Articles Posted in Arrest

The Fifth and Fourteenth Amendments to the U.S. Constitution state that the government may not “deprive any person of life, liberty, or property, without due process of law.” Federal law enforcement officials are bound by the Fifth Amendment’s Due Process Clause, while the Fourteenth Amendment extends it to state and local officials. The provision regarding “deprivation of liberty” protects the rights of individuals arrested and taken into custody, generally giving them the right to see a judge, request bail, and make other challenges to their detention. The Fifth Circuit Court of Appeals, whose jurisdiction includes Texas federal crimes, ruled last year that a county sheriff violated a woman’s Fourteenth Amendment due process rights by holding her for 96 days—more than three months—before allowing her to go before a judge. Jauch v. Choctaw Cty., et al., No. 16-60690, slip op. (5th Cir., Oct. 24, 2017). The case involved a civil lawsuit for deprivation of civil rights under 42 U.S.C. § 1983, but the holding affects future arrests in Texas and other Fifth Circuit states.

The courts have identified two main forms of due process. Procedural due process requires the government to notify a person of the charges against them, and to give them the opportunity to respond. Substantive due process is far more abstract and controversial. It protects various individual rights, including the rights identified in the First through Tenth and Fourteenth Amendments to the Constitution, the right to participate in “political processes,” and the rights of “discrete and insular minorities.” United States v. Carolene Products Co., 304 U.S. 144, 152 note 4 (1938). The U.S. Supreme Court has cited substantive due process in decisions finding that the government may not infringe upon certain rights not expressly identified in the Constitution, such as the right to privacy. See, e.g. Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Lawrence v. Texas, 539 U.S. 558 (2003).

According to the Fifth Circuit’s opinion in Jauch, a grand jury indicted the plaintiff for the sale of a Schedule IV controlled substance in January 2012. The indictment was based on “the word of a confidential informant.” Jauch, slip op. at 1. A capias warrant was issued on the same day in Choctaw County, Mississippi. The plaintiff was pulled over for a traffic infraction that April, and she was taken into custody because of the capias. She reportedly cleared the traffic offenses within days, but she was told by the sheriff that she could not see a judge “until August when the next term of the Circuit Court commenced.” Id. at 2. She remained in custody for 96 days. Several months later, the prosecutor moved to dismiss all of the charges, and no one has since disputed “that [the plaintiff] was innocent all along.” Id.

A criminal prosecution typically begins with an arrest, and whether or not a defendant must remain in jail while they await trial depends on whether a judge or magistrate sets bail. This happens at a bail hearing shortly after the arrest. The Eighth Amendment to the U.S. Constitution prohibits excessive bail, and the Sixth Amendment guarantees the right to counsel in criminal cases. The state must provide counsel to indigent defendants, but not every indigent defendant in Texas gets a lawyer at their bail hearing. In Houston, the state’s largest city and second-largest metropolitan area, judges and other county officials have been accused of improperly denying defendants’ right to counsel, resulting in massive numbers of people charged with minor, nonviolent offenses remaining incarcerated because they cannot afford bail.

According to a report in the Houston Chronicle from early 2016, bail hearings in Harris County consist of arrestees appearing before a magistrate, who is actually in a different room and communicates with the inmate via television monitors. A prosecutor attends the hearings, but defense attorneys are not provided for indigent defendants. The magistrate reportedly sets bail based on a set of guidelines that look at the charge and the individual’s criminal record, but not factors like the person’s health or family responsibilities. Inmates who cannot afford attorneys are left on their own to argue against a prosecutor for lower bail.

The Harris County Public Defender has harshly criticized this system, stating that “an adversarial system cannot function when only one side shows up.” Even prosecutors have reportedly agreed to seek reforms that give more—or some—consideration to the constitutional rights of indigent defendants during bail hearings. Many judges, however, have opposed reform efforts, with one district judge reportedly saying that providing public defenders at bail hearings is not necessary because the bail hearing is not a “critical stage” of the case. Considering that the bail hearing determines whether or not a person can return to their life while the case proceeds, before the state has met its burden of proving guilt beyond a reasonable doubt, it certainly seems like a critical stage for most people.

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The U.S. Border Patrol checkpoint at Sierra Blanca in Hudspeth County, Texas has operated in one form or another for over a century. Located on Interstate Highway 10, the checkpoint has gained a certain notoriety as the site of numerous celebrity “drug busts,” particularly musicians’ tour buses traveling east from Los Angeles. Celebrities arrested at Sierra Blanca in recent years include Willie Nelson, Snoop Dogg, and Fiona Apple. The checkpoint’s primary purpose is immigration enforcement, while drug interdiction depends largely on the cooperation of local law enforcement. In 2015, the Hudspeth County Sheriff announced that he would no longer take marijuana cases from Border Patrol.

The Supreme Court has held that permanent roadside checkpoints near the U.S.-Mexico border, for the specific purpose of immigration enforcement, do not violate the Fourth Amendment’s prohibition on warrantless searches and seizures. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Fourth Amendment does not, however, allow the use of roadblocks and drug-sniffing dogs to conduct warrantless searches for illegal narcotics, according to the Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

According the U.S. Customs and Border Protection (CBP), Sierra Blanca played a role in immigration enforcement long before the Border Patrol even existed. A single “mounted guard” was stationed at Sierra Blanca and “charged with the enforcement of immigration laws in the area.” The Border Patrol established a station at that location soon after Congress created the agency in 1924. The Supreme Court ruled it constitutional 52 years later.

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The U.S. criminal justice system generally divides criminal offenses into two categories:  felonies and misdemeanors. A felony conviction can result in a substantial fine and a lengthy jail or prison term. A misdemeanor conviction, while still creating a criminal record, usually results in a lesser penalty, and for this reason misdemeanors are often considered less “serious” than felonies. Misdemeanor convictions can have a profound impact on a person’s life, however. Recent research has suggested that a vast number of people have pleaded guilty to misdemeanor offenses they probably did not commit, simply to extricate themselves from the system as quickly as possible. The lower degree of scrutiny given to the misdemeanor system seems to have played a role in enabling this practice, which may extend throughout the entire country.Texas law designates individual offenses as misdemeanors or felonies, and it also provides definitions based on the offense’s potential punishment. An offense is a felony if it is “punishable by death or confinement in a penitentiary.” Tex. Pen. Code § 1.07(a)(23). A misdemeanor is “punishable by fine, by confinement in jail,” or both. Id. at § 1.07(a)(31). Misdemeanors are further divided into Classes A through C. Penalties range from a fine of up to $4,000 and/or a jail sentence of up to one year for Class A misdemeanors, to a fine of up to $500 with no jail time for Class C. See Tex. Pen. Code § 12.01 et seq. Federal law uses the same subdivisions for misdemeanors but prescribes different penalties. 18 U.S.C. §§ 3559(a)(6)-(8).

Most rights related to criminal proceedings guaranteed by the Bill of Rights are not dependent on the severity of the alleged offense. The Fourth Amendment protects against unreasonable searches and seizures, whether the offense under investigation is a felony or a misdemeanor. The Fifth Amendment privilege against self-incrimination applies in any court proceeding. A defendant always has the right to confront their accuser under the Sixth Amendment’s Confrontation Clause, and the U.S. Supreme Court has held that no one may be “denied the assistance of counsel as guaranteed by the Sixth Amendment.” Argersinger v. Hamlin, 407 U.S. 25, 38 (1972).

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Student loan debt is a tremendous burden all across the country, with outstanding student loans totaling about $1.2 trillion. One might not think, however, that defaulting on student loans would lead to criminal penalties, but recent news stories have suggested—not entirely accurately—that this is a possibility. The U.S. Marshals Service arrested a Houston man in February 2016, reportedly due to unpaid student loans, but the initial reporting did not tell the full story. While the reason for the arrest was not specifically student loan default, it is worth exploring how a debt collection matter ended up in federal court and led to an arrest.

Debt collection proceedings are civil in nature, not criminal. Federal courts presumably would not have jurisdiction over most debt collection matters. Even if the creditor and debtor were in different states, few debt collection claims (one hopes) would meet the $75,000 amount-in-controversy requirement for diversity jurisdiction. 28 U.S.C. § 1332. One way to ensure federal jurisdiction over a claim, however, is for the federal government to be a party.

The U.S. Department of Education (DOE) is the nation’s largest student loan creditor. It makes a substantial percentage of student loans directly to students, and it guarantees many private student loans. Federal courts automatically have jurisdiction over most lawsuits in which the United States is a plaintiff. 28 U.S.C. § 1345. The question remains of how a debtor, who would be the defendant in such a case, could get arrested.

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In May 2015, federal prosecutors announced the arrest of multiple officials of the International Federation of Association Football, commonly known by the acronym FIFA, and associated organizations. The charges in United States v. Webb, et al., No. 1:15-cr-00252, indictment (E.D.N.Y., May 20, 2015), include fraud, bribery, and conspiracy under the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1961 et seq. The arrests took place in Switzerland, and only two of the 14 defendants are U.S. citizens. The allegations in the case are truly international in scope (”FIFA” stands for “Fédération Internationale de Football Association”), so they raise questions about how federal prosecutors assert jurisdiction.FIFA organizes many of the world’s major international soccer tournaments, including the quadrennial World Cup tournament. It is headquartered in Zürich, Switzerland, and consists of 209 national soccer associations. Members are divided into six confederations, which may be further divided into regional groups. The United States Soccer Federation (USSF) is a FIFA member and is part of the Confederation of North, Central American, and Caribbean Association Football (CONCACAF), and the regional group, the North American Football Union (NAFU).

The allegations in the government’s 161-page indictment describe a range of allegedly corrupt acts, including alleged bribery during the selection of the site for the 2010 World Cup. FIFA’s executive committee was charged in 2004 with choosing among Egypt, Morocco, and South Africa to host the tournament. The indictment claims that one committee member, who is now a defendant, was offered $1 million by Morocco’s soccer committee and $10 million by the equivalent organization in South Africa. The committee member voted for South Africa, and the 2010 World Cup was held in Johannesburg.

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

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

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

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

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

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

An individual must petition for an expunction in the same court that heard the criminal case, or in the same jurisdiction as the arrest if no charges were filed. Tex. Code Crim. P. Art. 55.02. If granted, the expunction order directs court clerks, law enforcement agencies, and other offices to remove and destroy records related to the case. Any use, distribution, or publication of expunged records is prohibited, and the person “may deny the occurrence of the arrest.” Tex. Code Crim. P. Art. 55.03.
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The city of Baltimore, Maryland experienced a significant upheaval during the last week of April 2015, and continuing into early May, as residents protested mistreatment by the city’s police department. The incident that sparked the protests, the death of 25 year-old Freddie Gray in police custody, resulted in criminal charges against six police officers on May 1. During the week leading up to the announcement of the criminal charges, however, violence broke out on multiple occasions, resulting in property damage, clashes between protesters and police, and hundreds of arrests. Many arrestees found themselves subject to substantially large bail amounts, which raises the question of how much bail, given the Eighth Amendment’s prohibition on “excessive bail,” is too much. That question, unfortunately, has no simple answer.

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

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