Texas Criminal Lawyer Blog

Border apprehensions may be falling, but a Border Patrol agent's work is never done. At least based on the number of overtime hours agents are working these days.

Border Patrol agents police the northern and southern borders, especially border checkpoints like Sierra Blanca, mainly for drug and immigrant smuggling. However, border apprehensions are the lowest they have been in 40 years. If that is the case, then why do Border Patrol agents possibly need overtime hours?

Travel is one explanation. Agents may need to drive from a remote location to their home base. Bureaucracy is another -- filling out paperwork from an arrest or a search and seizure. Then there is the unpredictability of hunting down suspects, which can take several hours. All of this adds up to $331 million worth of overtime -- more than twice the amount in 2006, at $155.8 million. This, despite the fact that one million arrests were made in 2006, compared to 340,000 in 2011.

But if apprehensions are down, why are so many overtime hours spent trying apprehend the suspect? Have suspects really become that much craftier since 2006? The perennial reason given is that a safe border requires a strong Border Patrol presence. Border Patrol Deputy Chief Ronald Vitiello claims: "[A]gents are responsible for securing the border against all threats. This means that agents must have the flexibility to develop intelligence, act on that intelligence, interact with the community and work with their law enforcement counterparts on illegal activity that has a nexus to the mission." Vitiello does not explain why this is truer now than it was in 2006.

Nor does he explain why Border Patrol agents on the much quieter northern border collect overtime as easily as agents on the busy southern border. Despite an average of three arrests per agent in 2011, Border Patrol agents on the northern border earned a combined $37 million. Security well worth every penny.

Back in October, this blog discussed a case called United States v. Jones that was about to be heard by the United States Supreme Court. The question before the Court was where the Fourth Amendment draws a line between a valid search and seizure and one that violates the Constitution. In Jones, FBI agents and local police officers attached a hidden GPS system to a car belonging to Antoine Jones, whom they suspected of trafficking cocaine. They then used the GPS system to track Mr. Jones to a stash house, where he was later arrested. Since in past cases, like United States v. Karo, the Supreme Court found that certain tracking devices did not violate the Fourth Amendment, many wondered if the current Supreme Court Justices would erode the right to be "secure in [our] persons, houses, papers, and effects" even further.

As it turns out, the answer is no. The Supreme Court issued its decision on Monday, unanimously reversing the conviction of Mr. Jones for drug trafficking. All of the justices agreed that the conviction could not stand when the evidence was invalid -- the FBI and police installed the GPS device without the protection of a warrant, having waited too long (beyond the warrant's 10-day window) to install the device. However, the Justices differed on what overturning the conviction meant for Fourth Amendment protections. Five Justices supported the lead opinion, written by Justice Scalia, while four Justices supported Justice Alito's rationale.

Justice Scalia wrote that there was no doubt that the government "physically occupied private property for the purpose of obtaining information," which made the GPS tracking device a search within the meaning of the Fourth Amendment. This notion of unlawful search was based on the common law notion of trespass, as understood by the drafters of the Constitution, rather than the newer Katz v. United States rationale, which states a search is unlawful if it violates the suspect's reasonable expectation of privacy. Scalia argued that the Katz was an addition, not a substitute for, the common law trespass test.

Justice Sotomayor, in her concurrence, agreed with Justice Scalia's rationale and also added: "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Sotomayor gave examples of disclosing your phone number when you text and phone, or an IP address when you surf the Internet. She doubted "people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." However, their Constitutional protection could only be assured if the courts stopped treating secrecy as a prerequisite to privacy.

In his concurrence, Justice Alito argued that the Katz reasonable-expectation-of-privacy test should be used because there were no eighteenth century situations that could be compared to the technology of today's world. There did not need to be a physical trespass in order for violation of privacy to occur.

Congressmen from Texas vow to tackle security issues in 2012, specifically border security and cyber space protection. They intend to introduce a bill to the House Homeland Security Committee that would add new technology to the border patrol, such as unmanned aerial vehicles, as well as standard airplanes and helicopters.

Congressmen such as Lamar Smith and Francisco Canseco argue that the bill is necessary because "only 44 percent of the Southwest border is under operational control of the Border Patrol." They criticize the Obama administration for reducing the number of National Guardsmen along the 2,000-mile border shared with Mexico.

Meanwhile, Texans in Congress are also hoping to advance a bill that heightened security over the Internet. Texas is home to several important government institutions and private groups, including the 24th Air Force and the University of Texas at San Antonio, which make security their business. Congressmen want to continue protecting sensitive information that the federal government stores online, and to make sure that "no enemy ever turns the Internet against the United States."

The cyber space security bill would create a quasi-governmental entity to oversee any information shared with the private sector. Private firms would be encouraged to share information on cyber threats without mandating new security measures. The Department of Homeland Security would evaluate all cyber space security risks and then determine the best way to mitigate them.

While the concern of Texas congressmen is heartening (and of course none of it has to do with the fact that San Antonio gets an economic boost from greater cyber space security measures), as usual, the legislation has the potential to go too far if Congress isn't careful. For one thing, there is the question of why the border needs so much more security when the number of crossings has plummeted, and there is no real evidence that violence from Mexican drug gangs has spilled over into the United States. If the southern border is as vulnerable as the Texas congressmen claim, why haven't there been more instances of terrorists smuggling bombs, biological chemicals, or other weapons across it? Who is to say that if they chose to, they couldn't do so even with greater security measures in place?

At the Sierra Blanca border checkpoint, and at other areas along the United States-Mexico border, vehicle searches and seizures for illegal immigrants or drugs are common occurrences. However, there may be less of a reason for a Border Patrol agent to pull over a vehicle these days. Border apprehensions of illegal immigrants have dropped to just 340,252, one-quarter less than the numbers in 2010 and one-fifth the number of apprehensions in 2000.

Border Patrol officials believe that fewer apprehensions may be due to fewer attempts to cross the border. This may be due to a variety of factors. One factor, of course, is the beefed-up presence of the Border Patrol. This past year, the number of Border Patrol agents reached its highest number ever -- 21,444. The heightened presence has led not only to the greater likelihood of apprehension, but has led to the biggest crackdown on illegal drugs to date: nearly five million pounds of narcotics were caught at the border, an increasing of 20% over 2010. Many people south of the border believe that the heightened presence of Border Patrol agents has made getting smuggled into the country more dangerous than ever, so many don't try it.

Another reason is due to the poor shape of the U.S. economy. Many people who enter this country illegally pay smugglers up to $3,000 to take them across the border. The danger and expense don't seem worth it if there isn't a job on the other side. Add in the fact that the Mexican side of the border has been caught up in drug violence, and the risk may simply be too big to take. Finally, the Mexican economy is actually doing fairly well at the moment, and the overall birth rate in Mexico has declined, creating less of a need to move to the U.S. for a better life. So all of this combined has led to a reduction in illegal border crossings. Still, the number of illegal immigrant apprehensions remains highest in southwestern states, with the biggest hot spots being Arizona (129,118), Texas (118,911), California (72,638) and New Mexico (6,910).

These numbers are likely to convince the Border Patrol that it is on the right path in terms of cracking down on drugs and illegal immigrants. That is not necessarily encouraging when you consider that the Border Patrol's tactics are often heavy-handed and not always lawful. While there have been some encouraging attempts to place limits on the Border Patrol's scope -- such as by preventing them from investigating transit stations without knowledge of a clear threat -- it isn't enough. Too many Border Patrol agents are stopping cars at the border based on prejudice or a hunch -- neither of which amounts to a "reasonable suspicion," the legal standard required. They then come up with a post hoc rationale once they find the evidence that they were looking for -- drugs or people being smuggled. Many of the people they arrest are then taken to the local jail, where it is up to an experienced federal criminal defense attorney to defend their rights.

At a time when it seems as though the Border Patrol's powers are ever expanding, one limit has finally been put in place: Border Patrol agents no longer get free rein to visit airports and other commercial hubs.

It used to be that if a Border Patrol agent suspected drug smuggling or other illegal border activity, they could visit any airport, bus, or train station where the suspect might be. However, this past October, the Border Patrol implemented a policy that prevented agents from visiting commercial hubs unless they had "intelligence indicating a threat." This policy began along the northern border of the United States, but has now been extended to some sectors along the southern border, including the El Paso sector, which includes part of western Texas.

Officials at U.S. Customs and Border Enforcement, which oversees the Border Patrol, state that this will allow the agency to use its resources more effectively. Local "field commanders" would analyze the intelligence to consider threats and risks and are send out to "mitigate these threats accordingly, using a variety of enforcement techniques." One also senses that this system is in place to promote greater accountability. One spokesman stressed: "There has to be op orders drawn up. It has to be run up the chain of command, sometimes almost all the way up to D.C."

Of course some don't like the changes, particularly the National Border Patrol Council. The Council is a labor union that includes former Border Patrol agents. The Council complains that the latest policy is designed to "handcuff the effectiveness of Border Patrol agents" at performing searches and seizures. Because of "bureaucratic red tape," Border Patrol agents cannot get authorization to operate in certain areas, giving criminals "a free pass to exploit these transit systems."

Yet if you asked people at transit hubs in Texas, you might find that the new policy has made very little difference. Employees at a Greyhound bus terminal in Laerdo, Texas claimed that Border Patrol agents still regularly appeared. One passenger noted that they gave him a "bad feeling," even though he was a citizen and otherwise law abiding.

Medical marijuana has been in the spotlight this past month, with a focus on its shaky legality. One of the main reasons is because the federal government, which was tolerant of state medical marijuana laws for the past couple of years, has started cracking down in California. Federal government officials argued that they were only targeting those who took advantage of the medical marijuana law to sell the drug for profit. Now advocates of medical marijuana are suing the federal government.

Anti-medical marijuana states such as Texas are no more tolerant of other states' medical marijuana laws than are the Feds. Under Article IV of the U.S. Constitution, the "Full Faith and Credit Clause," states have to respect the "public acts, records, and judicial proceedings of every other state." However, there are limits to this respect -- such as if the laws of one state conflict with the laws of another state. Therefore, states do not necessarily need to apply another state's conflicting laws when deciding issues to which their own laws speak. Here in Texas, this has meant direct conflict with other states with medical marijuana laws, and with "prescriptions" written by doctors in California or Oregon or other states in which marijuana is prescribed legally.

Section 481.116(a) of the Texas Health and Safety Code states: "Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice." Penalty Group 2 under the Code includes certain forms of marijuana. Someone who commits an offense under Section 481.116(a) faces punishment ranging from a state jail felony to imprisonment in the institutional division of the Texas Department of Criminal Justice for life-- depending upon the amount of drug in possession. It has been my experience that California medical marijuana tests out as hashish-a second degree felony in Texas.

Texas prosecutors claim that Section 481.116(a) prohibits all possession of marijuana -- even if it was obtained through a valid prescription in a state where medical marijuana is legal, such as California or Washington. Therefore, if a police officer found medical marijuana during a vehicle search and seizure, the owner would be left alone in California, but would be treated just like someone using recreational marijuana in Texas. Yet does Section 481.116(a) really criminalize prescription marijuana from states where it is legal? Given that Texas itself does not legalize medical marijuana, could its silence imply that Section 481.116(a) criminalizes out of state prescriptions?

So far, evidence suggests overwhelmingly that the Texas approach is to prosecute people with medical marijuana. Last year, for instance, two Texans were charged with felonies for possession of medical marijuana in hash and pill form from a California dispensary. One suffered from severe asthma, while the other was a quadriplegic. Meanwhile, Texas legislators have successfully banned K2, a synthetic substance similar to marijuana.

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.

Texas Governor Rick Perry, campaigning for president in 2012, has one message for his state: you are safer at the border than you are in Austin, and it is all the Obama administration's fault.

President Obama has taken credit for doubling the border patrol to 20,000, for drops in the numbers being held at detention centers, and lower crime rates along the border in places like El Paso and Brownsville. Yet Governor Perry thinks that the federal government has provided too little money and that the state has had to compensate by investing its own funds in the border. As a result, money that would have gone to protect the people in cities like Austin, Houston, or San Antonio was instead funneled away, turning these cities into crime-ridden nightmares.

Yet it turns out(surprise, surprise!) that both Obama and Perry may exaggerate. Even though Austin has a reputation for being one of the safest cities in the country, you are more likely to be shot there than in Brownsville, along the border. The fact that Austin's population is more than four times larger may have something to do with it. But it also owes to the fact that Brownsville and El Paso were never the dangerous border cities that many believe. While cities across the border in Mexico were plagued by crimes committed by drug lords, the Texas border cities remained largely untouched. El Paso had one homicide in 100,000, while Laredo had 3.8 and Brownsville had four. The rates stayed low even as the population in these cities surged. Meanwhile, the homicide rate in Austin, Houston, and San Antonio is 4.8 per 100,000.

Gilberto Salinas of the Brownsville Economic Development Council attributes the poor image of border cities to the widespread belief that Mexico's violence has easily crossed the border into the U.S. Indeed, many here in Texas are under the impression that Mexicans routinely shoot across the border at American citizens. Rumors forever circulate that Mexican drug traffickers harass cattle ranchers at the border, though there have been few confirmations. And people like Steven McCraw, director of the Texas Department of Public Safety, claim that Texas has "lost operational" control of its rural areas. I often get questions from readers as to the safety of particular border areas, especially around Sierra Blanca in Hudspeth County.

Whether or not McCraw's view is accurate, the truth is that the Department of Homeland Security has a $57 billion budget for 2012 -- the largest ever -- with nearly $18 million to spend on the border alone. A big chunk of that money goes to local law enforcement agencies in Texas. If anything, the reality seems to be the opposite of what McCraw claims. The Border Patrol at checkpoints like the one in Sierra Blanca routinely pull people over and make them get out of the car so that they can conduct a search and seizure. Often, Border Patrol agents are so eager to find drugs that their pretense for pulling people over is often suspect. Without valid "reasonable suspicion" for pulling people over or "probable cause" for a search, a Border Patrol agent's search could be illegal. Some people are able to hire experienced federal criminal defense attorneys, who can get this tainted evidence thrown out, but too many face sentences for crimes they didn't commit. There is certainly no sign of belligerent Mexicans firing at will or any other chaos that Governor Perry or McGraw suggest.

As if the Border Patrol didn't invite enough controversy, Texas is now permitting private guards to police the U.S.-Mexico border. The Texas Department of Public Safety has given the International Security Agency license to operate in the Rio Grande Valley. Its clients would be ranchers and local businesses threatened by violence from drug cartels. With the promise of this extra safety, however, comes questions of who exactly controls these new knights in shining armor.

ISA President Jerry Brumley insists that his guards are seasoned, responsible veterans. Any applicant to the ISA must have been in the military for at least four years with an honorable discharge, a federal or civil law enforcement officer with at least two years of service, or a security officer with six years of experience. Unlike the Blackwater guards in Iraq, his guards have never been charged with a crime. And the guards themselves would only police private property near the border -- not interfere with border agents' duties.

Yet the ISA also peddled their services to local ranchers and farmers by showing newsreel clips of a bomb exploding in a city, of smugglers abandoning cars and goods in the Rio Grande -- events that are not only not on private property, but are designed to get people pumped up and hotheaded. And ISA guards aren't troubled by traditional limitations like waiting for culprit to shoot first. "Our practice is if someone raises a weapon to me and I feel threatened, with my life or the life of my client, I am taking action," says Brumley.

So we have a private company meant to operate on private land, yet for a very public reason--the federal government failed. "It is the federal government's responsibility to protect Americans by securing the international border," says Governor Perry's press secretary, Katherine Cesinger. "[T]he federal government is not fulfilling that responsibility." With these sentiments in mind, it's a question of how long before one of these private guards takes action on public property. If they do, they might not be bound by the Fourth Amendment the way public law enforcement agencies are.

The Fourth Amendment prevents public law enforcement agents from searching a house without a warrant, auto search and seizure without probable cause, and detaining someone without reasonable suspicion. In other words, you can't just go up to someone, pin him down, and start searching through his pockets. While Fourth Amendment protections have been weakened in many troubling ways, the idea still is that you must have a reason for detaining someone, more than just a vague suspicion. What is more, your use of force must be in proportion to the danger.

Border Patrol agents are a common sight on the United States-Mexico border, especially at Texas checkpoints like Sierra Blanca. But most people don't expect to see so many agents at the U.S.-Canadian border. Most Canadians don't appear to be eager to cross the border looking for a better life in the United States. Drug smuggling is also not considered to be a major concern, even with reports of widespread drug use in Vancouver. Yet the U.S. has nearly completed a Border Patrol headquarters in Port Angelo, Washington that cost around $5.7 million. It is expected to house 50 agents.

The goal to increase enforcement along the U.S.-Canadian border dates back to at least 1999. Then, an Algerian terrorist named Ahmed Ressam was caught trying to cross the border in the very location where the new Border Patrol headquarters now stands. He belonged to a Montreal-based terrorist cell with links to Al Qaeda, and was planning to launch a "millennium terror attack" on Los Angeles International Airport. Flash forward to 2001, when the U.S. government was doing everything it could think of to prevent another terrorist attack on U.S. soil. The U.S. and Canada signed a Joint Statement of Cooperation on Border Security and Regional Migration Issues in December 2001, with the intent to work together to deter, detect, and prosecute possible security threats. In 2003, the two countries announced the creation of more border enforcement groups to improve border security.

The border between the lower 48 states and Canada covers 4,000 miles and is the longest shared border in the world. By contrast, the U.S.-Mexico border is just 2,000 miles long. Yet while the U.S. has 44% of the southern border under "operational control," just 2% of the northern border meets that standard.

It makes sense that the U.S. government, in its zeal to eliminate threats, would finally remember its northern border. Even though Canada is a peaceful country, an unguarded border means that someone with criminal intent could cross into the United States -- with consequences too great to imagine. At the same time, it's hard not to pity the poor people in the northern states. They now will get a little taste of what people from Texas and other southern border states have to put up with on a routine basis. Will Border Patrol agents be as unforgiving of Washington and other northern residents? Will people from the northern states be pulled over so that an agent can do a search and seizure without reasonable suspicion? Years of experience have given a Texas federal criminal defense attorney the skill and knowledge to fight charges based on illegal border searches. Now the northern state defense attorneys will have their turn.

Then there is the eternal question of how much security is too much. One commentator noted that 50 Border Patrol agents at Port Angelo was "about 45 more... than is probably needed." These agents "have little or nothing to do except to cruise aimlessly around the Olympic Peninsula." It's true that Port Angelo isn't a harmless spot, as evidence of Ahmed Ressam's arrest and a 2005 drug smuggling tunnel between British Columbia and Washington shows. However, it's also true that the U.S.-Canadian border is not a hive of criminal activity. So why treat everyone who crosses it as a potential criminal? Hopefully the Border Patrol at the northern border will be a kinder, gentler version of the one on the southern border -- but don't depend on it.

Willie Nelson was in the news again recently. As reported several months ago, the famous country singer was arrested in 2010 after a Sierra Blanca checkpoint search and seizure for possessing six ounces of marijuana. He was later charged with a misdemeanor. Most people in his position are turned over immediately to the Hudspeth County Sheriff's Office, where they might remain in the Hudspeth County jail for 48 hours before seeing a Justice of the Peace and having a bond set.

Nelson recently sought a plea deal, where he would plead guilty to the violation and pay a $500 fine for possession of drug paraphernalia. When the prosecutor floated this idea to Hudspeth County Judge Becky Dean-Walker, she rejected it. Willie Nelson shouldn't get special treatment, she said- claiming that County Attorney Kitt Bramblett wouldn't make this deal with anyone else. In fact, my experience has been that most people with a good lawyer don't end up with jail time, but rather pay a hefty fine and face conviction for a class B misdemeanor.

In Nelson's case, the ball is still in Bramblett's court, because it his responsibility to prosecute misdemeanors in Hudspeth County. That is, it is the County Attorney's job to see to it that the prosecution moves forward -- if not, the case could be dismissed in a few years for lack of prosecution. However, the notoriety of Willie Nelson's arrest makes that prospect a remote one indeed.

The continuation of Willie Nelson's story comes at an interesting time. The federal government recently declared that marijuana has no health benefits. The Department of Justice claimed that "marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision." This might come as a surprise to medical marijuana users in California and the 15 other states that have made it legal. A decade ago, medical marijuana supporters asked the federal government to reclassify cannabis, claiming that it helped treat glaucoma and ease the side effects of chemotherapy. In its latest decision, the government claimed that marijuana had "no accepted medical use" because no adequate studies had been performed of its health benefits. Well that settles everything.

The federal government is in an increasingly awkward position. For decades, it has been locked into the mentality that no drug is a good drug. Mild drugs like marijuana are just a gateway to more lethal drugs. Yet among the general public, acceptance of marijuana use is growing. Many of those who have smoked marijuana during a serious illness have testified to its benefits, while managing to not become serious drug abusers in the process. Many of those caught at border checkpoints like Sierra Blanca or in police raids on their homes did not pose a danger to anyone else. They were not violent or psychotic -- not even Willie Nelson. Yet the Drug Enforcement Administration and the Department of Justice can't just give up decades of strongly held belief. It is easier to force people who dabble in drugs to hire a federal criminal defense attorney to keep them out of jail than to rethink their punishment.

This is not to say that marijuana is harmless and we shouldn't be cautious. Marijuana can have harmful effects on an individual -- but about how many over-the-counter and prescription drugs could we say the same? Studies crop up all the time showing how seemingly "safe" (DEA-approved) drugs harm our bodies. Before too long, there will be a study proving that illicit drugs are safer than some of the most common prescription medicines.

The U.S. Department of Homeland Security has decided to take a more active interest in cyber crime. Secretary Janet Napolitano has called for joint cooperation with Europe in battling international cyber crime, terrorism, and trafficking.

Cyber crime comes in various forms. Much of it comes in the form of attacks on individuals for financial gain, such as computer intrusion and identity theft. Meaning, someone could access your computer remotely and steal information such as a Social Security number, then use it to access your credit cards and run up an enormous bill without your knowledge. Cyber crimes also consist of Internet pornography and online sex trafficking. Now the Department of Homeland Security is focused on cyber crimes committed by terrorists with the potential to bring down governments.

Napolitano points to recent attacks on the International Monetary Fund, the Central Intelligence Agency, and the U.S. Senate. She notes that most countries lack a legal framework for dealing with cyber crimes, and have not kept pace with advances in online terrorist activity. Government and corporate computer systems may not have the security to withstand an attack.

Without a doubt, some cyber crimes have grown more brazen. Take, for example, the recent arrest of a 19-year old from the U.K., who was accused of bringing down the website for the U.K.'s version of the FBI, and having ties to hackers who targeted the CIA and U.S. Senate. Then there's the fact that cyber attacks are being used as a choice weapon by other national governments. But not everyone accused of a cyber crime is guilty of committing one. It's important to keep that distinction in mind.

Whether in a private home or in public, it is natural for several people to use the same computer throughout the course of a day. When the Department of Justice wants to investigate illegal activity, it may issue a subpoena to an Internet search engine company or an Internet Service Provider (ISP) to provide the online data of all of the users' activities. It can even require that the ISP hold on to the data for as long as two years. As disturbing as it may be to have your activities dissected -- activities that you may no longer engage in, because it was two years ago -- it is even more disturbing when you are charged with a crime that you did not commit. That is because the search engine company or ISP has information about your computer, but not the person who used it. The person who used your computer to commit the crime could have been a passing acquaintance, someone you no longer keep in contact with. Even so, you are charged with a federal crime and must find a strong federal criminal defense attorney to fight the charges.

Like drug smuggling, gun smuggling is a federal crime in the United States. However, law enforcement has tended to be less concerned with stopping guns from crossing the border than people or drugs. As a result, smugglers have taken advantage of some generous loopholes and have sent countless numbers of weapons into Mexico, into the hands of drug cartels. Now Congress is working on a law that could change that.

Congressman Elijah Cummings is proposing legislation that specifically targets weapons shipped into Mexico. This follows a period of increasing gun violence against Border Patrol agents -- from 773 attacks in 2005 to over 1,000 attacks in 2009. In particular, there was a memorable incident where the Bureau of Alcohol, Tobacco, and Firearms (ATF) allowed 2,000 guns to be smuggled into Mexico as part of its "Fast and Furious" program. The agents thought that it would lead them to cartel leaders and assassins. Instead, all but 600 guns slipped detection, and the guns were linked to 150 murders. One of the murders was of Border Patrol Agent Brian Terry in Arizona.

The new law would punish the intermediaries who purchase weapons for the cartels. It would tighten registration requirements for purchasing multiple guns, including AK-47 assault rifles. At present, arms dealers must report multiple purchases of handguns, but not assault rifles.

In light of the increasing violence, it is clear that something needs to be done to keep weapons out of the hands of drug cartel criminals. Whether the proposed law ever becomes an actual law remains to be seen: so far, there has been no mass movement to pass tougher gun laws in Congress even after it was revealed that Al Qaeda was encouraging its terrorists to purchase weapons at gun shows. If the proposal does become a law, it may distinguish between weapons for personal use and weapons that are part of a wider smuggling operation.

Even so, if the law is too broad, there is always the concern that it could lead to even more instances of illegal vehicle search and seizure at border check points than there are already. Currently, at the Sierra Blanca checkpoint, Border Patrol agents are likely to search a vehicle stopped at the border for reasons that don't even amount to reasonable suspicion, let alone probable cause. Reasonable suspicion is defined as more than an "inchoate and unparticularized suspicion or ‘hunch,'" while probable cause is stronger: "A reasonable belief that a person has committed a crime." If Border Patrol agents have yet another incentive to search vehicles -- preventing guns from being smuggled to drug cartels -- they could claim "probable cause" for searching a vehicle because the car was the same model as one owned by gun smugglers and the passengers the same ethnicity. They could claim the passengers exhibited suspicious behavior based on their justified feelings of nervousness. The result would be more people having their privacy infringed upon, and needing an experienced federal criminal defense attorney to defend them.

In the recent case of Kentucky v. King, the Supreme Court ruled that police can create an emergency that allows them to enter someone's home without a warrant.

Normally, the home has the highest level of protection available. Police cannot just enter and search because the Fourth Amendment guarantees "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." To enter and search a home, police must have a warrant, which is based upon probable cause. Probable cause requires more than just a hunch that the homeowner is, for example, selling drugs. Police must have a reasonable belief, supported by circumstantial evidence, that the homeowner committed a crime. They must then submit an affidavit stating the basis for their belief to a magistrate. If the magistrate accepts the reasoning, he or she will issue a search warrant that clearly states the scope of the search. Police cannot search the upstairs of a house when the warrant limits the scope to downstairs.

One exception to the scenario above is known as "exigent circumstances." Under exigent circumstances doctrine, police do not need to obtain a warrant to enter a home as long as they have probable cause. Sometimes an emergency situation exists, requiring the police to enter immediately. The suspect might be on the verge of destroying the evidence, harming someone else, or escaping. Over the years, there has been some conflict over what is urgent enough to be "exigent circumstances." Now the U.S. Supreme Court has held that police-created emergency situations fall under the exigent circumstances heading.

In Kentucky v. King, Lexington police officers followed a suspected drug dealer into an apartment building. Though they didn't know which apartment the suspect had gone into, they smelled marijuana coming from one. After they knocked on the door and announced themselves, they heard shuffling noises. They opened the door and found the suspect with drugs and drug paraphernalia.

All of the justices joined the majority opinion except for Justice Ginsberg. They held that exigent circumstances applied even in police-created emergency situations because a police search needed only to be reasonable and based on probable cause. While a warrantless search was presumptively unreasonable, the presumption could be overcome when the "exigencies" of the situation made the needs of law enforcement compelling enough. The Court rejected the lower courts' "police-created exigency" doctrines, which were created as an exception to the usual "exigent circumstances" rule. These doctrines placed too great a burden on police officers to behave in a certain way that would not create an unnecessary crisis. The Court found that the police did not act in bad faith and had the necessary probable cause before entering.