 4th Amendment violation to be trumped by the later discovery of a traffic warrant. If we subscribe to an “ends justify the means” mentality, all of our constitutional rights are in serious jeopardy. It will be interesting to see how this decision plays out in real life, but I predict that it will not be good in the short term.

Birchfield v. North Dakota Supreme Court Breath Test

Should Drivers Face Criminal Charges for Refusing a Breathalyzer Test?

By | DWI

SCOTUS Hears Oral Argument in Birchfield v. North Dakota

Birchfield v. North Dakota Supreme Court Breath TestOn April 20, 2016, the Supreme Court of the United States (“SCOTUS”) heard oral arguments in Birchfield v. North Dakota, a case that consolidates Birchfield with Bernard v. Minnesota and Beylund v. Levi, where the SCOTUS will determine whether the government may, without a warrant, make it a crime for a motorist to refuse to take a blood-alcohol test. Currently, thirteen states make it a crime to refuse any form of drunk-driving tests (breathalyzer, field sobriety, etc.). Birchfield comes on the heels of the 2013 Missouri v. McNeely case, where the SCOTUS held that if police have time, they should get a warrant before taking an invasive test of a suspected drunk driver. Let’s take a look at each consolidated case to understand the big issue before the Supreme Court.

Case #1: Birchfield v. North Dakota

In Birchfield, motorist Danny Birchfield drove his car off of a North Dakota road and subsequently failed a field sobriety test and a preliminary breath test, given by the state highway patrol. At that point Birchfield was arrested, told he had to take another more invasive chemical test, and informed of North Dakota’s implied consent rule. In North Dakota, any individual who operates a motor vehicle on any public or private road in the state is deemed to have consented to a chemical test for alcohol in the blood stream. Birchfield refused to submit to any further testing and was charged with both DUI and Failure to Submit to chemical testing. Birchfield filed several appeals, arguing that North Dakota’s implied consent law is unconstitutional under the 4th Amendment of the United States Constitution. Birchfield is opposed to “refusal” being a crime all by itself.

Read the brief in Birchfield here.

Case #2: Bernard v. Minnesota

In Bernard, police confronted a man who smelled of alcohol on a public boat ramp and asked him to consent to field sobriety tests. Bernard consented to a breathalyzer test after being told of the criminal penalties for refusal. Under Minnesota’s implied consent law, it is a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a chemical test. Minnesota argues that a warrantless breath search is constitutional under the “search incident to an arrest” doctrine. On the other hand, Bernard argues that a breathalyzer is not a valid search incident to an arrest because the search does nothing to further officer safety or to preserve evidence.

Read the brief in Bernard here.

Case #3: Beylund v. Levi

In Beylund, law enforcement observed a car driving erratically and stopping in the middle of the road. The police asked defendant Beylund to consent to chemical testing. At trial, Beylund argued that the test imposed an unconstitutional condition on his driver’s license.

Read the brief in Beylund here.

The Big Issues—Implied Consent or Criminalization of a Constitutional Right?

The highest court will determine whether in the absence of a warrant, a state can make it a crime, in and of itself, for a person to refuse to take a chemical test (blood, breath and urine) to detect the presence of alcohol in the blood? The Supreme Court will likely be examining the following questions to determine the answer to that question:

  • When drivers obtain a driver’s license from a state agency, does a driver impliedly consent to invasive chemical testing to detect the presence of alcohol?
  • Is refusing an invasive chemical test criminal in and of itself?
  • Do citizens have the constitutional right to refuse an invasive chemical test without penalty?
  • Do states have a compelling interest in protecting public roadways from drunk driving so that they may order chemical testing for suspected drunk drivers even without a warrant?
  • Can a government benefit (such as driving on public roadways) be conditioned upon search requirements, even if the search is an invasive chemical test?

Precedent Case: Missouri v. McNeely

Driving While Intoxicated and invasive chemical testing are not new topics to the SCOTUS. In 2013, the Court heard Missouri v. McNeely. Defendant McNeely had been arrested for DUI after failing field sobriety tests. He refused to take a breathalyzer, so law enforcement transported him to a hospital where his blood was removed against his will. After several appeals and suppression hearings, McNeely was heard by the SCOTUS. Chief Justice Sonia Sotomayor reiterated that a blood draw “is an invasion of bodily integrity that implicates the most personal and deep-rooted expectations of privacy.” Although the SCOTUS noted that from time to time cases may arise that will allow for a warrantless blood alcohol test, the Court ultimately held, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

What Will the Supreme Court Say About Warrantless Breath Tests?

Several national organizations, such a Mothers Against Drunk Driving (see the MADD brief here) and the American Civil Liberties Union (read the ACLU brief here), have filed amicus “friends of the court” briefs for this case arguing for and against the constitutionally of implied consent laws. In the past decade, 112,998 people have been killed in alcohol-impaired driving crashes. With grim statistics underpinning many of the individual states’ implied consent laws, will the Supreme Court overturn or add to McNeely? It will be very interesting to see how the SCOTUS squares this case with the precedent case law and which legal theory they will select to reach a conclusion.

Frozen Assets Attorneys Fees

Supreme Court Rules Feds Cannot Seize Untainted Assets Needed for Attorney Fees

By | Asset Forfeiture

In Luis v. United States, the Supreme Court Addressed Whether and to What Extent, Federal Authorities Can Seize Assets Unrelated to Criminal Activity.

Frozen Assets Attorneys FeesMany federal defendants have been in the position of needing to hire an attorney but having all of their assets frozen.  Not anymore.  The United States Supreme Court ruled this week that the federal government cannot, before trial, seize the assets of the defendant if those assets are unrelated to the criminal allegation and are needed to fund a defense attorney.

See Luis v United States (US S.Ct. 2016)

Luis v. United States – Case Background

In Luis, a Miami woman named Sila Luis was accused of Medicare and banking fraud. The criminal charges alleged that she illegally used kickbacks and other criminal schemes to fraudulently obtain over $45 million. Luis only had $2 million left when federal prosecutors obtained a court order seizing all of her assets — both those assets related to the crime and those unrelated to it. She challenged the federal seizure order arguing that she needed the unrelated (untainted) assets in order to retain an attorney for her trial.

A majority of Supreme Court justices agreed with Luis. that allowing the government to take her untainted assets would violate her Sixth Amendment right to counsel of her choice.

When Can the Federal Government Seize a Defendant’s Assets?

18 U.S. Code Section 1345(a)(2) provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3), as relevant here, other “property of equivalent value.”

Writing for four of the justices, Justice Stephen Breyer explained that the frozen assets

belongs to the defendant, pure and simple.” He added that, as a practical matter, to accept the government’s position could have grave consequences for a defendant who is actually innocent, whose assets are all untainted and, if seized, would leave the defendant without her lawyer of choice to defend against meritless charges.

He went on, “[t]o permit the Government to freeze Luis’ untainted assets” in this case, Breyer wrote, “would unleash a principle of constitutional law that would have no obvious stopping place.”

Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor joined the Justice Breyer’s opinion. Justice Thomas wrote separately, with a slightly different analysis, explaining that the 6th Amendment right to counsel of choice would be meaningless if we did not allow a defendant to use his or her property to pay for that attorney.

Justices Kennedy and Alito dissented and would hold that there is no real way to distinguish between tainted and untainted assets since money is fungible.

TAKEAWAY: The government may not seize assets in a federal case if the assets are not connected to the alleged criminal activity and if those assets are needed to hire an attorney for the defense.

Fort Worth Criminal Defense Child Victim

US Supreme Court Rules Child’s Statements to Teacher Non-Testimonial

By | Confrontation Clause

Statements by Child Victim to Teacher Were Admissible “Non-Testimonial” Under the Supreme Court’s Confrontation Clause Jurisprudence.

Fort Worth Criminal Defense Child VictimThe Sixth Amendment’s Confrontation Clause protects a defendant’s right to confront witnesses against him and raises the issue of how-to-treat admissibility of out-of-court statements.  In a landmark 1980 case, the Supreme Court adopted a standard allowing out-of-court statements to be admitted if they are deemed reliable and trustworthy.

In 2004, the Court adopted what this Court called a “different approach,” adopting the position that testimonial statements–out-of-court statements as a substitute for in-court testimony–are inadmissible unless the witness is unavailable to testify in court and the defense had an earlier opportunity for cross-examination.

In 2006, the Court adopted the “primary purpose” test, under which statements made during the course of police interrogation for the primary purpose of meeting an ongoing emergency are not testimonial and are therefore admissible. Only statements made in the course of an investigation for the primary purpose of proving facts relevant to later prosecution are potentially inadmissible.

In 2011, the Court expanded the primary purpose test by requiring the determination of whether a statement is testimonial to consider all the relevant circumstances. Specifically, the Court said statements made to police officers in an informal setting are less likely to be testimonial than a police station interrogation.

All of the cases up to this point had one fact in common–the statements were made to law enforcement officers. The Court had declined to decide the issue of whether the same rules would apply to statements made to individuals other than police officers.

Breaking Confrontation Clause Caselaw | Fort Worth Criminal Defense Attorneys

In Ohio v. Clark, the Court finally had the opportunity to address the question regarding statements made to individuals other than police officers. In Clark’s child abuse trial, statements made by the three-year-old victim to his teachers that Clark had caused his injuries were admitted into evidence. The three-year-old did not testify because of an Ohio law that generally determined children younger than ten years of age incompetent to testify.

The trial court ruled the child’s statements were not testimonial and allowed them to be admitted. Clark was convicted and sentenced to 28 years imprisonment.

A state appellate court reversed the decision. The Ohio Supreme Court upheld the decision of the Appeals Court, concluding the primary purpose of the teachers’ questioning was gathering evidence, not addressing an ongoing emergency. The court considered the teachers agents of the state under the state’s mandatory reporting law and found the child’s statements functionally equivalent to live in-court testimony that was inadmissible.

The United State Supreme Court disagreed and decided the child’s statements were made in the context of an ongoing emergency regarding suspected child abuse. The teachers needed to know who might have abused the child so they would know whether it was safe to release the child to his guardian and to help prevent future attacks. During the spontaneous and informal questioning, the teachers never told the child his statements might be used to punish Clark. The Court found it unlikely the child intended his statements to be a substitute for trial testimony.

The Court declined to adopt a categorical rule that all statements to persons other than law enforcement officers are testimonial, but considered the identity of the questioners in this case and concluded that statements made to individuals not principally charged with uncovering and prosecuting criminal behavior, such as teachers, are less likely to be testimonial.

The Court rejected the argument that the mandatory reporting law transformed teachers into agents of the state, concluding the teachers would have taken steps to protect the child even in the absence of the law. The Court also rejected Clark’s claim that the child’s statements should have been inadmissible because the jury perceived them to be testimonial, noting that theory would render almost all out-of-court statements offered by the prosecution inadmissible.

The Court concluded that because the child’s statements were not made for the primary purpose of creating an out-of-court substitute for trial testimony, they were not testimonial and were therefore admissible.

Although the ruling in the case was unanimous, in an unlikely pairing, Justices Scalia and Ginsburg argued the 2004 decision regarding testimonial statements was adequate to decide this case. They argued the majority’s characterization of the 2006 and 2011 cases as different approaches or alternative tests was an attempt to return to the 1980 standard of reliability when the only issue is whether the statement is made by a witness and is unconfronted.

Justice Thomas argued the Court should in fact return to the 1980 standard of trustworthiness and reliability and apply the same standard to statements made to private individuals and those made to police officers. Thomas characterized the primary purpose test as an “exercise in fiction” and concluded in this case, the child’s statements did not meet the standards of reliability and trustworthiness to fall under the prohibition of the Confrontation Clause

Fort Worth Terrorist Threat Defense Attorneys

Are “Facebook Threats” Actually Threats Under Federal Law?

By | Threats

Fort Worth Terrorist Threat Defense AttorneysEveryone seems to use social media today. Videos of kittens and puppies and comments about people or events are common. However, some use of social media involves threats by a user against others. The U.S. Supreme Court recently considered a case regarding how far such threats can go without violating the law.

Anthony Elonis was a Facebook user. When his wife left him, Elonis began posting violent, self-composed “rap” lyrics. Elonis’s posts included references to co-workers, his wife, law enforcement, an unidentified kindergarten class and an FBI agent who visited his home. Based on these Facebook posts, the Government charged Elonis with violating a federal statute, referred to as 875(c), that criminalizes communication that contains a threat to harm another person.

Elonis’s defense attorney moved to dismiss the charges because Elonis had not actually intended to threaten anyone. The court denied the motion, holding that the Government was not required to prove that Elonis actually intended to make a threat; it must only prove that Elonis intended to make the communication. At trial, the Government called several witnesses who testified they viewed the posts as serious threats.

Elonis argued for a jury instruction requiring the Government to prove Elonis “intended to communicate a threat.” Instead, the judge instructed the jury that a true threat requires only that the defendant make a statement that a reasonable person would interpret as a serious expression of intent to harm or kill an individual.

Elonis was convicted on four counts. He appealed to the Third Circuit Court of Appeals, which affirmed the lower court’s verdict. Elonis then appealed to the Supreme Court.

No one disputed Elonis had posted the Facebook entries. The issue was whether Elonis’s posts contained any threats.

The language of 875(c) contains no provision regarding intent or state of mind. Elonis argued that every definition of threat requires an intent to harm. The Government argued that the use of “intent” language in sections surrounding 875(c) demonstrated that Congress did not intend to impose an intent standard in 875(c).

The Court rejected both arguments, concluding that 875(c) did not address the issue of “intent” or “mental state” at all. The Court looked elsewhere for an answer and found one in decisions in previous cases: Only conscious wrongdoing can be prosecuted as a crime. When a statute includes no provision regarding the required mental state, the Court said it implies only the state of mind which is required to distinguish wrongful conduct from conduct that would otherwise be innocent. For example, if an individual robs a bank, even under a good-faith belief the money was his, the “forceful taking” (stealing) does not constitute “otherwise innocent conduct.” The Court said the Government’s position in this case would punish a defendant who takes money without force, believing it to be his.

The court characterized the Government’s position as a standard of negligence, which asks what a reasonable person would do in the situation. The Court said a negligence standard had been rejected in criminal statutes, stating “what [Elonis] thinks does matter.” On that basis, the Court overturned Elonis’s conviction.

In a separate opinion, Justices Alito and Thomas took issue with the Court holding that a negligence standard was insufficient while not determining what standard would be sufficient. Judge Alito argued for a recklessness standard (acting in conscious disregard of the risk). Justice Thomas chastised the majority for rejecting the opinion of nine out of eleven Circuit Courts of Appeals and leaving nothing in its place. Justice Thomas did commend the majority for not imposing an intent-to-threaten requirement but believed the Court should have gone further and adopted the negligence or general intent standard put forward by the Government.

Elonis v. U.S. raises more questions than it answers. Clearly, something more than making a threatening statement with knowledge of what it says is required to violate federal law. But how much more? Was Justice Alito correct that making the statement with no consideration of its effect on the recipient is enough? Or was Elonis right that an individual must affirmatively intend the communication as a threat for it to be illegal? Setting aside moral or ethical concerns, until this question is answered, social media users should be cautious of making statements threatening other individuals, serious or not.

Fort Worth Double Jeopardy DWI

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

By | Double Jeopardy

Fort Worth Double Jeopardy DWIUnited States Supreme Court case highlight: Blueford v. Arkansas

The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

Fort Worth Criminal Defense Child Victim

Search & Seizure: Officer’s Mistake of Law

By | Search & Seizure

United States Supreme Court | Search and Seizure Update

Fort Worth Criminal Defense Child VictimWe 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 4th 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.