Texas Criminal Lawyer Blog

A court of appeals improperly substituted its own findings of fact for the trial court's findings when it reversed an order granting a motion to suppress. The Texas Court of Criminal Appeals reversed the appellate judgment and reinstated the trial court's order. Texas v. Duran, No. PD-0771-12. slip op. (Tex. Crim. App., Apr. 17, 2013). The court held that a single factual issue determined the outcome of the case, and that the appellate court was obligated to defer to the trial court on fact issues.

An officer with the El Paso police department was responding to a dispatch call at about 2:35 a.m., without his emergency lights or siren activated, when a vehicle driven by the defendant made a left turn in front of him. The officer, who was exceeding the speed limit, was reportedly forced to brake abruptly, and then made a right turn from the far left lane to follow the defendant's vehicle. Before completing the turn, the officer claimed, he saw the tire of the defendant's vehicle cross the center yellow line of the street. The officer pulled the defendant over and arrested him for driving while intoxicated.

The defendant filed a motion to suppress, arguing that the officer lacked reasonable suspicion to stop his vehicle. At the suppression hearing, the officer claimed that he believed the defendant failed to yield the right-of-way by turning left in front of him and forcing him to slam on his brakes. This made the officer decide to follow the defendant, and he testified that he witnessed the defendant cross the yellow line. On cross-examination, the officer testified that he decided to pull the defendant over when he turned left in front of him, and again when he saw the center-line violation. A former police commander called by the defense testified that, although a vehicle turning left usually must yield the right-of-way to oncoming traffic, this is not the case if an oncoming vehicle is speeding.

The Texas Court of Criminal Appeals affirmed orders suppressing evidence obtained during the search of a backyard in an animal cruelty case. Texas v. Betts, No. PD-1221-12, opinion (Tex. Crim. App., Apr. 17, 2013). The defendant successfully argued that police lacked probable cause for a warrantless search of his aunt's backyard, and that he had standing to assert Fourth Amendment violations even though he was not the owner of the property where the search occurred. The court also rejected the state's argument based on the plain view doctrine, and found that it did not properly raise the community caretaking doctrine.

According to the court's opinion, a county official in Navarro County reported seeing several unrestrained dogs roaming a neighborhood where he had previously reported dogs chained in a backyard. An animal control officer went to the address and reportedly heard a puppy barking. He entered the property and found the puppy stuck under the fence. Once in the backyard, he saw more dogs, all of which appeared malnourished and with no visible food or water to drink. Three police officers, including the police chief, responded to his call for assistance, and they seized thirteen animals from the premises. The officers testified that the dogs were visible from the roadway and were located sixty to seventy yards from the property boundary.

Prosecutors charged the defendant with felony animal cruelty. The court cites Texas Penal Code § 42.09, although the section that deals with nonlivestock animals is actually § 42.092. The defendant moved to suppress the evidence obtained in the search of the backyard. He testified that his aunt, who owned the property, allowed him to keep his dogs there, that he used to live on the property, and that he went there to care for the dogs daily. The police chief testified that he entered the property without a warrant or consent of the property owner because he reasonably believed the dogs were in "imminent danger." Id. at 3-4. The trial court granted the motion to suppress, and the court of appeals in Waco affirmed.

A federal court in Louisiana sentenced a Texas man to five years in prison for allegedly dumping wastewater in violation of federal law at a facility in Shreveport. A jury convicted him in March 2012 on all five counts from the government's indictment, which included conspiracy, obstruction, and three violations of the federal Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA). United States v. Tuma, No. 5:11-cr-00031, indictment (W.D. La., Feb. 24, 2011). While the CWA is mostly known for establishing permitting requirements and other regulations, it also prescribes criminal penalties for negligent or knowing violations of certain provisions, and allows the state to prosecute a "responsible corporate officer" for acts of a corporation. 33 U.S.C. § 1319(c)(6).

The defendant, John Tuma, who resided in Centerville, Texas, was the president of Arkla Disposal Services, Inc. He also acted as general manager of Arkla's wastewater treatment facility in Shreveport, Louisiana, which had been in operation since 2003. Tuma's son, Cody Tuma, worked as a supervisor and plant operator, and was also a defendant in the case. The facility received and treated wastewater from oil and gas exploration companies, and had a permit from the City of Shreveport to discharge wastewater to a city-owned water treatment facility. The wastewater discharged by the Arkla facility had to meet specified standards such as pH and suspended solids.

According to the government's indictment, the defendants discharged untreated wastewater from the Arkla facility directly into the Red River beginning in approximately July 2006 and continuing until at least October 2007, in amounts exceeding 200,000 gallons per day. The indictment stated five counts against both defendants. The conspiracy charge under 18 U.S.C. § 371 encompassed the other alleged offenses, alleging that the defendants acted together in order to receive more wastewater, and therefore more revenue, from customers, and to conceal the facility's failure to handle wastewater properly from regulators. Id. at 6. The obstruction charge under 18 U.S.C. § 1505 accused the defendants of various acts designed to impede oversight by the Environmental Protection Agency (EPA). The three remaining charges alleged felony CWA violations under 33 U.S.C. §§ 1311(a) and 1319(c)(2)(a) for the knowing and unlawful discharge of pollutants.

Law enforcement may set up checkpoints anywhere within one hundred miles of the U.S. borders with Mexico and Canada, according to the U.S. Supreme Court and federal statutes. The primary purpose for these checkpoints is immigration enforcement, but law enforcement also uses checkpoints, such as the Sierra Blanca checkpoint in west Texas, to search for illegal drugs and other alleged criminal acts. While law enforcement officers have a limited right to stop vehicles and ask questions of the occupants, drivers and their passengers are not necessarily required to answer. An informal campaign has recently begun at Texas checkpoints that encourages drivers to assert their constitutional rights by refusing to answer questions unless the officers can claim probable cause. This illuminates the confused state of court rulings on the constitutionality of checkpoints. The main risk faced by drivers who refuse to answer officers' question is a delay in their trip, although at least one driver has recently faced arrest.

The Fourth Amendment to the U.S. Constitution protects people from "unreasonable searches and seizures" by law enforcement without a warrant or probable cause. Some drivers traveling north on Interstate 35 from Laredo, Texas have begun to refuse to answer questions from Border Patrol agents, asserting those Fourth Amendment rights. Questions asked of drivers usually involve whether any of the vehicle's occupants are not United States citizens. According to KENS 5 in San Antonio, officers may briefly detain people who refuse to answer questions, but almost always allow them to continue on their trip within minutes. Officers may direct a driver to a "secondary inspection" area, although some drivers have reportedly refused to pull into that area and been allowed to leave. Officers arrested a driver in Laredo on May 12, 2013 after he refused to answer questions and turned off his engine. While the obstruction of traffic was likely to be the cause for arrest, officers reportedly turned him over to the Department of Homeland Security (DHS), citing federal law allowing checkpoints for immigration enforcement.

The week beginning Monday, April 15, 2013 may be the most tumultuous in the history of Boston, Massachusetts, and it surely ranks high for the nation as a whole. With one suspect in the Boston Marathon bombing dead and the other in custody, much attention turned to reports that the FBI did not read the Miranda warnings, the well-known list of a criminal suspect's rights, to the surviving suspect upon or soon after his arrest. Law enforcement cited the "public safety doctrine" as the basis for its decision to withhold the Miranda warnings. This led to much discussion in the news media and elsewhere about the Miranda warnings, which demonstrated a wide range of interpretations of what the warnings are and what they mean. Criminal defense attorneys know that the Miranda warnings are a critical part of protecting criminal defendants' constitutional rights, such as the right against self-incrimination and the right to legal counsel. It is worth reviewing the obligations of law enforcement under Miranda and the rights that the warnings protect.

Police took the surviving suspect, Dzhokhar Tsarnaev, into custody the night of Friday, April 19. Authorities announced soon after that they had not read him the Miranda warnings, and they did not say when they intended to do so. They cited concerns about possible other dangers to the public and the need to question the suspect, which in turn led to some public concern that police would effectively suspend the due process rights of Tsarnaev, who is a naturalized United States citizen, in the interest of "national security." The news media reported on Sunday, April 21 that law enforcement officers had read Tsarnaev his rights.

A trader pleaded guilty to two counts of wire fraud and conspiracy to commit wire fraud in federal court after waiving indictment. U.S. v. Miller, No. 3:13-cr-00075, information (D. Conn., Apr. 15, 2013). Prosecutors accused the trader of two separate schemes to acquire unauthorized shares of Apple, Inc. This allegedly put a broker-dealer at risk of substantial loss, and it caused the trader's employer to incur losses exceeding $5 million.

The defendant, David Miller, worked at Rochdale Securities LLC as a licensed institutional sales trader in Stamford, Connecticut. According to the criminal information, his responsibilities included "covering the accounts of certain institutional clients" and executing trades on behalf of those clients. Information at 1. Rochdale paid him in commissions based on those trades. Prosecutors described two separate schemes that led to the charges against him.

Conspiracy: The first charge against Miller involved allegations of a conspiracy between Miller and an employee of a client company, identified in the information as "Customer #1." The alleged co-conspirator would submit orders for Apple stock on October 25, 2012, the day the company was expected to post its quarterly earnings report. The co-conspirator's orders were, prosecutors argued, intentionally written in such a way that Miller could plausibly claim he read them wrong. After the co-conspirator wrote the number 125 on a buy order, Miller bought 125,000 shares of Apple, purportedly on behalf of Customer #1. By the end of the trading day, he had acquired over 1.6 million Apple shares.

In a decision based on a long-awaited en banc rehearing, the Ninth Circuit Court of Appeals limited the authority of law enforcement to search computers seized at border crossings. United States v. Cotterman, No. 09-10139, slip op. (9th Cir., Mar. 8, 2013). The court drew a distinction between a simple review of a computer's files and an in-depth forensic analysis of a computer, finding that border agents must have "reasonable suspicion" in order to conduct an in-depth search without a warrant. The decision also includes an acknowledgment that computer searches, or searches of any other digital medium, differ fundamentally from searches in the physical world.

Border agents seized the defendant's laptop computer as he and his wife were crossing the border from Mexico into the U.S. in April 2007, after receiving a computerized alert that the defendant had been convicted of child molestation fifteen years earlier. Agents conducted an initial search of his laptop and found nothing incriminating. Rather than return the computer, they shipped it to another location, about 170 miles away, where a "comprehensive forensic examination" revealed child pornography images. Slip op. at 6. This discovery occurred more than two days after the seizure of the laptop, and investigators continued using forensic software on the computer until they discovered more material after about five days. The allegedly pornographic images were found in the computer's "unallocated space," meaning a user had deleted them from the hard drive. Id. at 10, n. 5.

The U.S. Constitution prohibits laws that apply retroactively, or "ex post facto" laws. The state therefore cannot prosecute a person for an act that was not illegal when it allegedly occurred, and cannot impose punishment that was not part of the statute at the time of conviction. The Maryland Court of Appeals, that state's highest court, recently ruled that a statute requiring a person to register as a sex offender violates the Constitution's ex post facto clause, when the person's conviction occurred before the statute was enacted. Doe v. Dep't Of Pub. Safety & Corr. Servs., No. 125, September Term 2011, slip op. (Md. Ct. App., Mar. 4, 2013). This ruling diverges from U.S. Supreme Court cases on the topic, which have held that registration is not a "punishment" and therefore does not violate the ex post facto clause. The ruling could have substantial impact in drug crime cases and other cases with possible consequences beyond fines or jail.

The defendant in Maryland's Doe case pled guilty to child sexual abuse in 2006 for an alleged incident that occurred in 1983 or 1984. His plea agreement did not mention sex offender registration. The judge sentenced him to terms of imprisonment and probation and ordered that he register as a sex offender. The court struck the registration order when the defendant argued that the sex offender registration statute in effect at that time did not retroactively apply to him. The Maryland General Assembly enacted a law in 2009, however, that required people who committed an offense before October 1, 1995 but were convicted on or after that date, to register. The defendant registered under protest. The state changed the law again in 2010, making the defendant, based on his conviction, a Tier III sex offender, "the most severe designation requiring lifetime registration." Doe, slip op. at 7. By then, the defendant had already filed suit seeking a declaratory judgment that he was not required to register because the statute could not retroactively apply to him, and that registration violated the terms of his plea agreement.

Surveillance by unmanned aerial vehicles (UAVs), also known as drones, is causing concern among criminal defense attorneys and privacy advocates, as more and more law enforcement agencies acquire unmanned airplanes and helicopters. The constitutionality of warrantless drone surveillance remains in dispute. In the Texas Legislature, a House bill proposes regulating the use of drones, including requiring warrants for most surveillance operations.

Numerous police departments around the country have sought authorization to operate drones, which would allow them to monitor citizens unobtrusively from the air. According to the Federal Aviation Administration (FAA), eighty-one cities, counties, state and federal agencies, military branches, and public universities applied for licenses in 2012. Arlington, Texas, for example, has two remote-controlled helicopters purchased in 2012 for over $200,000. The Arlington Police Department was among the applicants listed by the FAA, as well as the Houston Police Department, the statewide Texas Department of Public Safety, and two campuses of Texas A&M University.

FAA regulations currently prohibit commercial drone use, such as taking photos or videos from the air for business purposes. A bill introduced in the Texas House by State Rep. Lance Gooden (R-Terrell), would prohibit any photography or videography of private property by a drone without the owner's or occupant's permission. It allows exceptions for law enforcement with a warrant or exigent circumstances and for "border security." Opponents say the bill is too vague, restricting beneficial drone uses along with the abuses. Some sort of statute may be necessary, however, to resolve privacy and due process questions left by caselaw.

Amanda Knox, the American college student convicted, then acquitted, of the murder of her roommate in Italy, is back in the news after the Italian Supreme Court overturned her 2011 acquittal and ordered a new trial. Knox returned to the U.S. after her release from prison, and reportedly has no intention of returning to Italy for the new trial. The question raised by the latest court proceedings is this: how do the Italian prosecutors keep getting opportunities to retry the case? In the American criminal system prosecutors typically do not get this many attempts at a conviction because of a principle in the Fifth Amendment known as "double jeopardy." The Knox case highlights how this principle benefits American defendants and, perhaps, serves as a check on overzealous prosecutors.

The Fifth Amendment to the U.S. Constitution states that no one may "be twice put in jeopardy of life or limb" for the same crime. If a judge or jury acquits a defendant of an offense, then the same court cannot try the defendant for that crime again. If a court dismisses the charges against a defendant after a certain point in a trial, the prosecution is barred from bringing the same charges again. A prosecutor could bring a charge under a different statute after an acquittal for the same alleged act, but only if the new charge "requires proof of a different element." Blockburger v. U.S., 284 U.S. 299, 304 (1932). One purpose of double jeopardy is to provide closure for criminal defendants after an acquittal, and also to encourage prosecutors to do a thorough investigation before initiating a case. Knox's prosecution does not appear to be subject to such a restriction.

The federal crime of "honest services fraud" has been the subject of much debate and litigation, with defendants claiming that the statute does not define the offense with enough specificity to pass constitutional muster. The U.S. Supreme Court agreed in 2010, limiting the use of the statute to specific situations involving bribes and kickbacks. This still left questions about the mental state required by the statute. A recent decision in U.S. v. Ring, No. 11-3100, slip. op. (D.C. Cir., Jan. 25, 2013) holds that the prosecution must prove that the defendant intended to influence an official act through a bribe or kickback, but does not need to prove that a public official accepted the bribe or kickback.

"Honest services fraud" appears in the U.S. Code as an addition to the definition of a "scheme or artifice to defraud," stated as "depriv[ing] another of the intangible right of honest services." 18 U.S.C. § 1346. The defendant, Kevin Ring, worked as a lobbyist in Washington, DC for Jack Abramoff, who was himself convicted of various fraud-related offenses in 2006. The federal investigation into Abramoff's activities, which involved allegations of bribes to public officials, eventually ensnared Ring and other members of Abramoff's lobbying team. A federal jury convicted Ring of three counts of honest services fraud, one count of paying an illegal gratuity, and one count of conspiracy. Ring's trial was postponed to await the Supreme Court's ruling in a case reviewing the constitutionality of the honest services fraud statute.

Federal and state drug laws do not just target controlled substances themselves, such as marijuana. They also criminalize possession or distribution of certain amounts of "precursor" materials used in the production of synthetic drugs like methamphetamine. Pseudoephedrine, a precursor for methamphetamine, is classified as a controlled substance, and is also an ingredient in many cold and allergy medicines. As a result, people who merely suffer from severe allergies may find themselves the subject of drug charges.

A criminal case in Iowa illustrates the problem for allergy sufferers who may inadvertently violate complicated legal restrictions on otherwise-legal medications. A woman with no history of drug use or drug-related arrests now faces charges for conspiracy to manufacture, deliver, or possess a methamphetamine-related substance with the intent to distribute it. Prosecutors, based on an investigation by the Southeast Iowa Inter-Agency Drug Task Force, claim that she was involved in methamphetamine ring from August 2010 through October 2012. Several other people have also been identified as possible co-conspirators. The woman claims that she never purchased more than the legal limit of pseudoephedrine-containing medications, and that every purchase was for the treatment of her own allergies.

Less than a century ago, the simplest way to spy on someone's communications was to intercept and read their mail. The means of communication have changed since then, but so has law enforcement. A sophisticated technology known as international mobile subscriber identity locators, or "IMSI catchers," can track wireless communications and locate mobile devices. Privacy advocates and criminal defendants are now pushing back against overreaching by law enforcement, since IMSI catchers can locate an individual suspect and every other nearby mobile device user. Courts remain divided on how to view IMSI catchers under the Fourth Amendment. Recent Supreme Court cases have applied strict limits on how police may use GPS tracking devices and infrared surveillance, and IMSI catchers may come under their review soon.

A popular brand of IMSI catcher among law enforcement is called the Stingray. By mimicking a cellphone tower, it tricks nearby mobile devices into sending it signals. This allows the device to identify every mobile device within range, determine their locations, and track incoming and outgoing calls. It can record the content of phone conversations on some devices. The government has reportedly gone to great lengths to avoid disclosing the details of its use of the Stingray, leading groups like the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) to campaign for transparency.

A current federal criminal case in Arizona, United States v. Rigmaiden, No. 2:08-cr-00814, is the scene of a showdown between privacy advocates and the government over the Stingray. According to the EFF, a federal judge in California ordered Verizon to help law enforcement find the defendant, Daniel Rigmaiden, by providing the location of a cellphone believed to belong to him. The government, the EFF says, then conducted their own investigation using a Stingray without Verizon's direct involvement. The Stingray located the defendant, but also exposed every other mobile device user in the area. In an amicus brief filed in support of Rigmaiden, the EFF and the ACLU argued that the use of the Stingray exceeded the scope of the court's order, and amounted to a warrantless search in violation of the Fourth Amendment. The EFF compares the practice to the searches of private homes conducted with impunity by British soldiers during the Colonial era.

Law enforcement has dramatically increased the number of requests it makes to cell phone providers for customer data, often without a warrant. Some requests come in the form of a subpoena, while others are reportedly far less formal. The state of the law regarding cell phone data, which must balance customer privacy, provider responsibilities, and law enforcement needs, remains unsettled. Some courts have ruled that accessing cellphone data without a warrant violates the Fourth Amendment, while other courts have said almost the opposite. The law has not advanced as fast as the technology.

In mid-2012, Congressman Edward J. Markey of Massachusetts requested information from nine cell phone service providers about requests they received from law enforcement during 2011. His office received responses from all nine, although T-Mobile reportedly did not include the number of requests it received in its response. The other eight providers reported a total of 1.3 million requests from local, state, and federal law enforcement agencies. Markey's office says that this is the first accounting ever performed of law enforcement requests for wireless data.

The total number of requests received in 2011 is a significant increase over previous years, according to some of the providers responding to Markey's office. Verizon said the number of requests had increased over previous years by fifteen percent, while T-Mobile estimated the increase as twelve to sixteen percent. Providers must maintain staff whose full-time job is responding to law enforcement requests. Markey's office compares the 1.3 million requests sent in 2011 to the comparatively small 3,000 wiretaps issued by courts nationwide in 2010. Wiretaps are less useful for electronic communications like text messaging and email, where law enforcement cannot "listen" to anything.

The Los Angeles County District Attorney's Office filed a motion to modify the probation of singer Chris Brown, who pleaded guilty to assault in 2009 in a highly-publicized case. Under the terms of his probation, Brown was required to perform community service. The district attorney's motion alleges that Brown either did not perform community service as he claimed in reports to the probation office, or that he did not adequately account for his time. The motion asks the court to find Brown in violation of his probation, but does not ask the court to revoke his probation. Revocation by the court could mean that Brown would have to serve a prison sentence.

Brown, a well-known R&B singer, pleaded guilty in June 2009 to the assault of his former girlfriend, the pop singer Rihanna. He had allegedly assaulted her on the night before the Grammy Awards after the two had an argument. The plea deal included a five-year term of probation, a one-year class on domestic violence prevention, and six months of a stricter form of community service known as "community labor." This allowed Brown to avoid jail and public testimony regarding the alleged assault. The court agreed to allow Brown to perform the community service in Virginia, Brown's home state and the location of a residence that he owns.