Federal and state laws regarding both medical and recreational use are coming more and more into conflict. More than half of the states in the U.S., as well as the District of Columbia, allow the possession and use of marijuana for medical purposes. Federal law, on the other hand, classifies it alongside the most highly restricted controlled substances. The current U.S. Attorney General (AG) has repeatedly stated an intention to crack down on legal state medical marijuana programs. A group of medical marijuana patients, including a father and daughter who relocated from Texas to Colorado so that the daughter could obtain relief from intractable epilepsy, have filed suit against the AG and other federal officials and agencies. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, complaint (S.D.N.Y., Jul. 24, 2017). The plaintiffs allege that the federal government’s scheduling of marijuana as a controlled substance violates the Due Process Clause of the Fifth Amendment, unlawfully restricts some plaintiffs’ freedom of travel between states, and exceeds the authority conferred by the Commerce Clause.

Of the five schedules established by the Controlled Substances Act (CSA), Schedule I is the most restrictive. It is defined to include substances with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). Schedule I has included “marihuana” since its original enactment. Id. at § 812(c)(I)(c)(10). The Washington lawsuit alleges that “the Federal Government does not believe, and…never has believed” that marijuana meets these three criteria. Washington, complaint at 4.

Texas is among the states that have authorized medical marijuana to some extent, although in Texas’ case, the extent is not far at all. The Texas Compassionate-Use Act only applies to “low-THC cannabis.” This means cannabis products that contain, at most, “0.5 percent by weight of tetrahydrocannabinols” and at least “10 percent by weight of cannabidiol.” Tex. Occ. Code § 169.001(3). This essentially minimizes the active component of marijuana, THC. It may only be prescribed for the treatment of intractable epilepsy after a patient has tried two “maximally titrated antiepileptic drugs” without success. Id. at § 169.001(2).

A common criticism heard in recent years of federal law enforcement activities on the Texas-Mexico border involves the assertion that the border area, and a significant area extending inland, is a “Constitution-free zone.” While this phrasing involves quite a bit of hyperbole, federal law gives federal immigration authorities jurisdiction over an area extending up to 100 miles into U.S. territory. When at or near the border, the “border search exception” to the Fourth Amendment’s search warrant requirement allows certain types of warrantless searches and seizures. As Customs and Border Protection (CBP) and the Border Patrol conduct more enforcement activities, the extent to which the border search exception applies to activities further inside this 100-mile zone has come into question in Texas drug crime and other criminal cases.Under the border search exception, law enforcement officials may conduct limited searches and seizures, without a warrant or probable cause, at border crossings, airports, seaports, and checkpoints set up near the border like the Sierra Blanca checkpoint in West Texas. The exception derives from the right of a country to exercise control over its borders, but courts have generally held that the exception only allows brief questioning about immigration status or citizenship and matters relating to customs enforcement. Any additional search or seizure requires a reasonable suspicion of unlawful activity. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973).

The 100-mile zone in which immigration officials may operate is based on authority granted by the Immigration and Nationality Act (INA). It allows warrantless searches of vehicles “within a reasonable distance from any external boundary of the United States.” 8 U.S.C. § 1357(a)(3). “External boundaries” include the entire U.S.-Mexico and U.S.-Canada land borders, as well as all coastlines extending 12 nautical miles out to sea. 8 C.F.R. § 287.1(a)(1). “Reasonable distance” is defined as 100 air miles inland from an external boundary, although certain customs or immigration officials have discretion to increase or reduce this distance. Id. at §§ 287.1(a)(2), (b).

Law enforcement officials conducting searches at border crossings, checkpoints, seaports, and airports routinely expand the scope of their inquiries beyond basic immigration-related questions. Most border stops that receive attention from the news media involve drug-related seizures and arrests. The justification for this is based in part on the enforcement of customs laws, and also on limiting searches to situations in which basic questions about immigration and citizenship lead to a “reasonable suspicion” of other unlawful activity.

Law enforcement officials at Texas border checkpoints have some latitude to conduct warrantless searches because of the border search exception to the Fourth Amendment’s requirement of a warrant. Brief detentions of people at the border, at checkpoints near the border, and upon arrival at international airports have received judicial approval for many years. Air travelers have largely grown accustomed to submitting to electronic searches, including body scanners, but officials at border checkpoints have made increasing use of x-ray technology that can scan entire vehicles. This raises questions about Fourth Amendment rights, and also about the health effects of increasing exposure to x-ray radiation. The courts have not issued any definitive rulings on the issue in the Texas criminal context.

The border search exception derives from the sovereign right of a country to control who and what may enter its territory. It allows the brief examination travelers must undergo when arriving on an international flight or at a border crossing. In order to conduct further investigation, including actual searches, law enforcement must have a reasonable suspicion, a lesser requirement than probable cause. Under a similar exception to the Fourth Amendment’s warrant requirement, police can detain a person and conduct a search for “investigative” purposes. See Terry v. Ohio, 392 U.S. 1 (1968). The search or seizure must be based on a reasonable suspicion, and the state must “demonstrate that the seizure it seeks to justify…was sufficiently limited in scope and duration.” Florida v. Royer, 460 U.S., 491, 500 (1983).

The U.S. Supreme Court has addressed the use of x-rays in a few cases involving suspected drug smuggling. The court ruled that customs agents did not violate a woman’s Fourth Amendment rights when they detained her for 16 hours after her arrival at Los Angeles International Airport because they claimed she fit the profile of a “balloon swallower,” defined as “one who attempts to smuggle narcotics into this country hidden in her alimentary canal.” United States v. Montoya de Hernandez, 473 U.S. 531, 534 (1985). Officials informed her that “she would be detained until she agreed to an x ray or her bowels moved.” Id. at 535. They did not obtain a court order authorizing x-rays and a medical examination until the following day.

When the Fourth Amendment first became effective more than two centuries ago, “searches” generally involved physically rifling through a person’s possessions in their home, or checking for contraband or evidence on their actual person. Since then, technological changes have required courts to review new methods of conducting searches of people and their property, and courts have had to consider new situations in which law enforcement may conduct a search without a warrant. The past decade or two have brought significant changes to the way people exchange and retain information. Whereas police might once have searched for letters or other written materials, they now search for emails. The extent to which police can search the contents of electronic devices without a warrant remains a subject of dispute. A recently filed lawsuit challenges the applicability of the border search exception to warrantless searches of mobile phones and laptop computers at airports, which could have an impact on Texas criminal cases. Alasaad, et al. v. Duke, et al., No. 1:17-cv-11730, complaint (D. Mass., Sep. 13, 2017).

The “border search exception” allows law enforcement to search persons and property entering U.S. territory without a warrant for certain purposes, particularly customs and immigration enforcement. For most searches that go beyond a simple inquiry into a person’s citizenship or immigration status, or a cursory inspection for contraband, law enforcement officials must be able to show probable cause. See United States v. Montoya De Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S. 149 (2004). The border search exception only applies at or near an international border, or at an international airport or seaport. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Ortiz, 422 U.S. 891 (1975).

Electronic searches differ from physical searches in numerous ways, particularly in the way that electronic devices can provide access to far more information than a person could physically carry. A hard drive on a laptop, for example, can hold far more information than a person could carry in a briefcase. A laptop or smartphone with access to cloud storage could allow a person to access anything the device’s owner has stored across a wide array of computers and servers, potentially giving a law enforcement official access to a substantial portion of that person’s entire life. This was a significant part of the Supreme Court’s ruling prohibiting warrantless searches of cellphones incident to an arrest. Riley v. California, 573 U.S. __ (2014).

Among the many exceptions to the Fourth Amendment’s requirement that police obtain a warrant before conducting a search or seizing a person or their property, the “border search exception” is one of the oldest and most well-established in the law. Many exceptions to the warrant requirement are based on expediency. For example, the “exigent circumstances exception” applies when taking the time to obtain a warrant is likely to result in the loss or destruction of evidence. The right of a nation to police its own borders, on the other hand, is behind the border search exception. The exception is not without limits, of course, but the list of law enforcement activities allowed during border stops has grown over the years, and it includes drug interdiction activities that are not allowed further inside the nation’s borders. A wide variety of Texas drug seizures occur at border checkpoints like Sierra Blanca, and at other checkpoints along the U.S.-Mexico border.

As a general rule, law enforcement officials must be able to demonstrate probable cause to believe that a search will reveal contraband or evidence of criminal activity. In order to initiate a traffic stop, they must have a reasonable suspicion of some form of wrongdoing. The U.S. Supreme Court, however, has identified several situations in which law enforcement can set up checkpoints along public roadways—which result in the stopping of vehicles without probable cause or reasonable suspicion—without violating the Fourth Amendment. For example, courts have held that the public safety interest in preventing driving while intoxicated justifies checkpoints that involve a brief stop to assess whether drivers are too impaired to drive. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

Immigration officials are allowed to operate traffic checkpoints near international borders for the purpose of investigating travelers’ citizenship or immigration status. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). This includes sending vehicles to “secondary inspection” areas. The Supreme Court’s ruling specifically addressed the use of checkpoints at fixed locations, like Sierra Blanca in Texas. Immigration officials operating mobile checkpoints or conducting traffic stops must meet a greater standard of reasonable suspicion.

The “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.

A 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.DWI 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.

In order to qualify for a nondisclosure order, a petitioner must not have been convicted of DWI as a Class A misdemeanor, with a BAC of 0.15 percent or higher. The DWI case also must not have involved an accident with another person, which could involve a driver of another vehicle or a passenger in the same vehicle, even if nobody was injured. The petitioner must have no prior convictions, including probation or deferred adjudication, for anything other than minor traffic offenses.

A 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.

The 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.