Texas Criminal Lawyer Blog

Gun trafficking is a serious federal crime -- especially when it is associated with drug trafficking. Under Title 18, Section 924(h), a person who knowingly transfers a firearm, "knowing that such firearm will be used to commit a crime of violence (as defined in subsection (c)(3)) or drug trafficking crime (as defined in subsection (c)(2)) shall be imprisoned not more than 10 years, fined in accordance with this title, or both." (The laws could get tighter if specific legislation aimed at stopping gun smuggling to Mexico is passed.) The Bureau of Alcohol, Tobacco, and Firearms (ATF) also prohibits illegal purchases of firearms over the Internet. Yet because of weak state laws, firearms often travel freely from state to state without repercussions.

Here in Texas, gun laws tend to be on the weak side. Most rural Texans have some sort of firearm aboard, and get hopping mad when challenged about their right to have whatever gun they choose wherever they choose to have it. This is in sharp contrast to California, where the governor just signed a law banning the open carrying of weapons. What researchers have found is that because of the discrepancies between states, guns tend to flow from states with weak gun laws to states with strong gun laws. In New York, for instance, it was discovered that two out of three guns found were purchased in other states. While federal law prohibits selling guns to felons, it's not so difficult to find a gun show where gun sales are largely unregulated. Gun regulation has become even harder since the Supreme Court decision District of Columbia v. Heller. The result is that a lot of guns from unregulated states commit crimes in the regulated states.

No federal criminal defense attorney can view unchecked gun smuggling as a good thing -- even if he or she represents clients involved in gun crimes. First, the obvious reason: guns commit crimes and cause death. Maybe not so much in border cities, but definitely in cities like Austin and Houston. Another reason is -- if you live and commute along the United States-Mexico border -- it gives Border Patrol agents another reason to search your car. As this blog has stated repeatedly, if Border Patrol agents have a reason to look for something, they will find a way to do it illegally. That is not to say that Border Patrol agents always conduct illegal searches, but they do it frequently enough to provide a criminal defense attorney with a lot of business. Border Patrol agents need to have a "reasonable suspicion" in order to stop a car going across the border, and "probable cause" to search. This includes highway stops considered "functional equivalents" to the border, like the much publicized Sierra Blanca checkpoint .Yet too often agents will invent reasons like these. If Border Patrol agents suspect you are smuggling firearms along with drugs, they will stop your car.

Contrary to the tone of this article, however, most Texans are not smuggling firearms anywhere--they are simply exercising their right to carry a pistol or rifle when traveling the roads of the state. And they take that right seriously.

The research done on gun smuggling throughout the states shows that greater cohesion might be needed in order to prevent more crime. When neighboring states have comparable laws, the smuggling tends to occur less frequently. In the case of Texas, since all of Texas's neighbors have weak gun laws, fewer guns are smuggled from Texas into other U.S. states than one might think. (Mexico, however, is a different story.)

Most Texans, however, keep their guns to themselves, or as the old law used to say," on or about their persons, or in their saddlebags."

Most experienced federal criminal defense attorneys deal with their fair share of illegal vehicle searches and seizures. In Sierra Blanca, near the United States-Mexico border, most of these searches and seizures come in the form of Border Patrol agents stopping vehicles and seizing drugs and other property inside without justification. These searches violate the Fourth Amendment and a good attorney can often get the evidence thrown out in court. However, what if the one that violates the Fourth Amendment is your car's GPS system? The Supreme Court will have to decide after it hears arguments on United States v. Jones November 8th.

The main issues in United States v. Jones are whether the Constitution permits police officers to install a tracking device in someone's car without first getting a warrant or the car owner's permission, and whether police can legally follow a car's location through the tracking device. In Jones, the facts are as follows: in 2004, a Safe Streets Task Force of the FBI and the Metropolitan Police Department began investigating Antoine Jones, owner of a Washington, D.C. nightclub, for cocaine trafficking. After trying several different surveillance techniques, the agents got a warrant from a federal judge authorizing them to covertly install a GPS system on Jones's car. The warrant authorized the agents to install the GPS system within 10 days and only within the D.C. area, but the agents waited 11 days and did not install it until Jones's car was parked in a public parking lot in Maryland.

The GPS system gave accurate information on the car's whereabouts within 50 to 100 feet and generated information only when the car was moving. The GPS system provided data about the car's location, but not about the car's driver or any of its passengers. Using the GPS system and other surveillance information, agents were able to track Jones to a Fort Washington stash house. After obtaining warrants, they uncovered $70,000 from Jones's car and large amounts of cocaine, firearms, and other drug-related goods. Jones was charged by a federal grand jury with conspiring to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of federal law. Jones sought to suppress evidence obtained through the GPS system.

It's easy to say that any tracking system installed in someone else's car without their knowledge is bad, but the facts show that circumstances are a little more muddled. Police used other (supposedly legal) methods of obtaining information, and did get a warrant before installing the system (even if they basically ignored its restrictions). On the other hand, for police to go to the act of installing a device on your vehicle seems like a great intrusion -- too great.

The Supreme Court has been tolerant of tracking devices in the past, namely in United States v. Karo, where it stated that a beeper in a can did not constitute a search and seizure. However, in Karo the can was accepted knowingly and brought into the house, while the agents installed the GPS system without Jones ever being aware. It would be nice for the Supreme Court to take a hard line against tracking devices, in a pushback against ever-eroding privacy standards. However, this Supreme Court over the past several years has been far too willing to erode personal liberties in the face of security.

The Supreme Court has started its latest term, and one of the first items on its agenda is whether prisoners have Miranda rights.

As this blog noted earlier, Miranda v. Arizona turned 45 this year. It enshrined the Fifth Amendment right to receive a warning before being interrogated by the police: "You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed for you." The idea is to prevent an individual from saying something incriminating that could put him or her behind bars.

But what if you are already in prison for a state or federal crime? Does a Miranda warning still have any relevance, or do the convicted leave their Fifth Amendment right at the jailhouse door? That is what the Supreme Court will consider after October 4th arguments on Howes v. Fields.

In 2002, Randall Lee Fields was convicted in Michigan of two counts of third-degree sexual conduct. He was sentenced to 10 to 15 years in prison. Before trial, Fields sought to suppress an incriminating statement that he made to police while in a county jail on an unrelated charge. A police officer had taken Fields into a conference room in the sheriff's department to answer questions. Fields was wearing a prison uniform, but was not handcuffed or restrained in any way. Without first reading him his Miranda rights, two sheriff's deputies proceeded to question Fields for seven hours about his relationship with a minor. Fields was told that he could leave at any time, but he felt that he had to stay and answer. Fields never asked for an attorney or to be returned to his cell.

His motion was denied and the incriminating statement was brought in as evidence. Fields made a federal appeal, and his case was eventually heard by the Sixth Circuit Court of Appeals. The Sixth Circuit found that the state court decision was contrary to Mathis v. United States (1961), which created the rule that "a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population and interrogated . . . about conduct occurring outside of the prison." Just last year, the Supreme Court found in Maryland v. Shatzer that an inmate removed from his cell and interrogated about an unrelated crime should have a Miranda warning.

If you need a reason to believe drug smugglers deserve a fair trial like anyone else, this is the story for you. A number of people have been used as unwitting vehicles to smuggle marijuana, cocaine, and other drugs across the Texas border into Mexico and vice versa.

For example, Ricardo Magallanes, a United States citizen and El Paso college student, was crossing the border into Mexico when the U.S. Border Patrol stopped his car and performed a search and seizure. The Border Patrol agent found 112 pounds of marijuana that had been stuffed into duffle bags sitting in his car trunk. Magallenes was shocked to learn about the marijuana and terrified about his fate. "I was wondering if I was going to spend years and years in prison." The same thing happened to Jose Molina, a Mexican citizen with a long employment record and clean criminal history. He was given a free bus ride across the border to Houston; in exchange, he brought some saddles through U.S. customs. It turned out that the saddles were filled with cocaine worth $20,000.

Over and over, respectable people who crossed the border every day to earn a living were arrested for possessing drugs that they never knew were there. Of the five people arrested in El Paso, one was convicted by a jury and two pleaded guilty in order to face a reduced prison sentence.

According to Houston attorney Norm Silverman, "[t]his has been going on as long as there has been smuggling." For a drug trafficker, having an unwitting courier is the best possible situation because that person won't show the signs of nervousness that could be a tip off to law enforcement officials. The Department of Justice doesn't keep track of how many federal cases involve unwitting couriers. However, 2009 figures show that of the 3,846 defendants charged with drug trafficking in the Houston to El Paso area, 126 were dismissed.

Magallanes was lucky. After refusing to plead guilty, he was convicted by a jury, and would have gone to prison if District Judge David Briones hadn't stepped in. Judge Briones said that there was no evidence that Magallanes knew that the duffle bags were in his trunk. The judge might not have ever voiced his concerns if he hadn't spoken to a colleague who presided over the same situation. The suspect in that case was found not guilty. Judge Briones's suspicion led to a new federal investigation, where a confidential informant finally told the truth about what happened.