TSA airport signThe “border search exception” to the Fourth Amendment’s search warrant requirement has been part of this country’s law since the very first session of the U.S. Congress. Federal officials, for example, have the authority to search “all persons coming into the United States from foreign countries.” 19 U.S.C. § 1582. The legal principle behind the border search exception is the right of the United States, as a sovereign nation, to control who and what enters its territory. The “border” is no longer limited to border crossings and seaports. It now includes international airports, and the search practices allowed for international travelers have expanded to affect purely domestic travel. As a result, Texas drug charges may result from searches at airports under federal law.

Warrantless searches at airports may be justified by a combination, depending on the circumstances, of the border search exception, which is based on national sovereignty, and exceptions that are based on individuals’ reasonable expectations of privacy. The courts have ruled that international travelers at airports do not have a reasonable expectation of privacy, comparing it to the “automobile exception” allowing warrantless searches of vehicles in some situations. Florida v. Royer, 460 U.S. 491, 515 (1983), citing United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976).

The Transportation Security Administration (TSA) is in charge of passenger security screenings at all U.S. airports. Congress created the agency in the Aviation and Transportation Security Act. Pub. L. 107-71 § 101, 115 Stat. 597 (Nov. 19, 2001); 49 U.S.C. § 114. The TSA was initially part of the U.S. Department of Transportation, but the Homeland Security Act of 2002 moved it to the newly created Department of Homeland Security (DHS). Pub. L. 107-296 § 403(2), 116 Stat. 2178 (Nov. 25, 2002); 6 U.S.C. § 203. The TSA is responsible for screening all air passengers and their luggage prior to boarding, with broad authority to do so. 49 U.S.C. §§ 114(e)(1), 44901.

Fort KnoxA new law that took effect in Texas in September 2017 allows people with convictions for driving while intoxicated (DWI), if they meet various criteria, to petition for an order of nondisclosure. This order prevents state and local law enforcement agencies from releasing information about the arrest, prosecution, conviction, and sentence. In addition to the limitations on eligibility for DWI nondisclosure, the new law might exclude some people in possibly unexpected and unintended ways. Defendants charged with a Texas DWI should understand how the new law might apply—or not apply—to them when considering a plea agreement.

The Texas Penal Code classifies DWI as a Class B misdemeanor when a driver’s blood alcohol concentration (BAC) is at least 0.08 percent but less than 0.15 percent. Tex. Pen. Code § 49.04. If the BAC is 0.15 or higher, it is a Class A misdemeanor. Texas law allows two different types of “community supervision” as alternatives to the punishment prescribed by the Penal Code. Probation involves a formal finding of guilt after a guilty or no contest plea, followed by a period of time during which the punishment is probated. If the defendant successfully completes the services the court orders, the punishment is deemed completed. With deferred adjudication, the court accepts a guilty or no contest plea but does not make a formal finding of guilt. If the defendant abides by the court’s orders for a defined period of time, the case is dismissed with no final adjudication. Defendants charged with DWI are not eligible for deferred adjudication in Texas. Tex. Code Crim. P. Art. 42A.102(b)(1)(A).

The new DWI nondisclosure law, H.B. 3016, may apply to cases that ended with probation and cases in which the defendant served a sentence. It only applies to Class B misdemeanor DWI cases, and it excludes cases that involved vehicular accidents involving any person other than the driver, whether or not anyone was injured. The earliest date a person can file a petition for nondisclosure ranges from two to five years after the conviction date, depending on whether the defendant received probation and whether they were ordered to use an ignition interlock device.

Texas criminal proceedings are, in most cases, part of the public record. This means that anyone who knows where to look can obtain information about specific criminal cases, including arrest records and records involving probation and other outcomes. It is possible, in limited circumstances, to obtain an expunction or an order of nondisclosure, which directs public officials and agencies not to release information about a particular criminal case to the public. A new law passed by the Texas Legislature, H.B. 3016, expands the availability of nondisclosure orders in Texas DWI cases, with some exceptions.

Texas DWI SignDWI is a misdemeanor criminal offense under Texas law. “Intoxicated” is defined as either lacking “the normal use of mental or physical faculties” because of alcohol or drugs, or having a blood alcohol concentration (BAC) of at least 0.08 percent. Tex. Pen. Code § 49.01(2). A DWI offense is ordinarily a Class B misdemeanor with a minimum jail sentence of three days, or a minimum sentence of six days if a defendant had an open container of alcohol in their “immediate possession.” Id. at §§ 49.04(b), (c). If a defendant’s BAC was 0.15 percent or more, however, it becomes a Class A misdemeanor. Id. at § 49.04(d).

The Governor of Texas signed H.B. 3016 into law on June 15, 2017. It took effect in September, and it applies retroactively to all DWI cases in the state, not just convictions entered on or after the effective date. The bill amended the provisions of state law that establish procedures for orders of non-disclosure, see, e.g., Tex. Gov’t Code § 411.074, and added new sections specifically addressing DWI cases at §§ 411.0731 and 411.0736.

DrugsA jury in a federal court convicted a former hedge fund manager of three out of eight counts related to securities fraud in early August 2017. The government had charged the defendant with multiple counts related to alleged defrauding of investors and misuse of corporate funds, as well as conspiracy to commit various fraudulent acts. United States v. Shkreli, No. 1:15-cr-00637, superseding indictment (E.D.N.Y., Jun. 3, 2016). The case is notable in part because of the high degree of infamy gained by the defendant for reasons unrelated to this case. The securities and wire fraud charges in this case added to the defendant’s unpopularity, presenting challenges for the defense team.

The Securities Exchange Act of 1934 regulates the trading of various securities, particularly corporate stocks. It prohibits “any manipulative or deceptive device or contrivance” connected to “the purchase or sale of any security.” 15 U.S.C. § 78j(b). This broad phrasing has been applied to a wide range of actions deemed fraudulent by securities regulators and prosecutors. The statute allows criminal prosecution for “willful” violations, allowing penalties for individuals of up to 20 years’ imprisonment and a fine of up to $5 million. Id. at § 78ff(a).

Proving the required elements of securities fraud in a federal or Texas criminal case can be very difficult, but federal law also allows the government to charge a person with conspiracy to commit an offense. 18 U.S.C. § 371. A conspiracy charge requires evidence that two or more persons, which could include individuals or certain organizations, conspired to commit an offense and that the defendant took an “overt act” in furtherance of the conspiracy. If the underlying offense is a felony, the conspiracy statute provides for imprisonment of up to five years.

Asset ForfeitureThe process of asset forfeiture, at least in principle, allows law enforcement to seize property used in the commission of a crime. Officials can sell the property at auction, with the proceeds often going back into law enforcement budgets. As the use of this procedure has grown, however, it has produced many unjust results. During the Obama administration, the Department of Justice (DOJ) sought to limit the use of asset forfeiture by federal law enforcement. The new Attorney General (AG), however, has rescinded the previous administration’s policy and issued a new order that could expand the use of the procedure. This has brought opposition from both parties in Washington, but it is not yet clear to Texas criminal attorneys what impact this order will have.

The principle behind asset forfeiture is to deprive criminals of property used in the commission of crimes, applying the value of that property toward law enforcement activities. In practice, asset forfeiture often strays far from this noble purpose. Criminal asset forfeiture requires a level of proof that is at least somewhat close to the state’s burden of proof in a criminal prosecution. See 18 U.S.C. § 981. Civil asset forfeiture, on the other hand, has a lower burden of proof, does not require an actual conviction for an actual crime in many cases, and does not necessarily require the joinder of the property owner as a party. Id. at § 982. A civil forfeiture case might be styled, for example, United States v. $50,000 in Cash, with the owner of that money nowhere to be found.

A particularly controversial element of federal asset forfeiture is a process known as “adoption.” When state or local police seize property and turn it over to federal authorities, adoption provides for “equitable sharing” of the proceeds of the ensuing forfeiture case. See 28 U.S.C. § 524(c). Most of the proceeds can end up back with state or local law enforcement under this program, creating an incentive for local authorities to use federal forfeiture procedures whenever possible instead of state forfeiture laws that might have more built-in protections for property owners.

stray catThe right against self-incrimination is a well-known part of the U.S. Constitution, but it is not always well understood. Applying this principle in the real world, with all of its ambiguity and uncertainty, has proven quite challenging for the courts. The Fifth Circuit Court of Appeals recently ruled on a claim that police violated a person’s First, Fourth, Fifth, and Fourteenth Amendment rights by allegedly retaliating against a person after he refused to answer their questions. The court ruled for the plaintiff on his Fourth Amendment claims but not the other claims. Alexander v. City of Round Rock, No. 16-cv-50839, slip op. (5th Cir., Apr. 18, 2017). The case is a civil lawsuit, rather than a criminal prosecution, but its interpretation of the Fifth Amendment’s right against self-incrimination could affect future Texas criminal cases.

The Fifth Amendment’s protection against self-incrimination generally means that a person cannot be compelled or coerced into saying something that could place them in criminal trouble. A refusal to answer questions because of this right is commonly known as “pleading the Fifth.” The Fifth Amendment has also been interpreted as requiring courts to suppress confessions by defendants that were not given voluntarily. The caselaw remains unclear on which remedies may be available when a Fifth Amendment violation occurs outside the context of a custodial interrogation.

According to the court’s statement of the facts of the case, all drawn from the plaintiff’s complaint, an officer stopped the plaintiff “in a hotel parking lot after observing what he perceived as suspicious activity.” Alexander, slip op. at 1. The plaintiff stated that he had stopped his vehicle and gotten out to look for a stray cat he had seen. He told the officer that he would not answer any of his questions.

CrumbsLaw enforcement officials in Texas have used a variety of tools to help them investigate suspected drug-related offenses. Some of these tools have resulted in profound injustice in the form of wrongful convictions. A kit used by many officers around the state to test substances they believe are an illegal drug has returned “positive” results for substances later revealed to be innocuous. By the time more accurate test results were available in many of these cases, defendants had already pleaded guilty rather than risk going to trial against what police had represented as incontrovertible evidence of guilt. Now, the Houston Police Department has announced that it will no longer use these field kits, but not because of concerns about justice. Instead, the department cited risks posed to officers from opiate exposure during testing. Still, this is welcome news for Texas criminal defense advocates.

In any criminal prosecution, the state has the burden of proving every element of the charged offense, as it is defined by statute, beyond a reasonable doubt. Field-testing kits are often used by police to test substances believed to be cocaine. The relevant criminal charge would likely be possession of a controlled substance in Penalty Group 1. This would require proof beyond a reasonable doubt of four elements:  that a defendant (1) possessed a controlled substance (2) that is included in Penalty Group 1, (3) that the defendant did so “knowingly or intentionally,” and (4) that the defendant did not have a valid prescription for the substance from a medical doctor. Tex. Health & Safety Code §§ 481.102(3)(D), 481.115(a).

In a cocaine possession case, the prosecution must prove beyond a reasonable doubt that the substance is, in fact, cocaine. The requirement of proof beyond a reasonable doubt means that the “finder of fact” concludes that no reasonable doubt exists as to whether the substance is cocaine. The “finder of fact” is either the judge presiding over the case or a jury of the defendant’s peers. Results from a drug-testing kit routinely used by police can appear very convincing, unless the defendant is able to challenge the accuracy or validity of those test results. An innocent defendant without the resources to challenge the test results might choose to plead guilty rather than risk turning the decision over to a jury.

cannabis oilMost states in the U.S. now allow, to some extent, the sale, possession, and use of marijuana for various purposes. Several states, beginning with Colorado, have effectively legalized recreational use of marijuana in small amounts. Many of these states, however, only allow the use of specific marijuana-derived products for specific medical uses, under a doctor’s supervision. Texas is among the states that have only slightly eased restrictions on marijuana. Even the minor recent changes to state law, however, have resulted in significantly different priorities between the federal and Texas criminal justice systems. Marijuana remains a highly controlled substance under federal law, but since 2014, Congress has barred federal law enforcement from interfering with state medical marijuana programs. The U.S. Department of Justice (DOJ) has recently lobbied Congress to repeal this provision, but a Senate committee approved renewing it this summer. Shortly afterwards, Texas issued the first license under this state’s medical marijuana law.

Marijuana is a Schedule I controlled substance under federal law, meaning that Congress has deemed it to have “no currently accepted medical use.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). Texas also continues to treat marijuana as a strictly controlled substance in most circumstances, but in 2015, the Texas Legislature enacted the Texas Compassionate-Use Act (TCUA). This law allows the use of “low-THC cannabis” for the treatment of intractable epilepsy, defined as a “seizure disorder” that has persisted after the patient has tried “two or more appropriately chosen and maximally titrated antiepileptic drugs.” Tex. Occ. Code §§ 169.001(2), (3). The TCUA establishes standards for the licensing of “dispensing organizations” and registration of individuals involved in producing, distributing, prescribing, and using low-THC cannabis. See Tex. Health & Safety Code § 487.001 et seq.

Despite the many layers of administrative procedures put in place by the TCUA, it still violates federal law, at least in a technical sense. Federal law enforcement officials, from the President and the Attorney General (AG) down to individual DEA agents, have taken a wide range of views on whether federal law should supersede state medical marijuana programs. The view of the current AG appears to be that federal drug enforcement efforts take precedence, but Congress has generally disagreed.

MDMA capsulesThe federal Controlled Substances Act (CSA) defines five schedules of controlled substances and prescribes penalties for their production, distribution, and possession. Texas drug crime laws contain similar schedules. The CSA includes a list of substances in each schedule, but it also gives some authority to the Department of Justice (DOJ) to modify or adjust the schedules. The DOJ has delegated this authority to the Drug Enforcement Administration (DEA). One factor considered in the scheduling of controlled substances involves the potential for medical use. A different federal agency, the U.S. Food and Drug Administration (FDA), deals with drugs used for medical purposes. Recently, the FDA announced that it will allow further research into the medical potential of a Schedule I controlled substance known as MDMA. While this research could lead to FDA approval of MDMA for medical purposes, the DEA or Congress would still have to remove it from Schedule I.

The CSA places the most highly restricted controlled substances in Schedule I. MDMA, scientifically known as 3,4-methylenedioxymethamphetamine and colloquially known as ecstasy, among other names, was not among the drugs originally added to Schedule I by Congress. The DEA designated MDMA as a Schedule I “hallucinogenic substance” in the 1980s. 21 C.F.R. § 1308.11(d)(11). Texas places MDMA in Penalty Group 2. Tex. Health & Safety Code § 481.103(a)(1).

The CSA’s criteria for inclusion in Schedule I are “high potential for abuse,” a lack of “currently accepted medical use,” and “a lack of accepted safety for use…under medical supervision.” 8 U.S.C. § 812(b)(1). Other well-known Schedule I controlled substances include heroin, lysergic acid diethylamide (LSD), and marijuana. Id. at §§ 812(c)(I)(b)(10), (c)(9), (c)(10). Many controlled substances commonly associated with the illegal drug trade are actually listed in Schedule II, including cocaine and methamphetamine. Id. at § 812(c)(II)(a)(4), 21 C.F.R. § 1308.12(d)(2).

FirearmThe legal status of marijuana at the state level is changing across the country, with more than half of all U.S. states now allowing the possession and use of marijuana to some extent. Federal law, however, still considers marijuana to have no medical use and therefore no acceptable reason for possession, cultivation, or sale. The disparity between federal law and many state laws has produced numerous unusual and unfortunate results. A ruling by the Ninth Circuit Court of Appeals from last year, while not binding on Texas, ought to be concerning to many Texas drug crime defendants, since the court held that federal law may bar lawful medical marijuana users from purchasing firearms. Wilson v. Lynch, 835 F. 3d 1083 (9th Cir. 2016).

Marijuana is a Schedule I controlled substance under federal law. 21 U.S.C. § 812(c)(I)(c)(10). Texas enacted a medical marijuana law in 2015 that allows the use of “low-THC cannabis,” with a prescription, to treat “intractable epilepsy.” See Tex. Occ. Code § 169.001 et seq., Tex. Health & Safety Code § 487.001 et seq. This is one of the most restrictive medical marijuana laws in the country, but it is still far less restrictive than federal law. The Wilson case involves Nevada law, which exempts individuals from prosecution for marijuana possession if they have a valid state registration card. See Nev. Rev. Stat. § 453A.010 et seq.

Federal law makes it a crime for certain individuals to possess firearms in a manner that affects interstate commerce, which has often been interpreted as prohibiting the sale of a firearm to someone covered by the statute. This includes “unlawful user[s] of…any controlled substance.” 18 U.S.C. § 922(g)(3), 21 U.S.C. § 802(6). The law further states that it is a crime for someone to sell a firearm to someone they know or have “reasonable cause to believe” meets this criterion. 18 U.S.C. § 922(d)(3).