Articles Posted in Texas Criminal Law Glossary

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.

marijuana dispensaryMore than half of the states in the U.S. now allow the use of medical marijuana to some extent. At the same time, federal law still treats marijuana as having “no currently accepted medical use in treatment in the United States.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). This has, obviously, created conflicts between federal and state law enforcement. Congress relieved this tension somewhat in 2014, when it passed legislation known as the Rohrbacher-Farr amendment as part of a spending bill. This amendment prohibits the U.S. Department of Justice (DOJ) from spending funds on law enforcement activities that interfere with lawful state medical marijuana systems, which range from the extensive in California to the restrictive in Texas. Texas marijuana lawyers are aware, however, that officials in the new White House administration have sought to use federal resources against state medical marijuana. So far, the Rohrbacher-Farr amendment remains in force.

California was the first state to allow the use of medical marijuana with a doctor’s prescription. Voters approved Proposition 215 in November 1996, also known as the “Compassionate Use Act.” Cal. Health and Safety Code § 11362.5. Twenty years later, in November 2016, voters in that state approved Proposition 64, which authorized the sale, purchase, and possession of limited amounts of marijuana for recreational use. Id. at § 11362.1. Most states have not gone this far, but states that allow medical marijuana in some form outnumber those that do not. Texas is among the states that allow medical marijuana use, although it is strictly limited to “low-THC cannabis” to treat “intractable epilepsy.” Tex. Health & Safety Code Ch. 487, Tex. Occ. Code Ch. 169.

The U.S. Supreme Court has rejected at least two challenges to the applicability of federal marijuana laws over state medical marijuana laws. The court rejected a common-law medical necessity defense in U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). Justice Thomas, writing for the court, noted that federal criminal law generally does not recognize common-law defenses unless Congress specifically includes them in a statute. He concluded that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act.” Id. at 491. The court held that the Commerce Clause of the U.S. Constitution allows a federal prohibition of marijuana production, distribution, and possession, regardless of state medical marijuana laws, in Gonzales v. Raich, 545 U.S. 1 (2005).

amusement parkProsecutors are obligated to turn over evidence that could potentially exonerate a defendant in a criminal case. This is known as the Brady rule, after the Supreme Court’s ruling in Brady v. Maryland, 373 U.S. 83 (1963). A federal appellate court recently ruled on a defendant’s claim that the prosecution violated his rights by failing to disclose information about criminal charges against two federal agents for conduct during the investigation of the defendant. The court was harshly critical of the two agents, who each received lengthy prison sentences, but it held that their criminal activity did not affect the reliability of the government’s case against the defendant. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

The Brady rule arose from a murder prosecution against two defendants. The named defendant, Brady, maintained that the other defendant committed the murder. The prosecution withheld a statement by the other defendant confessing to committing the murder alone. Without that evidence, Brady was convicted. The Supreme Court held that the prosecutors had violated Brady’s rights under the Due Process Clause of the Fourteenth Amendment. It is now common for defendants to request all “Brady evidence” from prosecutors during criminal cases.

The defendant in Ulbricht was convicted of multiple counts in connection with his operation of an online marketplace known as “Silk Road,” where people could anonymously exchange contraband, such as drugs and false identification documents, using the virtual currency known as Bitcoin. As part of the investigation into Silk Road, law enforcement agents would obtain the cooperation of low-level administrators and then pose as them using their online Silk Road accounts. A Secret Service agent and a Drug Enforcement Administration (DEA) agent were eventually charged with using this access to the Silk Road system to steal millions of dollars worth of Bitcoins.

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Dark CobwebThe criminal justice system must constantly adapt to changes brought by the increased use of the internet. Legal doctrines that once only applied to physical searches of people’s homes must now regulate “virtual” searches. Several years ago, federal prosecutors charged an individual with multiple offenses arising from his alleged administration of an online marketplace for illegal drugs and other contraband. It was reportedly the first prosecution involving the drug trade on the so-called “dark net.” A jury convicted the defendant on all seven counts in the government’s indictment, which included drug-related offenses, racketeering, and computer fraud. A judge sentenced him to life imprisonment. In May 2017, a federal appellate court denied his appeal, in which he argued in part that his Fourth Amendment rights had been violated. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

Federal law allows law enforcement to monitor electronic communications under strict limitations. Two types of surveillance allowed by federal law are known as “pen registers” and “trap and trace devices.” A pen register “records or decodes dialing, routing, addressing, or signaling information transmitted by” a telephone or other device. 18 U.S.C. § 3127(3). A trap and trace device “captures the incoming electronic or other impulses,” allowing law enforcement “to identify the source of a wire or electronic communication.” Id. at § 3127(4). Neither device may capture or record “the contents of any communication.” Id. They provide law enforcement with a record that shows the source, destination, and duration of phone calls and other communications.

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Federal Prisons sealOnce a person has been convicted of a criminal offense and sentenced to a term of incarceration, they have numerous possible legal avenues to avoid serving the entire length of the sentence. The most common methods, aside from appeals and habeas corpus petitions, are parole and other forms of early release. Clemency, which occurs when the president or governor either commutes the sentence or pardons the offense, is a far less common outcome, but it has many interesting legal ramifications. In the last few months of his second term in office, President Obama commuted the sentences of several hundred nonviolent drug offenders. While this resulted in many early releases, at least one person has remained in prison because of a conflict between federal and state jurisdiction.

Clemency can take two main forms. A “pardon” essentially absolves a person of guilt for a particular offense, or in connection with a particular act or incident. If no prosecution has occurred, a pardon prevents it from occurring at any point in the future. If a prosecution is already underway, or a person has already been convicted, a pardon either halts the prosecution or wipes out the conviction. A “commutation” merely shortens a person’s term of incarceration without wiping out the conviction.

The power to grant clemency in federal criminal cases is vested in the President of the United States. This power only extends to criminal cases under the jurisdiction of the federal court system. State governors have sole authority over clemency in state criminal cases. In cases that involve both federal and state charges, this could mean that clemency by one executive, such as the President, does not resolve the entire case. Intersections between state and federal law are particularly likely in drug-related criminal cases, since both federal and state law enforcement take an active interest in enforcing drug laws.

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GPS Satellite NASAOf the thousands of criminal cases brought by federal, state, county, and local prosecutors around the country each year, very few result in an actual bench or jury trial. Many or most cases end with a plea bargain of some sort. Modern technology has allowed law enforcement to develop electronic monitoring systems as an alternative to incarceration. These systems are now widely used by criminal courts, juvenile courts, and probation and parole officers. Electronic monitoring devices allow officials to monitor individuals’ movements and locations. In some cases, the use of these systems raises new civil rights questions. Technological and administrative shortcomings can also contribute to situations in which the electronic monitoring itself prevents a person from fulfilling other obligations in a criminal case.

Electronic monitoring can take several forms. The Pretrial Services Division in Travis County, Texas describes two systems that it may use. “Radio Frequency Electronic Monitoring” involves the use of a device—commonly worn as an ankle bracelet—that transmits a signal if it is carried outside a designated area. This type of device is used for house arrest and other situations in which an individual must remain at home at designated times. “Global Positioning System Electronic Monitoring” allows officials to determine an individual’s location and track their movements in order to monitor compliance with court requirements.

Several provisions of Texas law allow for electronic monitoring. In criminal cases, courts can require the use of electronic monitoring to enforce a sentence of house arrest in lieu of a jail sentence. Tex. Code Crim. P. Art. 42.035. A court may require electronic monitoring as a condition of release from jail on a personal bond. Id. at Art. 17.43. Electronic monitoring may also be used as an alternative to incarceration in juvenile cases. A court can order electronic monitoring as part of the civil commitment system for certain convicted sex offenders. Tex. Health & Safety Code § 841.081 et seq.

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Halfway HouseA criminal conviction can result in a wide range of penalties, depending on an even wider range of factors that judges and juries must consider. Most cases result in some form of probation, or time served if the defendant remained in custody during the case. A defendant who is sentenced to a jail or prison term may not serve the entire sentence. Parole involves early release, followed by a period of supervision that is similar to probation. Some inmates may be eligible for release to a facility located in the community, commonly known as a “halfway house,” whose purpose is to assist with the adjustment to life outside prison. A recent investigative report on President Obama’s pardons and commutations showed how these facilities can, unfortunately, end up looking more like punishment instead of rehabilitation.

The Bureau of Prisons (BOP) takes custody of people convicted of federal criminal offenses. It is authorized to incarcerate inmates in any facility “that meets minimum standards of health and habitability.” 18 U.S.C. § 3621(b). At the end of their sentences, federal law directs the BOP to place prisoners in facilities “that will afford [them] a reasonable opportunity to adjust to and prepare for [their] reentry…into the community” for up to 12 months. Id. at § 3624(c). It refers to these facilities as residential reentry centers (RRCs)—halfway houses by another name.

Texas has similar procedures for halfway houses. The Pardons and Paroles Division (PPD) is authorized to take custody of an inmate within 12 months of their “presumptive parole date or mandatory supervision release date” and to place them in a “community residential facility” for the remainder of their sentence. Tex. Gov. Code § 499.002(a). The Texas Community Supervision and Corrections Department (CSCD) also has the authority to transfer “suitable low-risk inmates” and those whom it finds “would benefit from a smoother transition from incarceration to supervised release” to halfway houses. Id. at § 508.118(a).

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deleter folderCriminal records can cause problems for a person long after their case has ended and they have paid their debt to society. Background searches are now a common feature in employment, housing, and other important areas of society. Under certain circumstances, it is possible to remove information about a criminal case from the public record with an expunction or seal information from public view with an order of nondisclosure. These types of relief are usually only available in cases that ended in an acquittal, an executive pardon, or the successful completion of a deferred prosecution plan. Some people are now attempting to expunge records of convictions in cases in which the U.S. Supreme Court has ruled the underlying statute unconstitutional. This does not fit neatly into the letter of most expunction laws, but it seems consistent with those laws’ spirit.

An expunction, also known as expungement, removes information about a case from court records and law enforcement files, including the actual destruction of the physical file. This includes records relating to a person’s arrest, detention, and charge or charges. An order of nondisclosure prohibits public officials from releasing information about a criminal case. Texas allows expunction of records in cases in which a trial ended in an acquittal, a pardon was issued after a conviction, or any type of clemency was granted based on “actual innocence.” Tex. Code Crim. P. Art. 55.01(a). For cases that never proceeded to trial, Texas allows expunctions when the charges were dismissed, no community supervision was ordered, and a sufficient period of time has passed. Major felony offenses are generally not eligible for expunction or nondisclosure.

Up until 2003, 14 states in the U.S., including Texas, had criminal statutes prohibiting “homosexual conduct,” also known as “sodomy laws.” Texas made it a Class C misdemeanor to “engage[] in deviate sexual intercourse” with a member of the same sex. Tex. Pen. Code § 21.06. The U.S. Supreme Court ruled that this statute violated substantive due process rights under the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558 (2003). The ruling overturned a prior ruling affirming a similar law in Georgia, Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence ruling effectively invalidated these laws in all 14 states. As of 2014, however, the laws remained on the books in 12 of these states, including Texas.

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Border RegionThe U.S. Supreme Court has identified numerous exceptions to the Fourth Amendment’s requirement that law enforcement officers obtain a warrant before conducting a search of, or seizing, a person or their property. The “border search exception” is of particular concern in west Texas, but it affects people all over the country’s border and coastal regions. Federal law gives immigration and border patrol agents the authority to search people and their property near U.S. borders for the purpose of enforcing federal immigration and criminal laws. The border region, as defined by immigration authorities, is bigger than one might think, extending 100 miles inward from the nation’s borders and coastal areas.

U.S. Customs and Border Protection (CBP) operates stations throughout the border region, such as the Sierra Blanca Border Patrol station in Hudspeth County, Texas. These facilities are intended to intercept people violating immigration law, and they also serve other law enforcement purposes. Agents have wide latitude under federal law to conduct warrantless searches “within a reasonable distance from any external boundary of the United States,” 8 U.S.C. § 1357(a)(3), and to make arrests for suspected federal crimes. Federal immigration authorities have interpreted “reasonable distance” to mean “within 100 air miles” since the 1950s. 8 C.F.R. § 287.1(a)(2), 22 Fed. Reg. 9808 (Dec. 6, 1957).

Permanent highway checkpoints, intended to stop vehicles and question drivers and passengers, do not inherently violate the Fourth Amendment, according to the U.S. Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Border patrol agents are permitted to detain a person without a warrant if they have reasonable suspicion of an offense such as drug smuggling, United States v. Montoya de Hernandez, 473 U.S. 531 (1985); and to conduct thorough vehicle searches to look for drugs and other contraband, United States v. Flores-Montano, 541 U.S. 149 (2004).

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