May 2011

As I wait on more slip opinions from the Court of Criminal Appeals, I’ve been randomly sifting through Courts of Appeals opinions. Today, the 7th District Court of Appeals (Amarillo) released a rather concise opinion in an aggravated sexual assault case regarding a "custodial interrogation." It’s worth an equally concise post.

In McGee v. State, appellant complained, inter alia, that his confession should have been suppressed because he was not given Miranda warning prior to issuing his confession to the police. Unconvinced, the Court of Appeals noted that appellant signed a written document containing Miranda warnings before he began speaking with police officers. The Court went on to state that “even if the warnings afforded appellant were somehow deficient, the record contained sufficient factual basis upon which the trial court could have reasonably found that appellant was not in custody at the time.”

Here are the facts to the Court highlighted to demonstrate that appellant was not “in custody” when he gave his confession:

1) Appellant transported himself to the police station to undergo a polygraph examination and questioning;
2) Questioning occurred in a rather large 15’ by 15’ room;
3) He was never told he was under arrest;
4) He was told he was free to go at any time;
5) No one threatened him;
6) No one restrained him;
7) Those asking the questions and administering the polygraph would have stopped if appellant indicated that he wanted to leave;
8) Appellant was at the station for approximately 2.5 hours before confessing;
9) He had no marks on him to indicate that he underwent any kind of physical abuse;
10) He not only was asked if he wanted to take a break or use the bathroom but also was told that he did not have to be there before the examination began;
11) He left that station after the interview; and
12) Nothing indicates that appellant ever attempted to leave, stop the questioning, take a break, or the like.

It seems to me like the Court if stretching a bit with some of those justifications. With an apparent affinity toward list-making, the Court went on to outline scenarios that would lead them to believe a person was in “custody” and therefore the subject of a vlid "custodial interrogation:"

1) If appellant was physically deprived of his freedom in any significant way;
2) If someone told him he could not leave;
3) If the officers created an environment that would lead a reasonable person to believe his freedom of movement was significantly restricted; or
4) If there existed probable cause to arrest appellant and the officers told him he was not free to leave.

The Court explained, “[h]ad any of those four scenarios arose then appellant would have been in custody, but the evidence before us allowed the trial court of legitimately conclude otherwise.”

Seems simple enough. The problem is with the trial court interpretation of those four maxims.

In April of 2011, the United States Supreme Court issued an opinion in Sossamon v. Texas addressing whether the State of Texas had waived its sovereign immunity to private suits for money damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). While the case is primarily constitutional in nature, it did stem from a claim that a Texas inmate made against the State of Texas for allegedly violating his protections of religious exercise.

Specifically, the inmate was challenging two prison policies:

1. a policy preventing inmates from attending religious services while on cell restriction for disciplinary infractions; and
2. a policy barring use of the prison chapel for religious worship.

The court did not address the issue of how and to what extent the prisoner’s rights to religious exercise were violated. Instead, the Court addressed the issue of sovereign immunity and whether the State of Texas could even be sued in the first place.

The Petitioner argued that because the State had received federal funding it had waived it’s right for sovereign immunity and was liable for damages base on RLUIPA.

Ultimately, the Supreme Court concluded that in accepting federal funding, a State does not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. The Court acknowledged that a State may choose to waive its immunity, but that consent must be “unequivocally expressed” in the relevant statute’s text. Clark v. Barnard, 109 U.S. 436. The Court also noted that a waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Pennhurst State School and Hospital v. Holderman, 465 U.S. 89.

The Court upheld the Fifth Circuits ruling that barred the Petitioner’s claims for monetary relief based on sovereign immunity.

A releasee (parolee) is entitled to a prompt preliminary hearing once the revocation process has been initiated by the execution of a revocation warrant. Morrissey v. Brewer, 408 U.S. 471 (1972). Due process, according to the Supreme Court of the United States in Morrissey v. Brewer, requires that a preliminary hearing be held “as promptly as convenient” after a parolee has been arrested to “determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”

In Ex Parte Bohannan, the applicant (parolee) filed an application for writ of mandamus arguing that the Texas Department of Criminal Justice (TDCJ) violated his constitutional rights by failing to hold a preliminary hearing when the State sought to revoke his parole.

While on parole for aggravated rape, applicant was arrested for monitoring violations. However, TDCJ did not hold the required preliminary hearing because it has a standing policy that it does not conduct preliminary hearings while there is a criminal case pending. Once applicant filed for habeas corpus, however, the TDCJ conducted the preliminary hearing. Even though he ultimately received the hearing that he sought, applicant nonetheless requested that the CCA intervene, arguing that his situation is not unique in Texas and that this problem is “capable of repetition, yet evading review” (an exception to the mootness doctrine).

TDCJ, in its brief to the CCA, stated its belief that it need not conduct such a hearing while a criminal case is pending because the court system conducts similar probable cause hearings and a preliminary hearing would only be redundant. In essence, TDCJ was saying they there is no need for them to follow the law.

Ultimately, the CCA held that the case was non-justiciable (moot), so it did not consider the substance of applicant’s claim. However, Judge Keasler, joined by Judges Price, Hervey and Cochran, penned a scathing concurrance wherein it warns the TDCJ that if it continues its policy of not granting preliminary hearings in parole revocation cases, “it does so at its own peril.”

The Supreme Court has not made any exceptions to [the preliminary hearing requirement]. Thus, contrary to the assertion of the Texas Department of Criminal Justice (TDCJ), as amicus curiae, such a hearing is not duplicative of any other prior probable cause determination. The failure to comply with Morrissey violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law. Indeed, TDCJ has admitted as much: “there is no reasonable expectation that the TDCJ will discontinue its policy of not providing a preliminary hearing when a releasee is being held on pending criminal charges . . . .” This is patently unacceptable. And if it “reasonably expects” to continue this policy, it does so at its peril.

The answer for future parolees: MANDAMUS.

Because a claim challenging the Board’s failure to provide a preliminary revocation hearing is non-justiciable, Article 11.07 does not provide an adequate remedy at law for a release to compel the Board to comply with its ministerial duty. But mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed.

Court Holds that Sex Offender Conditions Cannot be Added as a Condition of Parole for Cases That Do Not Involve a Sex Offense

Ex Parte Evans - The Texas Court of Criminal Appeals considered a case wherein sex-offender conditions were placed on a parolee for an offense other than a sex offense.

In October of 2001, Appellant pled guilty to two counts of reckless injury to a child (not a sexual offense). He was sentenced to ten years in prison on each count. On October 25, 2006, Appellant was released to parole in Lubbock, Texas. He then asked for his parole to be transferred to El Paso, Texas, where his children lived. Once he arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions.” He submitted a written response stating that he was unable to produce any documentation to show that the offense he had been convicted of was unrelated to anything sexual in nature other than the fact that the victim’s doctor had testified that the injuries were not sexual in nature.

Despite his dispute, his parole officer recommended that “Special Condition X” (the sex-offender program) be added as a condition of his parole.  From all accounts, immediately after the condition was imposed, Appellant went “downhill.”  He was not allowed to visit his children anymore.  Further, in October of 2008, Appellant’s parole officer and a handful of other officers searched the Appellant’s home. Inside, they found a cell phone on Appellant’s bed that had a picture of a nude woman on it. Several other pictures of nude women were found in his cell phone online photo album. Also, the officers found two pornographic DVD’s - all of which were unlawful for Appellant to possess while a registered sex offender.

Appellant’s parole was then revoked upon a motion by the State. At the hearing, Appellant argued that the conditions had been unconstitutionally imposed without due process and that the facts of his conviction did not justify such sex-offender conditions. His argument fell on deaf ears and he was returned to prison.

On a writ of habeas corpus, the trial judge found that Appellant had not been convicted of a sex offense, that there was no evidence of sexual abuse of his victims, and that he was not afforded due process before the imposition of the sex offender conditions. The trial judge relied on an opinion out of the 5th Circuit, Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009). That case had almost the exact same facts as Appellants case and the court in the Meza case found that due process had not been afforded in imposing sex-offender conditions as a condition of parole. Here, the CCA acknowledged the opinion but stated that the Meza opinion failed to clarify “exactly how much process is constitutionally due before sex-offender conditions may be imposed upon a parolee who has not been convicted of a sex offense.”

The CCA then cited the Fifth Circuit’s analysis of this issue in the 2004 case, Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) which ultimately held that “a parolee who has not been convicted of a sex offense must be afforded the following procedures before sex-offender conditions may be imposed on him:

(1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;

(2) disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;

(3) a hearing in which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;

(4) the right to confront and cross-examine witnesses, unless good cause is shown;

(5) an impartial decision maker;

(6) a written statement by the fact finder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.”

The Court held that because these procedures were not offered to Appellant, he was entitled to the relief he sought: immediate release on mandatory supervision without sex-offender conditions, and, if TDCJ sought to re-impose such conditions he was entitled to the protection of the Meza due-process procedures. The Texas Department of Criminal Justice did chime in with four arguments advocating for the actions of the parole officer but the court shot them all down (see the original opinion for more detail).

What’s the take-away? It’s pretty simple my opinion: Due process must be afforded to individuals on parole when the State attempts to add sex-offender conditions on a parolee who has not been convicted of a sexually related offense.

Just for good measure, here are some helpful links pertaining to Sex Offenders and Sex Related Crimes:

Council on Sex Offender Treatment Home Page

Sex Offender Laws, Legislation-Rules and Sex Offender Legislation-Laws

Warrantless Search of Cell Phone | Fort Worth Criminal Defense Attorneys

Can an arresting officer search a person’s text messages as a “search incident to arrest?” The U.S. Court of Appeals for the 5th Circuit said YES in U.S. v. Curtis, but caveats that the search in the case occurred prior to the Supreme Court holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).

United States v. Curtis - In July 2007, officers obtained an arrest warrant for Appellant after he made a false statement on a credit application he submitted to a car dealership. (Seriously?) When the officers arrested Appellant he was driving his vehicle and talking on his cell phone. After he pulled over, Appellant placed the cell phone on the car’s center console. An officer took the phone out of the car and began looking at the text messages on it. Later, while Appellant was being processed at the jail the officer resumed looking at the text messages on the cell phone.

The 5th Circuit held that the search of the cell phone was constitutional since it took place incident to a lawful arrest and it was within Appellant’s reaching distance when the officers arrested him. The court followed U.S. v. Finley, 477 F.3d 250 (5th Cir.), which held that the police could search the contents of an arrestee’s cell phone incident to a valid arrest when it is recovered from the area within an arrestee’s immediate control.

Appellant argued that the officer’s search of the cell phone was unlawful in light of the Supreme Court’s holding in Gant, decided in 2009, which held in part that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of arrest.”

The court refused to apply the rule announced by Gant to a search incident to arrest that occurred before Gant was decided. Additionally, the court stated that even if it had ruled the search of the cell phone was unlawful, it would have refused to suppress the text messages under the good-faith exception to the exclusionary rule. The court noted that the good-faith exception applies to searches that were legal at the time they were conducted, but later determined to be unconstitutional by a subsequent change in the law.

My question is: Why did the officer feel he needed to search Appellant’s text messages? I’m pretty sure the iPhone does not have an app that turns the phone into a dangerous weapon. There should be no reason that the officer needed to conduct such a warrantless search. Luckily, however, this holding is narrow in that it appears that it does not apply to searches conducted after the Supreme Court decision in Gant.

UPDATE: Warrantless searches of cell phones are now unreasonable.