Texas Criminal Lawyer Blog

ColourIrisThe technology available to law enforcement tends to advance at a much faster rate than the laws that check overreach and abuses by police and prosecutors. By the time the courts have addressed how certain technologies fit with the various protections of the Bill of Rights, a new technology is available that creates new concerns. Biometric technology, which enables the identification of individuals based on unique characteristics such as DNA, fingerprints, or even the shapes of people’s faces, comes with many concerns for people’s Fourth Amendment rights. Facial recognition software (FRS) is now used by both law enforcement and the private sector for a variety of purposes, many of which pose problems not only because of privacy issues, but also because of the risk that the software will make an incorrect identification.

The concern that FRS undermines Fourth Amendment protections against unreasonable searches and seizures is not new, as evidenced by a law journal note published over a decade ago. Nguyen, Alexander T., “Here’s Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked the Fourth Amendment?” 7 Va. J. L. & Tech. 2 (2002) (PDF file). Courts have generally held that police may use technology that enhances what individual law enforcement investigators could see on their own, such as cameras used in aerial surveillance, Dow Chemical Co. v. United States, 476 U.S. 227 (1986), or a flashlight used “to illuminate a darkened area,” Texas v. Brown, 460 U.S. 730, 740 (1983). The concern, according to the note, arises when technology replaces an investigator’s senses rather than merely enhancing them. Nguyen at 12, citing Kyllo v. United States, 533 U.S. 27 (2001).

Most FRS only uses photographs taken in public places, and the general rule for some time has been that people have no reasonable expectation of privacy in public. The Supreme Court has also held, however, that people should be free “from arbitrary surveillance by their government.” Nguyen at 18, quoting Dow Chemical, 476 U.S. at 240. The problem with FRS, from that point of view, is that it “subjects everyone, including innocent citizens, to indiscriminate scrutiny.” Id. [emphasis in original.]
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647478939_938710c425_oThe Bill of Rights provides several critically important protections in criminal cases. The Fourth Amendment’s protection against unreasonable searches and seizures prohibits the arrest of a person without, at a minimum, probable cause. The Fifth Amendment states that a person may not “be compelled…to be a witness against himself,” which is the major component of the “right to remain silent” in criminal cases. These protections all come into play when a person confesses to a crime during a police interrogation. An appellate court in Illinois issued a ruling late last year that rebuked the state’s claim of a “voluntary” confession. Illinois v. Jackson, 2014 IL App (3d) 120239. The ruling highlighted the dangers presented when the government does not respect the protections of the Bill of Rights during an investigation. Although this case is from Illinois, it draws on U.S. Supreme Court precedent that affects Texas as well.

The case involved charges of first-degree murder for a fatal shooting in August 2009. Police arrested the defendant without a warrant in March 2010. An eyewitness to the shooting had reportedly told the police on several occasions that, while he was acquainted with the defendant, he did not know the shooter. He testified that “the officers would not accept this explanation” and, during an interrogation in late February 2010, kept showing him the defendant’s photo. Id. at 6. Eventually, he told the officers that the photo “resembled” the person he saw pull the gun. Id. This apparently formed the entire basis for the defendant’s arrest about a week later, since the police found no other evidence linking the defendant to the scene of the crime.

The defendant did not expressly state that he wanted a lawyer or that he was invoking his right to remain silent. He testified that he began answering the officers’ questions because he “got tired of them nagging.” Id. at 5. The court’s order includes a portion of the transcript of the police interrogation in which a detective tries to convince the defendant, who is African-American, to confess by telling him that he will not be able to get a fair jury trial because of his race, and because of prejudices harbored by not only the jurors but the judge. He even claims that this prejudice will “negate the credibility of any witnesses he might call.” Id. at 38.
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search-engine-464188_640.pngThe criminal justice system generates a vast amount of records, including case files, arrest reports, and jail records. An acquittal or dismissal of charges, unfortunately, does not end the impact of a case on a person’s life. A background search could reveal information that harms their chances at employment, even if they have no convictions. Most states allow people to remove information about dismissed cases from the public record, a process known as “expunction” or “expungement.” These processes predate the internet, though. Today, a background check might include a search of public records and a Google search. A recent court case considered whether an expunction requires private entities like news services to remove references to an arrest. The general rule has been and remains that expunction does not place restrictions on private individuals or businesses.

In Texas, expunction is available in many cases that resulted in an acquittal, convictions that have been overturned on appeal, cases in which the defendant received a pardon, cases in which the defendant has successfully completed a program of deferred prosecution and received a dismissal of charges, and cases in which charges were never filed. Tex. Code Crim. P. Art. 55.01. Juvenile records are typically sealed at some point after a case concludes, Tex. Fam. Code § 58.003, but expunction procedures are also available in many juvenile cases.

An individual must petition for an expunction in the same court that heard the criminal case, or in the same jurisdiction as the arrest if no charges were filed. Tex. Code Crim. P. Art. 55.02. If granted, the expunction order directs court clerks, law enforcement agencies, and other offices to remove and destroy records related to the case. Any use, distribution, or publication of expunged records is prohibited, and the person “may deny the occurrence of the arrest.” Tex. Code Crim. P. Art. 55.03.
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4156375919_fcab94358d_z.jpgIn early 2015, a federal jury found the alleged proprietor of an online marketplace for illegal drugs guilty of online drug distribution, conspiracy to commit computer hacking, conspiracy to commit money laundering, and other charges. Prosecutors accused the defendant of creating and operating the marketplace, known as the “Silk Road,” using the pseudonym “Dread Pirate Roberts.” United States v. Ulbricht, No. 1:14-cr-00068, superseding indictment (S.D.N.Y., Aug. 21, 2014). The defendant’s principal defense strategy involved admitting to creating the site but claiming that he was not the “Dread Pirate Roberts” who had operated it in recent years. After the jury convicted him, the court vacated two counts. It sentenced him to concurrent life sentences on two counts and to concurrent three-year sentences on each of the three remaining counts.

Prosecutors alleged that the defendant created and operated the Silk Road, an online marketplace for illegal drugs. The Silk Road operates in what is known as the “dark web,” where users can only access the site by using software to conceal their identities and locations. Most transactions allegedly take place using Bitcoin and other forms of anonymous currency.

Prosecutors had the burden of proving, first, that the “Dread Pirate Roberts” operated the Silk Road, and second, that the defendant was the “Dread Pirate Roberts.” Law enforcement officers arrested the defendant at a San Francisco public library in 2013, and FBI officials stated that he was logged into a Silk Road site at the time. Investigators were able to access the Silk Road’s infrastructure as a result, and prosecutors used this as evidence against the defendant.
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JWH-018.jpgThe owner of a Texas-based chain of retail stores, along with multiple store managers and others, is facing federal drug charges arising from an investigation by the Drug Enforcement Administration (DEA) into the alleged production, importation, and sale of synthetic marijuana. United States v. Gas Pipe, Inc., et al., No. 3:14-cr-00298, superseding indictment (N.D. Tex., May 6, 2015). The investigation became public last year, and an indictment was filed under seal at some point in 2014. In addition to drug-related charges, the defendant is charged with conspiracy to defraud the United States and money laundering.

The defendant owns and operates a chain of stores known as the Gas Pipe, which has locations in the Dallas/Fort Worth area, Austin, and Albuquerque, New Mexico. He opened his first location in Dallas in 1970 as a head shop, which sells smoking-related products. He and his company have reportedly had problems with law enforcement at various times since then, usually involving drug paraphernalia allegations. He faced forfeiture actions in 1981, 1982, and 1994. Each time, he recovered most or all of the seized property. A forfeiture lawsuit filed by federal prosecutors in 2006 resulted in a settlement.

DEA agents seized 10 of the chain’s 14 locations last year, along with almost $3 million from company bank accounts, after claiming that undercover agents purchased synthetic marijuana at those locations. “Synthetic marijuana” refers to a number of chemical substances that can mimic the effect of marijuana. They are often sprayed onto plant material and packaged under names like “K2” and “Spice.” Law enforcement officials state that synthetic marijuana has been connected to numerous hospitalizations and several deaths. Officials claimed that the product labeling identified it as “incense” and stated that it was “100% cannabinoid free” and “Not fit for human consumption.”
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WI_Police_Dog.jpgThe U.S. Supreme Court issued an important ruling restricting the ability of police to use drug-sniffing dogs during traffic stops. Rodriguez v. United States, 575 U.S. ___ (2015). The court had previously ruled that the use of a drug-sniffing dog during a traffic stop does not inherently violate the Fourth Amendment prohibition on unreasonable searches and seizures. Illinois v. Caballes, 543 U.S. 405 (2005). The Rodriguez decision holds that police may not unreasonably extend the duration of a traffic stop without probable cause. The ruling is important but still allows police numerous potential loopholes.

The case began when a police officer observed the defendant’s vehicle veer onto the shoulder of a state highway in Nebraska, in violation of state law. Neb. Code § 60-6,142, cf. Tex. Transp. Code § 545.058. He pulled the defendant over and questioned him and his passenger. The defendant stated that he swerved onto the shoulder to avoid a pothole in the road. After running a records check on the defendant, the officer issued a written warning.

The officer acknowledged that the purpose of the stop was “out of the way” at that point. Rodriguez, slip op. at 2. Instead of allowing the defendant to leave, however, he asked if the defendant would agree to let the officer’s drug dog walk around his vehicle. The defendant refused, and the officer ordered him and the passenger out of the car. The officer made two passes around the vehicle with the dog. On the second pass, it alerted to drugs, which turned out to be methamphetamine.
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Rhinocéros_blanc_JHE.jpgHunting is a popular activity throughout Texas, but both state and federal laws set important limits on when and what types of animals people may hunt. A number of laws also restrict the purchase and sale of products derived from certain animals, especially non-native animals and animals deemed “endangered” by federal laws or treaties. Texas is reportedly becoming a hub for the illegal trade of various animal products, including rhinoceros horns. Several recent cases demonstrate the potential criminal consequences of buying or selling these types of items.

One of the main federal statutes restricting commerce in certain animals and animal products is the Endangered Species Act (ESA) of 1973, 16 U.S.C. § 1531 et seq. This law is mostly known for restricting development in areas that are habitats for certain animal species, but it also imposes criminal penalties for unauthorized importation, transport, or sale of those species. The Lacey Act of 1900, 16 U.S.C. § 3371 et seq., addresses animals and animal products obtained through illegal hunting, and it has a broader scope than the ESA in terms of the species it protects. The Migratory Bird Treaty Act (MBTA) of 1918, 16 U.S.C. § 703 et seq., addresses unauthorized hunting, capturing, or trading in designated species of migratory birds.

The federal government has been engaged in an operation for several years involving multiple agencies, nicknamed “Operation Crash,” with the goal of prosecuting people involved in the trafficking of rhinoceros horns. Five species of rhinoceros are designated as “endangered” under the ESA. 50 C.F.R. § 17.11(h).
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6355289075_071acbf08f_z.jpgCivil asset forfeiture has received a significant amount of attention recently, and for good reason. If law enforcement believes that property has been used in the commission of a crime, or obtained with the proceeds of a crime, civil forfeiture allows the state to seize that property and divest its owner of title. See Tex. Code Crim. P. Art. 59.01 et seq., 18 U.S.C. § 981 et seq. This has resulted in many law enforcement agencies, according to various news reports, using civil forfeiture as a means of generating revenue, and even creating “wish lists” of items to seize. Some states are now scaling back on this practice by requiring a criminal conviction in forfeiture cases. The federal government announced that it was scaling back on parts of its forfeiture programs, although it still engages in practices that are widely criticized.

Federal law allows law enforcement agencies to seize property based on suspicion of criminal activity. In January 2015, then-Attorney General (AG) Eric Holder announced that the Department of Justice (DOJ) and the Department of Treasury (DOT) would cease a practice known as “federally adopted forfeiture,” by which a federal agency takes custody of property seized by state or local law enforcement at their request and commences federal forfeiture proceedings.

The extent to which the AG’s announcement changes actual practice by federal law enforcement remains to be seen. Prior to the announcement, the DOJ’s apparent policy was that “[f]orfeiture is one of the most effective weapons in the law enforcement arsenal and its use should be encouraged.” DOJ, Asset Forfeiture Policy Manual (PDF file) at 42 (2013). Even after the AG’s announcement, federal agencies are still expressly authorized to use forfeiture in joint federal-state and purely federal operations.
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320823424_e373fdd313_z.jpgPolice departments around the country are using a device known as a “stingray,” which allows them to track suspects by their cell phone signals. Stingrays have become a cause for concern for many people, not only because police are apparently using them to track specific individuals without obtaining a warrant, but also because many departments seem to be going to great lengths to keep information away from the public. This reportedly includes dismissal of charges merely to avoid disclosing details about stingray use. Numerous lawsuits are either challenging stingray use or seeking information under state open records laws. A judge in New York ordered police to produce stingray records, rejecting their arguments for keeping them secret. In Texas, a bill is currently pending in the Legislature that would require a warrant for stingray use.

Stingrays allow police to intercept cell phone communications by mimicking a cell phone tower. The phone automatically sends identifying information to the stingray, just as it would do to any cell tower. The telecommunications companies that operate the cell tower network have vast stores of data regarding cell phone locations. Courts are split on the question of whether police must have a warrant to obtain this data from cell tower operators. With stingray technology, police can track a suspect in real time, while data obtained from cell towers only provides location data after the fact.

A lawsuit brought under New York’s open records law has reportedly revealed a deal between the FBI and the Erie County Sheriff’s Office in New York, in which the FBI told the sheriff’s office to drop certain criminal cases rather than reveal stingray-related information. A New York judge described the deal in an order directing the sheriff’s office to produce such records. N.Y. Civil Liberties Union v. Erie Co. Sheriff’s Office, No. 2014/000206, judgment (N.Y. Sup. Ct., Erie Co., Mar. 17, 2015).
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DOWNTOWN_BMORE_1.jpgThe city of Baltimore, Maryland experienced a significant upheaval during the last week of April 2015, and continuing into early May, as residents protested mistreatment by the city’s police department. The incident that sparked the protests, the death of 25 year-old Freddie Gray in police custody, resulted in criminal charges against six police officers on May 1. During the week leading up to the announcement of the criminal charges, however, violence broke out on multiple occasions, resulting in property damage, clashes between protesters and police, and hundreds of arrests. Many arrestees found themselves subject to substantially large bail amounts, which raises the question of how much bail, given the Eighth Amendment’s prohibition on “excessive bail,” is too much. That question, unfortunately, has no simple answer.

One story that gained national attention involved an 18-year-old man seen in photographs smashing the windows and windshield of a Baltimore police car. At the urging of this mother and stepfather, he surrendered to police voluntarily, but he was held on $500,000 bail. According to local media, his family cannot possibly pay this amount. The man is charged with eight offenses, all misdemeanors, including malicious destruction of property and rioting. Malicious destruction of property carries a maximum penalty of three years’ imprisonment under Maryland law if the damage is at least $500. Md. Crim. Law Code § 6-301(b). The severity of a charged offense is one of the main factors in determining bail, so the “rioting” charge may be key to understanding the bail amount.

Most states have a statute specifically defining the criminal offense of rioting. See Tex. Pen. Code § 42.02. Maryland, however, uses the common law definition of rioting, which involves three or more people engaged in an unlawful assembly “to carry out a common purpose in such violent or turbulent manner as to terrify others.” Schlamp v. Maryland, 891 A.2d 327, 334 (Md. Ct. App. 2006), quoting Cohen v. Maryland, 195 A. 532, 534 (Md. Ct. App. 1937). Although the offense is categorized as a misdemeanor, the maximum penalty under state sentencing guidelines is life imprisonment. Md. Sentencing Guidelines Manual v. 7.0, App. A at 18 (Feb. 1, 2015) (PDF file).
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