September 2013

Below are some case summaries from recent 5th Circuit (Federal) opinions.  Enjoy.

United States v. Abdo, 2013 U.S. App. LEXIS 17251 (5th Cir. Tex. Aug. 19, 2013)

After receiving information from employees at a gun store and an army/navy surplus store, police officers believed Appellant planned to detonate a bomb and shoot service members stationed at Fort Hood, Texas.  When the officers encountered Appellant they drew their firearms, separated Appellant from the backpack he was carrying, handcuffed him and then placed him in the back of a police car.  Appellant admitted to the officers that he planned to attack soldiers at Fort Hood.  Appellant was then formally arrested and transported to the jail.

Appellant argued the district court should have suppressed evidence found at the time of his arrest and statements he made to the police.  Appellant claimed his detention at gunpoint and placement in a police car in handcuffs was a full arrest rather than a Terry stop, which was not supported by probable cause. The court disagreed.

Pointing a firearm and handcuffing a suspect does not automatically convert a Terry stop into an arrest.  Here, when the officers encountered Abdo, they knew he had purchased shotgun shells, an extended magazine for a handgun and a large amount of gunpowder in a manner that was not consistent with its normal use.  The officers also knew Appellant purchased an army uniform and asked for the kind of patches used at Fort Hood.

In addition, Appellant was carrying a large, overstuffed backpack on a very hot day and one of the officers had experience with terrorists using similar tactics of concealing explosives in backpacks and obtaining fake uniforms to facilitate an attack.  Under these circumstances, the officers acted reasonably in drawing their firearms and handcuffing Appellant while they effected a valid Terry stop, which was supported by reasonable suspicion. 

United States v. Garza, 2013 U.S. App. LEXIS 17515 (5th Cir. Tex. Aug. 21, 2013)

While on roving patrol, a Border Patrol agent received a radio broadcast to be on the lookout (BOLO) for a suspicious looking older model pickup truck carrying plywood in the bed, parked at a gas station at the corner of FM 650 and Highway 83 near Fronton, Texas.  When the agent arrived at the gas station, he saw a pickup truck matching the BOLO description and got out of his vehicle to talk to the driver, later identified as Appellant.  As the agent approached, Appellant acted nervously, moving fast to replace the gas cap, tensing up and shaking while doing so and then quickly entered the pickup truck. Appellant attempted to drive away, but stopped when the agent activated the lights of his patrol car.

Appellant gave the agent consent to search the pickup truck and the agent found several people concealed underneath the plywood in the back of the truck who admitted they were in the United States unlawfully.  The agent arrested Appellant.

Based on the totality of the circumstances, the court held the agent had reasonable suspicion to stop of Appellant's truck. First, FM 650 is a well-known smuggling road for narcotics and aliens because it is the only route in an out of Fronton, as this court has noted in the past.  Second, the agent had patrolled the border area regularly for over two and a half years and had investigated tips and made arrests in that same area for narcotics violations and alien smuggling.  Third, the agent encountered Appellant's truck five miles from the border between the United States and Mexico, which supported the reasonable belief the vehicle had recently crossed the border. Fourth, upon arriving at the gas station, the agent knew Appellant's vehicle did not belong to a Fronton resident and Appellant's nervous, erratic behavior and unprovoked flight supported a finding of reasonable suspicion. Finally, based on his experience, the agent knew smugglers often used plywood to conceal contraband in their trucks.

United States v. North, 2013 U.S. App. LEXIS 17808 (5th Cir. Miss. Aug. 26, 2013)

As part of a drug trafficking investigation, federal agents obtained a wiretap order on Appellant's cell phone from a federal judge in the Southern District of Mississippi.  Information obtained from the interception of Appellant's cell phone on May 9 and 16, 2009, led to Appellant's arrest for possession of cocaine. Title III of the Omnibus Crime Control and Safe Streets Act of 1986 authorizes the use of wiretap surveillance in criminal investigations.  Under Title III, a federal judge may enter an order authorizing the interception of cell phone communications within the territorial jurisdiction of the court in which the judge is sitting.  The Fifth Circuit Court of Appeals has held the "interception" includes both the location of a tapped telephone and the original listening post, and that a judge in either jurisdiction has authority under Title III to issue wiretap orders.

Appellant argued the district court in Mississippi lacked territorial jurisdiction to authorize the interception of the cell phone call on May 9, 2009, because when the agents intercepted the call his phone was located in Texas and the government's listening post was located in Louisiana.  The court agreed.

The district court located in the Southern District of Mississippi lacked the authority to permit interception of cell phone calls made from Texas at a listening post in Louisiana. In addition, the court held suppression of the information obtained from the May 9, 2009, wiretap was warranted. Appellant further argued the agents failed to follow the minimization protocols during interception of the May 16, 2009, phone call between Appellant and a female friend who was not under investigation.  Appellant claimed the agents conducted uninterrupted monitoring of a one-hour telephone conversation that had no connection to the drug smuggling investigation.

The court agreed and suppressed the evidence obtained from the interception of the phone conversation.  The agents were authorized to spot-monitor Appellant's cell phone conversations for no more than two minutes at a time.  However, the agents were authorized to continue monitoring if the conversation related to the drug smuggling investigation.  The court found the agents did not stop listening when it was made clear the conversation was not criminal in nature and they did not conduct subsequent spot checks by checking on the conversation to determine if it had turned to criminal matters.  Rather, the agents listened to the conversation for several minutes before dropping out for less than one minute at a time before resuming their near continuous listening.  Under these circumstances, the court held it was not objectively reasonable for the agents to listen for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes.

Below is a summary of the most recent Texas legislative updates 2013 as they relates to Criminal Law:

- In an attempt to reduce wrongful convictions in Texas, Senate Bill 1611 requires prosecutors to open their files to defendants and keep records of evidence they disclose. While the United States Supreme Court has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” Senate Bill 1611 requires disclosure of not only all police reports and witness statements, but also any other evidence that is material to any matter regardless of whether such evidence is “material to guilt or punishment."

- Senate Bill 344 allows courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. During an appeals process, Senate Bill 344 authorizes courts to grant relief on applications for writs of habeas corpus if there is currently available relevant scientific evidence that was not available at the time of conviction. The current relevant scientific evidence is only admissible if the evidence was not ascertainable through reasonable diligence at the time of trial.

- Senate Bill 1238 authorizes the Texas Forensic Science Commission to investigate unaccredited forensic disciplines such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

- House Bill 1847 requires prosecutors to complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

- Under Senate Bill 825, an exoneree is permitted to file a grievance up to four years following release from prison against a prosecutor alleged to have violated the ethics rule regarding the duty to disclose. This bill further prohibits a private reprimand for such a violation.

- In an effort to reduce the possibility of a false confession being admitted at trial by a person who does not speak or understand English, House Bill 2090 requires that a written statement by an accused be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding.

- Upon a second conviction for a “sexually violent offense” against a child under the age of 14, House Bill 1302 requires an automatic life sentence in prison without parole. Furthermore, House Bill 1302 specifically prohibits registered sex offenders from working at amusement parks or seeking employment as cab, bus, or limousine drivers.

- Under Senate Bill 124, the offense of Tampering With A Governmental Record is enhanced from a Class A misdemeanor to a 3rd Degree Felony if the governmental record was a public school record, report, or state-mandated assessment instrument. If the actor’s intent was to defraud or harm another, the offense is enhanced instead to a 2nd Degree Felony.

- In an effort to address human trafficking, House Bill 8 enhances all Prostitution offenses from a Class B misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the actor knew the age of the person solicited at the time of the offense. House Bill 8 also significantly alters the definition of the crime of Possession of Child Pornography. Accordingly, a person commits the crime of Possession of Child Pornography if they knowingly or intentionally “access with the intent to view” child pornography.

- If the underlying official proceeding in a criminal case involves family violence, Senate Bill 1360 enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in the criminal case. Senate Bill 1360 also provides a statutory forfeiture-by-wrongdoing provision, which specifies that a party to any criminal case, who causes a witness to be unavailable for trial through his wrongful acts, forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

- Senate Bill 275 enhances the penalty for the offense of leaving the scene of an accident resulting in the death of a person from a 3rd Degree Felony to a 2nd Degree Felony. - Upon conviction for a 1st Degree Felony Engaging in Organized Crime offense, Senate Bill 549 enhances the minimum penalty from five to fifteen years in prison. In addition, there is an automatic life sentence without parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 or older and the victim was either younger than six; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

- House Bill 2539 places a duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography. It is a Class B misdemeanor offense if the computer technician fails to make such report.

- Senate Bill 12 suspends evidentiary Rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of the trial regarding a separate enumerated sex offense that the defendant has committed. While evidentiary Rules 404 and 405 prohibit the use of evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait, Senate Bill 12 allows such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Senate Bill 12 further requires the trial judge to make a determination that the defendant committed the separate offense beyond a reasonable doubt prior to the introduction of this evidence and outside the presence of the jury.

- Senate Bill 2 was passed in an effort to address the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). This posed a unique issue for 17 year olds in Texas, who are treated as adults and not juveniles. Prior to the passage of Senate Bill 2, the only punishment available for an individual (17 and older) who was convicted of capital murder was either an automatic life sentence in prison without the possibility of parole or the death penalty. In an effort to address the unconstitutionality of this punishment on those younger than 18, Senate Bill 2 provides that an individual younger than 18 who is convicted of capital murder be punished with an automatic life sentence in prison with the possibility of parole.

- House Bill 434 expands the list of those who are authorized to draw blood from an individual during a DWI investigation. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. Now, the list of those authorized to draw blood also includes emergency medical technicians and paramedics. This bill allows for a person’s blood to be drawn without having to transport the individual to a separate facility, such as a hospital, during an intoxication-related investigation.

- House Bill 1862 removes switchblade knives from Texas’ prohibited-weapons statute. There are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

- Senate Bill 821 brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers or “hot drafts.”

If you have a question about how these changes in the law might affect your criminal case, please call us at (817) 993-9249.