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Warrantless Search Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Apr 08
3
Bitcoin Privacy 4th Amendment

Are Bitcoin Transactions Private Under the Law?

By | Warrantless Search

Do You Have a Fourth Amendment Privacy Interest in Your Bitcoin Transactions?

Bitcoin Privacy 4th AmendmentNo, the Fifth Circuit Court of Appeals recently held that people do not have a reasonable expectation of privacy in the information (1) contained on the Bitcoin blockchain and (2) that you provide to cryptocurrency exchanges.1 The Court reached this decision through an analysis of the facts under the “third party doctrine” of Fourth Amendment jurisprudence. This doctrine is explained in further detail below.

Read full case HERE. US v. Gratkowski, 964 F.3d 307 (5th Cir. 2020).

First Off, what is Bitcoin?

Bitcoin is a “collection of concepts and technologies that form the basis of a digital money ecosystem.”2 More colloquially, the word “bitcoin” refers to a bitcoin—a unit of digital currency used to store and transmit value among participants in the bitcoin network. Bitcoin derives its value not from physical characteristics like gold or trust in a central authority like fiat money. Instead, bitcoin is backed by the cryptographic technology behind it.

Bitcoin is powered by open-source code known as blockchain, which creates a shared public ledger that is viewable by anyone. Each transaction is a “block” that is “chained” to the code, creating a permanent record of each transaction. In order to transfer anything in this world, you need to be able to send and receive your items to and from a certain location. Bitcoin is no different. Like an email, Bitcoin is transferred between locations on the internet called Bitcoin addresses. A Bitcoin address indicates the source or destination of a Bitcoin payment. The Bitcoin blockchain contains only the sender’s address, the receiver’s address, and the amount of bitcoin transferred. Bitcoin wallets provide these addresses and utilize software that allows you to securely send, receive, and store bitcoin in the bitcoin network.

The central tenet behind the creation of Bitcoin was that willing parties should be able to transact directly with each other without the need for a trusted third party.3 A large part of the value in that kind of decentralization is in the privacy that it assumes will accompany the transaction. However, as the use and influence of cryptocurrencies expands, so too does the need of law enforcement to crack down on the illicit activities of crypto users that our society finds to be reprehensible. Analyzing the block chain for evidence of crimes involving bitcoin inevitably means that information of bitcoin transactions will be collected. This kind of forensic analysis, aside from collecting information on whether the bitcoin was used for something illegal, “can include the collection of large amounts of personal information about a user’s spending habits [and] total holdings[.]”4 The natural question for criminal law attorneys is whether a bitcoin user has a Fourth Amendment privacy interest in the information related to their bitcoin transactions.

Bitcoin Transactions and the 4th Amendment

The Fifth Circuit Court of Appeals in United States v. Gratkowski recently held that individuals do not have a Fourth Amendment privacy interest the information related to their bitcoin transactions.5 More specifically, the court found that there is no Fourth Amendment privacy interest in: (1) information on the bitcoin blockchain itself, and (2) bitcoin transactions in virtual currency exchanges.6

Gratkowski became the subject of a federal investigation when federal agents began investigating a child-pornography website. Users like Gratkowski paid the website bitcoin in exchange for downloadable child pornography. As mentioned above, the bitcoin blockchain only contains the sender’s address, the receiver’s address, and the amount of bitcoin transferred between the two parties. The identity of the owners do not appear on the bitcoin blockchain, but it is possible to discover the owner of a bitcoin address by analyzing the blockchain:

“For example, when an organization creates multiple Bitcoin addresses, it will often combine its Bitcoin addresses into a separate, central Bitcoin address (i.e., a “cluster”). It is possible to identify a “cluster” of Bitcoin addresses held by one organization by analyzing the Bitcoin blockchain’s transaction history. Open source tools and private software products can be used to analyze a transaction.”7

Federal agents used an outside service to analyze the publicly viewable bitcoin blockchain and identify a cluster of bitcoin addresses controlled by the website.8 They then served a grand jury subpoena on Coinbase (a prominent cryptocurrency exchange) for all information the exchange had on the Coinbase customers whose accounts sent Bitcoin to any of the addresses in the child-pornography website’s cluster. Coinbase turned over Gratkowski’s information, and federal agents obtained a warrant to search Gratkowski’s house. The agents found a hard drive containing child pornography and subsequently charged Gratkowski with one count of receiving child pornography and one count of accessing websites with intent to view child pornography.

At trial, Gratkowski moved to suppress the evidence the government obtained under the warrant, arguing that both the subpoena to Coinbase and the analysis done on the blockchain violated the Fourth Amendment. For the government to infringe upon an individual’s Fourth Amendment protection against unreasonable searches, the person must have a “reasonable expectation of privacy” in the items obtained.9 The “third-party doctrine” instructs that a person generally “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”10

For instance, the Supreme Court in United States v. Miller held that bank records were not subject to Fourth Amendment Protections.11 The Court also held that telephone call logs were not subject to Fourth Amendment protections because the telephone numbers we dial are voluntarily conveyed to the phone company when we place a call.12 However, the Supreme Court recently held that individuals do have a privacy interest in their cell phone location records, despite the records being held by a third party.13 In deciding this, the Court set-up the current framework under which courts are to determine whether the third-party doctrine applies to certain information that is shared with third parties: The sole act of sharing the information is no longer determinative as to whether we have a Fourth Amendment privacy interest in it. Rather, courts are to consider, “‘(1) the nature of the particular documents sought,’ which includes whether the sought information was limited and meant to be confidential, and (2) the voluntariness of the exposure.”14

The Fifth Circuit reasoned that the information on the Bitcoin blockchain is more similar to bank records and telephone call logs than to cell phone location records.15 The court held that the information contained on the Bitcoin blockchain (the amount of Bitcoin transferred and the Bitcoin addresses of the sender and receiver) is limited, and Bitcoin users are unlikely to expect that information to be kept private as it is well known that it is recorded on the publicly available blockchain.16 The court also reasoned that the public exposure of this information is voluntary because transferring and receiving Bitcoin requires an affirmative act by the Bitcoin address holder.17 The Fifth Circuit therefore held that there is no reasonable expectation of privacy in the information contained on the Bitcoin blockchain.18

The Court used similar reasoning regarding the question of privacy in the Bitcoin transactions on Coinbase. Coinbase is a financial institution like a bank. Both are subject to the Bank Secrecy Act as regulated financial institutions, and both keep records of customer identities and currency transactions. The Court held that, “[h]aving access to Coinbase records does not provide agents with ‘an intimate window into a person’s life’; it provides only information about a person’s virtual currency transactions.”19 The court also held that, “[s]econd, transacting Bitcoin through Coinbase or other virtual currency exchange institutions requires an ‘affirmative act on the part of the user[,]’ which speaks to the voluntariness with which the information was turned over to Coinbase.20

Conclusion

The Gratkowski decision makes it difficult to imagine any situation in which a court would find there to be a Fourth Amendment privacy interest in information on the Bitcoin blockchain itself. Although Bitcoin users may truly value and believe in the privacy considerations contained in the monetary philosophy of Bitcoin, there is no getting around the fact that a “block” on the blockchain requires two Bitcoin addresses and the amount of bitcoin exchanged. And as long as private blockchain analytics companies continue to analyze only that information in determining the identity of Bitcoin users, courts will likely continue to find there to be no Fourth Amendment privacy interest in that information.

There appears to be more room to work with when it comes to cryptocurrency exchanges. Perhaps a court could find there to be a privacy interest in information given to an exchange whose business centers around user confidentiality. However, exchanges must comply with the same federal financial laws that govern Coinbase, and the record-keeping requirements under those laws would likely provide for a strong analogy to the Gratkowski case.

ENDNOTES:

1. United States v. Gratkowski, 964 F.3d 307 (5th Cir. 2020).
2. A. M. Antonopoulos, Mastering bitcoin: Programming the open blockchain (2nd ed.). Beijing etc.: O’Reilly.
3. Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, https://bitcoin.org/bitcoin.pdf (2008).
4. Sasha Hodder & Rafael Yakobi, Bitcoin Fungibility, Mixing and the Legal Limits on Maintaining Privacy, https://bitcoinmagazine.com/culture/bitcoin-fungibility-mixing-and-the-legal-limits-on-maintaining-privacy (2020).
5. Gratkowski, 964 F.3d 307 (5th Cir. 2020).
6. Id.
7. Id. at 309.
8. Private blockchain analytics companies also provide services of this nature to cryptocurrency exchanges to help the exchanges meet their obligations under federal money laundering laws. See footnote 4 on the previous page for a discussion of privacy and these laws.
9. United States v. Jones, 565 U.S. 400, 406 (2012).
10. Smith v. Maryland, 442 U.S. 735, 743–44 (1979).
11. United States v. Miller, 425 U.S. 435, 439-40 (1976).
12. Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
13. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018).
14. Gratkowski (quoting Carpenter, at 2219-20).
15. Id., at 311.
16. Id. at 312.
17. Id.
18. Id.
19. Id. (quoting Carpenter, at 2217).
20. Id. (quoting Carpenter, at 2220).

Feb 10
6
Marijuana Smell Warrantless Search Texas

Is the Smell of Marijuana Enough to Permit a Warrantless Vehicle Search?

By | Drug Crimes

Does the Smell of Marijuana Allow Officers to Search My Vehicle Without a Warrant?

Marijuana Smell Warrantless Search TexasIn Texas, the answer is yes. The possession of marijuana is a crime in Texas, so if an officer smells marijuana emanating from your car, he has probable cause to believe a crime is being committed. With probable cause, the law permits the officer to stop and search your car— regardless of whether you consent.

The officer has the ability to do this through what is called the “automobile exception” to the 4th Amendment’s warrant requirement.1 Generally, the 4th Amendment to the United States Constitution requires police officers to first obtain a warrant before they can search a person’s property. However, because automobiles can quickly move locations and evade law enforcement, the Supreme Court reasoned that it would be impractical to require officers to first secure a warrant before they are permitted to search a vehicle.2 So by claiming to smell marijuana, law enforcement officers can also claim to have probable cause to believe a crime is being committed—allowing them to take advantage of the automobile exception and search a vehicle without anything more.

Will the Search Laws Change if Marijuana Becomes Legal?

Maybe. There have been small changes in the law with the current trends in marijuana legalization. A couple of state courts adopted the rule that, after legalization or decriminalization, the smell of marijuana is no longer enough on its own to justify a warrantless search of a vehicle. For example, in Vermont, after the decriminalization of adult possession of less than one ounce of marijuana, the Vermont Supreme Court held that the odor of marijuana alone is insufficient to establish probable cause to search a vehicle.3 The Massachusetts Supreme Court ruled that the state’s decriminalization policy means that the possession of marijuana is now a civil infraction, making the smell of it an insufficient basis for officers to believe a crime is being committed.

However, most states where marijuana is legalized or decriminalized still follow the rule that the smell of it establishes probable cause in support of a vehicle search.4 This is because these states still criminalize the possession of larger amounts of marijuana—meaning that the smell of it still indicates that a crime could be underway. This is the logic that the Washington, Maryland, Colorado, and Arizona courts follow.5

But what about Texas?

As stated above, the possession of marijuana in Texas is a crime, and officers are still justified in searching vehicles if they smell marijuana coming from them. However, Texas legalized the cultivation of industrial hemp in 2019, which smells like just like marijuana. The issue of whether probable cause can still be supported by the odor of marijuana in light of hemp’s legalization was raised in state court in 2020, but the court left it undecided as the vehicle search in question occurred before the legalization of hemp.6 It remains to be seen if or when Texas will legalize marijuana, and what attitude Texas courts will take towards the question of marijuana odor and vehicle searches.

 

[1] Carroll v. United States, 267 U.S. 132 (1925).
[2] Id., at 153.
[3] Zullo v. State, 2019 Vt. LEXIS 1, * (Vt. January 4, 2019).
[4] Cece white, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 211 (2020).
[5] Id., at 211.
[6] Geberkidan v. State, 2020 WL 5406243, NO. 12-19-00296-CR (2020).

Jan 11
61
Recording Conversations Texas Wiretapping

Can I Record a Conversation Without the Other Party’s Consent in Texas?

By | Criminal Defense

Recording Conversations Without Consent in Texas | Wiretapping Laws

Recording Conversations Texas WiretappingWith roadway cameras at nearly every street corner, video surveillance in businesses, doorbell cameras on homes, web cams on computers, and recording capabilities on mobile phones – we must navigate carefully in a digital world. We’ve seen titillating news reports exposing a secret audio tape of a public figure having scandalous phone conversations, or video surveillance of questionable traffic stops that escalate in shocking fashion. You may have had a suspicious feeling that you were being recorded, or on the other hand, felt as if you needed to record a conversation with another for your own protection.

With privacy seemingly harder to come by as compared with days long past—what does Texas law say about recording conversations? Is it illegal to record a phone conversation with another person? What about in person?

The short answer is: YES, you can record a conversation with another person without that person’s consent. But this answer requires more explanation.

Recording Phone Calls in Texas | Texas is a One-Party Consent State

Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you’re recording then you have probably given yourself consent to record the conversation. Generally speaking, state wiretapping laws turn on whether the state is a one-party consent state. While some states require the consent of all of the parties to a conversation prior to recording, Texas permits the recording of telephone calls, so long as the consent of one of the parties is obtained. As stated, if you are one of the parties on the phone call, then you may consent to having your own conversation recorded—you need not alert the other party. Additionally, a parent may give vicarious consent to the recording of a child’s conversation if the parent has a good faith objectively reasonable belief that the recording is necessary for the welfare of the child.

However, if during a phone call there are multiple parties who are in different states, then be aware that other state laws may require pre-recording consent of all of the parties. In this scenario, if the recording party obtains consent from the other parties before the recording begins, then the recorder is not in violation of wiretapping laws.

See this link to learn more about the various state wiretapping laws.

Recording In-Person Conversations in Texas | Can I Record Someone Else’s Public Conversation?

Texas law (Penal Code §16.02) does not permit you to record in-person communications when the parties have an expectation that such communication is not subject to interception (i.e. If there is a reasonable expectation of privacy). If you wish to record a conversation to which you are not a party, all of the parties must give consent before the recording device is turned on or there must be no reasonable expectation of privacy (e.g. If the recording is taken from your doorbell camera and the parties are standing on you doorstep). If you are a party to the conversation, record away.

Further, you are able to record in-person communication at a public place, like a mall food court or at a football game for example, where parties do not have the expectation of privacy. Remember—if you say it in a public place, within earshot of others who may overhear, you do not have an expectation of privacy in those statements. Generally, such statements may be recorded without violating that state’s wiretapping laws.

A Word of Caution of Recording Conversations in Texas

Please be aware that there are both federal and state wiretapping laws that may limit your ability to making recordings of telephone calls or in person conversations. This article addresses state wiretapping laws in Texas only. Additionally, if a person has violated a state or federal wiretapping statute, he may be both charged criminally and be sued civilly by the damaged party.

Further, while a person may have successfully recorded a conversation under state and federal wiretapping laws, the act of disclosing the recording to other third parties could be, in and of itself, punishable criminally or civilly under other legal theories (such as slander, for example).

If you are faced with a wiretapping charge, or have questions about wiretapping, please contact an attorney who will address both the state and federal regulations as they are related to the facts of your specific case. Wiretapping charges are potentially serious felonies that could land a person in jail or prison, with fines ranging from $200 to $10,000. If you are faced with charges related to wiretapping in Texas, please contact our offices at (817) 993-9249 for a consultation.

Summary on Texas Wiretapping

  • A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
  • A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
  • A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
  • It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.

This article is for educational purposes only and should never be substituted for legal advice.

May 31
2

Supreme Court Holds Police May Not Search Vehicle in Driveway Without a Warrant

By | Search & Seizure

Collins v. Virginia – US Supreme Court Considers Whether Police May Search a Vehicle in a Driveway Without a Warrant

 

Collins v. Virginia (US Supreme Court 2018)

In Collins v. Virginia, police officers were looking for a motorcycle that they suspected was stolen. They tracked the motorcycle to a home where it appeared to be parked in the driveway and covered by a tarp. Officers walked up the driveway, removed the tarp, discovered the motorcycle and conducted a search of the license plates. The license plate search indicated that the motorcycle was indeed stolen. The officers then replaced the tarp over the motorcycle and waited in their car for the driver of the motorcycle. When Collins appeared, they arrested him.

Collins’s Motion to Suppress the Warrantless Search

In the trial court, Collins made a motion to suppress evidence, claiming that the officers violated his 4th Amendment right when they entered the curtilage of his home and conducted a warrantless search of the driveway. The trial court denied the motion and Collins was convicted of Receipt of Stolen Property. The Virginia appellate court and State Supreme Court affirmed Collins’ conviction, reasoning that the “automobile exception” to the warrant requirement applied to the search in this case.

What is the Automobile Exception to the Warrant Requirement?

Generally, the “automobile exception” to the 4th Amendment allows officers to search a vehicle without a warrant if they have probable cause. The rationale behind this exception is that automobiles should be treated differently than houses because of the “ready mobility” of the automobile. Virginia argued that the automobile exception should apply in this case, because the motorcycle was capable to being driven away from the home.

Supreme Court Overturns the Virginia Courts, Defining the “Curtilage” of the Home to Include the Driveway

The US Supreme Court, Justice Sotomayor writing for a nearly unanimous court, held that the officers violated Collins’ 4th Amendment right to be free from unreasonable searches and seizures. The Court emphasized that the area of the driveway where the motorcycle was parked was a protected area of the home.

[T]he part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area “outside the front window,” that enclosure constitutes “an area adjacent to the home and ‘to which the activity of home life extends.’ “

Justice Sotomayor further explained that:

Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the exception ” from the justifications underlying’ ” it.

In holding that the search violated the 4th Amendment, the Court reversed the decision of the Virginia Supreme Court and remanded to case back to the state.

Takeaway

The curtilage of the home extends to the driveway and items that might be found therein. Of course, if the officers had been able to view the license plates from the street, without removing the tarp, things would likely be different. However, as it stands, the Supreme Court is unwilling to adopt any rule that would allow police to enter the curtilage of the home to conduct a warrantless search.

Sep 27
2
Shoplifting Before Leaving the Store

Can Police Arrest a Person for Shoplifting Before They Leave the Store?

By | Theft

Shoplifting Before Leaving the StoreThe Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. The court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.

The court of appeals held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker’s Dissenting Opinion

Mar 27
1
Terry Stop Officer Pat Down Search

“Acting Suspicious” is Not Enough to Justify a Pat Down Search

By | Search & Seizure

Does an Officer’s Testimony That a Person was “Acting Suspicious” Establish Reasonable Suspicion to Support a Terry Stop?

Terry Stop Officer Pat Down SearchThe Fifth Circuit Court of Appeals recently handed down an opinion concerning the reasonable suspicion standard required for law enforcement officers to conduct a Terry stop—an exception to the warrant requirement. The issue facing the Court was whether merely “acting suspicious” is enough to establish reasonable suspicion to justify a law enforcement officer to initiate a Terry stop.

United States v. Monsivais, 848 F.3d 353 (5th Cir. 2017)

The Facts — District Court Found the Terry Stop to be Lawful Based On the Defendant’s Demeanor, Remarks, and for Officer-safety Reasons

While on patrol in a marked police car, two officers observed Monsivais walking down the side of the I-20 interstate away from an apparently disabled truck. The officers stopped in front of Monsivais and activated the car’s emergency lights in order to ask Monsivais if he needed roadside assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going and if he needed any help. Monsivais told the officers he was heading to Fort Worth (even though his vehicle was pointed towards Abilene). During questioning, Monsivais appeared nervous and repeatedly placed his hands in his pockets; however upon the officer’s request, Monsivais removed his hands. Additionally, Monsivais responded politely to all of the officers’ questions. After approximately four minutes, one of the officers advised Monsivais that he was going to pat Monsivais down for weapons because of his behavior, inconsistent statements and for officer safety reasons. Shortly thereafter, Monsivais told the officer that he had a firearm in his waistband. The officer seized the firearm and Monsivais was later charged with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm and other evidence, arguing that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him. The district court denied Monsivais’ motion to suppress, holding only that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant’s demeanor, remarks, and for officer-safety reasons.”

The Court of Appeals Reversed the District Court’s Decision—Holding the Officers Lacked a Basis to Reasonably Suspect Monsivais of a Criminal Act

The Court first determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer converted the roadside assistance “welfare check” into an investigative detention—otherwise known as a Terry stop.

“The Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual.” However, pursuant to a narrow exception announced in Terry v. Ohio, 392 U.S. 1, 88 (1968), police officers may briefly detain a person for investigative purposes if under the totality of relevant circumstance they can point to “specific and articulable facts” that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014).

Here, the Court found that while Monsivais’ behavior might not have been typical of all stranded motorists, the officers could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him.

The court explained that Monsivais’ nervous demeanor alone was insufficient to create reasonable suspicion of criminal activity in order to justify a Terry stop. In fact, the Court gives little or no weight to an officer’s statement that a suspect appeared nervous. United States v. Portillo–Aguirre, 311 F.3d 647, 656 (5th Cir. 2002). Moreover, the Court held that evidence of Monsivais placing his hands in his pocket is of little significance. The Court noted that any number of people walking down the street might have their hands in their pockets. Additionally, the Court determined there were no inconsistencies in Monsivais’ story; and, even if there were, the inconsistencies would not connect Monsivais with any reasonably suspected unlawful conduct. Moreover, Monsivais’ choice to ignore the officers’ presence by merely walking past them, not fleeing, did not give rise to criminal activity.

In conclusion, the officer testified that he never suspected Monsivais was involved in any criminal activity, but rather that Monsivais was just acting “suspicious.” As such, the court found that the officer seized Monsivais without reasonable suspicion and that the evidence obtained from the unlawful seizure should have been suppressed.

Dec 07
2
Cell Phone Text Message Search Love 2016

Police Must Obtain Search Warrant to See Content of Text Messages

By | Search & Seizure

Cell Phone Text Message Search Love 2016From call logs, to cell tower info, to sent and received text messages, many criminal investigations involve the contents of a defendant’s cell phone.  Under the Stored Communications Act, cell phone providers can provide a users cell phone data to police during an active criminal investigation with a simple court order (like a subpoena).  But what about the actual content of text messages?  Can the police or the prosecutor get the actual content from those text messages with the same court order?

Capital Murder Conviction Gained After Judge Admits Content of Text Messages

Recently, the Texas Court of Criminal Appeals considered a capital murder (death penalty) case in which the State relied on text message evidence during trial. During the trial, the state admitted (over defense objection) the contents of text messages sent and received by the defendant. The messages established the defendant’s presence at the scene of the murder and implied his direct involvement. The state leaned on this evidence during both its opening and closing statements in the case. The defendant was convicted of capital murder and sentenced to death.

The Content of Text Messages are Not Covered by the Stored Communications Act

The appellant argued on appeal that while the Stored Communications Act allows the state to gain evidence of text messages sent and received, it does not allow the dissemination of the content of those messages. The appellant argued that the State should have obtained a search warrant backed by probable cause in order to get these records. The CCA agreed, drawing comparisons to the contents of letters sent in the mail and email stored on a server. Text message enjoy the same reasonable expectation of privacy and should be protected.

The Question in Love v. State is Whether Appellant had an Expectation of Privacy in his Service Provider’s Records

LOVE v. STATE (Tex. Crim. App – 2016), Majority Opinion

Judge Yeary penned the majority opinion in Love. The following excerpts are taken from the opinion:

Many courts have treated text messages as analogous to the content of an envelope conveyed through the United States mail…Admittedly, the analogy is not a perfect one…A letter remains in its sealed envelope until it arrives at its destination, and the telephone company does not routinely record private telephone conversations. But internet and cell phone service providers do routinely store the content of emails and text messages, even if they do not necessarily take the time to read them…[E]mpirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages…All of this leads us to conclude that the content of appellant’s text messages could not be obtained without a probable cause–based warrant. Text messages are analogous to regular mail and email communications. Like regular mail and email, a text message has an “outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient…Consequently, the State was prohibited from compelling Metro PCS to turn over appellant’s content-based communications without first obtaining a warrant supported by probable cause.

Finding that “the probable impact of the improperly-admitted text messages was great,” the CCA then reversed the conviction and remanded the case back to the trial court for a new trial.

TAKEAWAY: Not all records can be gained so easily through a court order. Some require a probably cause warrant.  Is there a reasonable expectation of privacy in the message? It might take a new analysis as our media is changing daily, but it can be worth the fight.

Note: Presiding Judge Keller dissented. She did not believe that the appellant preserved this issue for appeal.

Nov 11
1
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.

Jul 07
3
Exigent Circumstances Warrantless Blood Draw

Understaffing of Police Cannot Create the “Exigency” to Justify a Warrantless Blood Draw

By | DWI

In a Warrantless DWI Blood Draw Case, State Offers “Understaffing of Police” as an Exigent Circumstance.

Exigent Circumstances Warrantless Blood DrawBonsignore v State (2nd Court of Appeals – Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is “Dissipation” an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.

Jun 23
3
Preserve Appeal in DWI Blood Draw Case

Warrantless Blood Draw Case Turns on Defense Failure to Preserve Appellate Issue

By | DWI

Court of Criminal Appeals Considers Whether Defense Failed to Preserve Appeal

Preserve Appeal in DWI Blood Draw Case

Smith v. State (Tex Crim. App. 2016)

Warrantless Blood Draw Provides Evidence of DWI

William Smith was stopped by police for driving without a seatbelt. Immediately, law enforcement suspected Smith of driving under the influence because of the “extremely strong smell of alcohol” coming from Smith. Accordingly, law enforcement administered several field sobriety tests and determined that Smith “exhibited clues of intoxication.” Smith became belligerent after being arrested, and refused a breathalyzer. Law enforcement searched Smith’s car incident to his arrest, finding three open containers that were “cold to the touch.” Dashboard camera footage captured the entire stop.

Law enforcement decided to transport Smith to a local hospital for a blood draw because a quick check of Smith’s ID showed that he had two prior DWI convictions. The blood sample taken at the hospital reflected a blood-alcohol concentration of .21 grams of alcohol per 100 milliliters of blood—well above the legal limit of .08. Smith elected a bench trial.

Defense Counsel Argues that Blood Draw was Unconstitutional, Trial Judge Seems to Agree

At trial, the State called a forensic scientist to testify about Smith’s blood sample. The forensic scientist testified that Smith’s blood alcohol level exceeded the statutory minimum of .08. Shortly thereafter, there was discussion between the judge and counsel about Texas case law in regards to whether the court must have an “order” signed by a judge or magistrate in order for a blood alcohol test to be admitted into evidence. The defense counsel stated, “I would…object…on constitutional grounds [because] there should be a written order [in evidence].” The State replied that law enforcement was “operating under the laws of the State.” The judge seemed to agree with defense counsel, “No…the legislature allows for this…but that doesn’t mean the law is constitutional.” The judge decided to “carry” the constitutional issue so that each side could research and make a formal brief before the court. However, at the end of the trial, Smith was convicted of DWI. The judge stated the “video of [Smith] showed signs of intoxication, but the judge was surprised…that [Smith]…did as well as he did on the [field sobriety tests]” given the .21 blood alcohol concentration. The judge sentenced Smith to twenty-five years imprisonment. There were no further objections on the record made by defense counsel post-judgment.

Appeal Turns on Lawfulness of the Blood Draw

On appeal, the court of appeals reversed Smith’s conviction because the blood sample was obtained without a warrant, violating the Fourth Amendment. State appeals to the Court of Criminal Appeals, arguing that Smith did not preserve error at trial with regard to his Fourth Amendment issue, and as a result of the failure, Smith was precluded from raising a constitutional argument on appeal.

The Issue Before the CCA – Did the Defense Preserve Appeal of the Blood Draw Issue?

The CCA must determine whether defense preserved error so that the fourth amendment search and seizure issue could be raised on appeal. To preserve error, defense counsel must obtain a ruling on the complaint, or object to the trial judge’s refusal to rule.” Tex. R. App. P. 33.1(a)(2) However, “even evidence that is improperly admitted is considered in determining whether the evidence is sufficient to support a conviction.” Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim. App. 2014).

The CCA Holds that Appellate Issue was NOT Preserved

Here, the CCA determined that the trial judge declined to rule on the Fourth Amendment constitutional issue at the time, but decided to “carry” the issue. Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004). The CCA says that although the trial judge admitted the blood-alcohol test results, he did not rule on Smith’s initial objection, and thus, error was not preserved in this case. “In any event,” says the CCA, “there was…evidence to support [Smith’s] conviction aside from the blood-test results.” “Smith never asked for a ruling on the [constitutional issue], nor did defense counsel object to the trial judge’s failure to rule. In sum, failure to preserve error on a fourth amendment search and seizure argument for warrantless blood draws in DWI cases precludes a defendant from raising the constitutional argument on appeal.