May 2018

Collins v. Virginia - US Supreme Court Considers Whether Police May Search a Vehicle in a Driveway Without a Warrant

 

Collins v. Virginia (US Supreme Court 2018)

In Collins v. Virginia, police officers were looking for a motorcycle that they suspected was stolen. They tracked the motorcycle to a home where it appeared to be parked in the driveway and covered by a tarp. Officers walked up the driveway, removed the tarp, discovered the motorcycle and conducted a search of the license plates. The license plate search indicated that the motorcycle was indeed stolen. The officers then replaced the tarp over the motorcycle and waited in their car for the driver of the motorcycle. When Collins appeared, they arrested him.

Collins's Motion to Suppress the Warrantless Search

In the trial court, Collins made a motion to suppress evidence, claiming that the officers violated his 4th Amendment right when they entered the curtilage of his home and conducted a warrantless search of the driveway. The trial court denied the motion and Collins was convicted of Receipt of Stolen Property. The Virginia appellate court and State Supreme Court affirmed Collins' conviction, reasoning that the "automobile exception" to the warrant requirement applied to the search in this case.

What is the Automobile Exception to the Warrant Requirement?

Generally, the "automobile exception" to the 4th Amendment allows officers to search a vehicle without a warrant if they have probable cause. The rationale behind this exception is that automobiles should be treated differently than houses because of the "ready mobility" of the automobile. Virginia argued that the automobile exception should apply in this case, because the motorcycle was capable to being driven away from the home.

Supreme Court Overturns the Virginia Courts, Defining the "Curtilage" of the Home to Include the Driveway

The US Supreme Court, Justice Sotomayor writing for a nearly unanimous court, held that the officers violated Collins' 4th Amendment right to be free from unreasonable searches and seizures. The Court emphasized that the area of the driveway where the motorcycle was parked was a protected area of the home.

[T]he part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area "outside the front window," that enclosure constitutes "an area adjacent to the home and 'to which the activity of home life extends.' "

Justice Sotomayor further explained that:

Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the exception " from the justifications underlying' " it.

In holding that the search violated the 4th Amendment, the Court reversed the decision of the Virginia Supreme Court and remanded to case back to the state.

Takeaway

The curtilage of the home extends to the driveway and items that might be found therein. Of course, if the officers had been able to view the license plates from the street, without removing the tarp, things would likely be different. However, as it stands, the Supreme Court is unwilling to adopt any rule that would allow police to enter the curtilage of the home to conduct a warrantless search.

What is Transfer DNA and Why is it Important in Criminal Cases?

When a person thinks of DNA evidence, they typically think of blood, semen, or some sort of bodily fluid left at a crime scene that indicates a suspect in a crime. However, this is no longer the case. With the advances in technology, DNA can be detected from just sitting near another person. In a study done by Australian forensic scientist Roland van Oorschot, he found that in 50% of volunteers who sat at a table and shared a jug of juice they ended up with another’s DNA on their hands. The volunteers never touched one another and some of the DNA found was from individuals who were not even at the table. They found that DNA was much easier to transfer than anyone had previously thought.  This means that at any given crime scene, there could be hundreds of DNA profiles. The DNA found by investigators could be from an innocent person or the suspect. This is concerning because, while there is a way to discover whose DNA it is, there is not a way to discern how it got there. Who’s to say they won’t find yours?

The DNA Phantom Case From Germany

That is exactly what happened in the case of the Phantom of Heilbronn. In Germany, DNA from one woman was found at crimes scenes ranging from murders to thefts. This woman’s DNA was connected to 40 crimes extending as far back as 1993 and covering the countries of Germany, Austria, and France. However, the DNA that was found did not belong to the perpetrator, it belonged to a woman who made the cotton swabs used to collect DNA samples from the crime scene. Even though the cotton swabs went through the proper sterilization process, they still contained traceable amounts of DNA. The Phantom of Heilbronn is an example of how easily DNA can be innocently transferred to a crime scene.

How DNA Can Be Transferred Through Laundry in Child Sexual Assault Cases

When it comes to child sexual abuse cases, researchers have found that DNA can be transferred innocently by the laundry even after clothes are supposed to be “clean.” A Canadian study discovered that when undergarments are washed with sheets containing bodily fluids, the undergarment too will have DNA on them. The DNA from the sheets transfers to the undergarments in the washer and the washer itself. This is problematic because a person’s DNA can end up on every household member’s clothing in one wash. This DNA can later be collected during an investigation, but investigators might make the wrong assumption as to how it got there.

To help distinguish between innocent DNA transfer from laundering and DNA that was left during a crime, the researchers studied the location of the DNA on the items of clothing. In the process of this experiment, the findings strongly suggest that bodily fluids that were transferred during laundering were absorbed deeper into the fabric. Swab samples that yield significant quantities of bodily fluids are indicative of the fluid being deposited directly on the clothing as opposed to transfer during laundering. DNA that is transferred during the laundering process is both found in a different location and lesser in quantity than DNA deposited through abuse.

What Does This Mean for the Future of DNA Analysis?

The findings from this research are important for the future of DNA evidence, especially in the case of child sexual abuse cases. This research shows that DNA does not immediately indicate sexual abuse. This research emphasizes that the mere presence of DNA on a child’s undergarments does not confirm abuse. Investigators should gather all available evidence before they come to a conclusion.

Existence of a Single Prior Conviction for Misdemeanor DWI is a Punishment-Only Issue in a Case for DWI (Misdemeanor Repetition), says the CCA

Oliva v State (Tex. Crim. App. 2018)

It is well established in both Texas statutes and case law that the existence of two prior DWI misdemeanors will enhance the third DWI to a felony-level offense. See Texas Penal Code § 49.09(b); Ex Parte Benson, 459 S.W.3d 67, 75-76 (Tex. Crim. App. 2015). A variable “three strikes and you’re out” type of statute, the law was enacted as a legislative response to deter potential repeat offenders from creating dangerous and preventable hazards on Texas roads. In this statutory enhancement scenario, the third strike becomes the offense itself, thus, the third DWI offense is an element of the felony. As a result, the defendant is punished according to the felony sentencing guidelines.

But what happens when the defendant only has one strike—one prior misdemeanor DWI on his record? Would it make any difference if that DWI happened nearly a decade prior, on an otherwise clean driving and criminal record? Recently, the Court of Criminal Appeals sought to determine the legal significance of companion statute TPC § 49.09(a), whereby the defendant had only one prior misdemeanor DWI offense. TPC § 49.09(a) states that the “existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor.” The CCA had to decide whether having one single prior DWI constituted an element of the crime or whether the one single prior DWI was only relevant in the punishment phase.

Law Enforcement Responds to Phone Call Reporting a Mysterious Person

Early in the morning in May of 2015, two Houston-area police officers responded to a call from dispatch about a suspicious person. Tex. R. App. P. 47.2(b), accessed 24 May 2018 via https://law.justia.com/cases/texas/fourteenth-court-of-appeals/2017/14-15-01078-cr.html. Sitting slumped over in a parked car was Jose Oliva, illegally parked with the engine on, in a lane of moving traffic. Concerned for Oliva’s health and safety, law enforcement attempted to alert Oliva, but he remained unresponsive. Police opened the car door and Oliva fell out onto the curb. Once Oliva woke up, law enforcement administered a field sobriety test; Oliva failed and was arrested. Blood testing later confirmed that Oliva had a blood alcohol level equivalent to having just ingested nine alcoholic drinks within the hour. Oliva was charged with DWI “by information” which mentioned a previous DWI on Oliva’s record.

What is an Information?

In Texas, a person may be charged via an indictment or via an instrument called an information. Article 21.20 of the Texas Code of Criminal Procedure defines an "information" as a written statement filed and presented in behalf of the State by the district attorney, charging the defendant with an offense. Oliva’s information described the May of 2015 DWI arrest and it mentioned a prior misdemeanor-level DWI offense on his record.

Oliva Heads to Court

During the trial, Oliva’s prior DWI was never mentioned, even though it was present on the information before trial. The jury convicted Oliva of DWI. Finding that he also had a prior DWI as alleged on the information, Oliva’s conviction was then increased, or enhanced, to DWI 2nd, which carried a sentence of 180 days confinement. Oliva appealed to the Fourteenth Court of Appeals in Houston.

On appeal, the appellate court held that under the statute’s plain language meaning, one singular prior DWI conviction is an element of the offense of Class A misdemeanor DWI under section 49.09(a)—much like the “three strikes and you’re out” felony-enhancement statute of 49.09(b). The appeals court reasoned that a fact that elevates the degree of an offense is necessarily an element of the offense and that § 49.09 lacked the “shall be punished” language present in other statutes containing punishment-only enhancements.

The State of Texas petitioned the Court of Criminal Appeals to review this case once again, to determine whether the introduction of a defendant’s prior DWI is proper at the guilt-innocence phase of a criminal trial, or whether such a disclosure is only relevant under 49.09(b) during the punishment phase. Such distinction could have implications for bias, or taint, at trial, among other defense strategies. To recap, Texas Penal Code § 49.09(a) provides that the existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor.

The CCA Weighs In on Whether the Prior DWI is Actually an Element of DWI 2nd that Must Be Introduced to a Jury at Trial

Is the prior DWI conviction an element of the offense, or is the prior conviction a punishment-only issue? The Court of Criminal Appeals made a surprising conclusion, holding that the existence of a single prior conviction for misdemeanor DWI is a punishment-only issue. Broadly, the CCA reasoned that introducing the prior before the punishment phase

“would seem to benefit the State in most cases because it would enable the State to introduce evidence of the prior conviction at the guilt stage of trial instead of having to wait until the punishment stage.”

The CCA Analyzes the Statute

First, the CCA looked to the wording of the statute to find its “plain language” meaning. “In construing the meaning of, and interplay between, these statutes, we give effect to the plain meaning of the text, unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.” Here, the CCA found that the plain language meaning was ambiguous and could lead the interpreter to conclude mixed, confusing results.

Second, the CCA took a closer look at how the statute was labeled in the Code to see if the legislature labeled the statute as guilt-innocence phase element. Unfortunately, this was not the case here, and the CCA had to look to grammatical construction. Texas case law has informed Texas courts, generally, that the Penal Code’s most obvious and common method of prescribing elements of an offense is prefacing incriminatory facts with the language, “A person commits an offense if ______.” Ex parte Benson, 459 S.W.3d 67, 85 (Tex. Crim. App. 2015). Unfortunately, the DWI statutes were not written with clarity as to preface incriminatory facts—the prior DWIs—with language specifying that “an offense is committed if____.”

Third, the CCA reasoned that it would have to deep dive into existing case law to assist with determining the meaning of the statute. Looking to Calton v. State, the CCA suggested that “a statute could unambiguously prescribe an element of an offense by setting forth a fact that would increase the degree of the offense; a punishment enhancement “does not change the offense, or the degree of the offense of conviction, as there can be no enhancement until a person is first convicted of an offense of a certain degree.” 176 S.W.3d 231, 233-34 (Tex. Crim. App. 2005).

Next, looking to Ex parte Benson, another DWI case, the CCA held that “a prior conviction that merely enhances the offense level would not be an element of the offense.” Benson, 459 S.W.3d at 74-75. In conclusion, the CCA held that although the statutory language is ambiguous, various factors suggest that the legislature intended that § 49.09(a) prescribe a punishment-only issue.

It is important to note that Justices Keasler and Yeary filed a dissenting opinion about the CCA’s holding. In the dissent, the Justices aver that the CCA should adhere to the language of the case law in Calton, regardless of the wording of a particular statutory provision, so long as the provision is not explicitly labeled a punishment issue. Even though this case law is not supported by authority, the dissent claims that the interests of swift justice “would be better served by the wholesale adoption of this language…[as] such adoption would simplify our analysis by creating an easy, bright-line rule.” Further, the dissent also states that Calton’s language is consistent with the use of the phrase “degree of offense” in connection with the word “convicted” in the statute that prescribes the requisites of a criminal judgment, Article 42.01, so that the prior DWI conviction should be introduced at the guilty-innocence phase of a criminal trial.

Which is More Important, Swift Justice or a Fair Trial?

In sum, this ruling is a win for those who have made a couple of DWI mistakes, but are not repeat, habitual offenders. For defense attorneys, knowing exactly when evidence of a prior DWI can be admitted on the record during a criminal trial is paramount to developing a successful legal strategy. Should evidence of a prior DWI be introduced too early, the judge or jury may become biased, or tainted, against the facts and evidence in the case before them. If the evidence is introduced at the punishment phase, for the purposes sentencing enhancements only, the defendant may have more solid footing to defend against the DWI charge before the court.

As a Fort Worth personal injury attorney, I have participated in hundreds of mediations where I represented victims of car accidents, work place negligence, defective products, assault, electrocution, and other manner of claims involving injury or death. In my experience, mediation may be the most effective tool for allowing all parties to best understand all aspects and perspectives about their case—the good, bad, and ugly—and to make an informed decision about whether to settle their case or move forward toward trial.

What is Mediation?

Mediation is a guided negotiation facilitated by a neutral third party, the mediator. As defined by Texas Civil Practice and Remedies Code Section 154.023:

(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues for that of the parties.

Unlike a judge or an arbitrator, a mediator does not have the power to decide a case or to enter a judgment or award. Neither can a mediator force the parties to accept a settlement. Rather, the role of the mediator is to help open the lines of communication between the parties in a confidential setting.

What to Expect During a Personal Injury Mediation

Mediations frequently begin with what’s known as a “joint session” or “caucus.” The plaintiff, his or her lawyer, the defense lawyer, the insurance adjuster, and the mediator will gather in a conference room. When meeting the defendant’s representatives, I encourage my clients to shake hands and politely introduce themselves. Once the introductions have been made, the lawyers may put on brief presentations emphasizing what they feel is important about their respective cases. The parties do not put on evidence and the plaintiff will not be asked to testify. The parties will then break off into separate rooms with the defendant’s lawyer and adjuster in one room and the plaintiff and his or her attorney in another.

The mediator then spends time with each group getting to know the case and the parties involved. As a neutral third party with no stake in the outcome of the case, a mediator is in the unique position to offer a new perspective on the case. Good mediators will challenge the parties’ assertions and help them look at the case from different angles.

At some point during the process, the mediator will begin to carry demands and offers from one room to the other. The party to make the first “move” will depend on whether a demand or offer was previously extended. If the plaintiff made a demand to which the defendant never responded, the defendant should make the first move and vice-versa. Each party will respond with a counter-demand or offer of their own until the case either resolves or the parties reach an impasse.

Over the course of the mediation, the mediator will push both sides to consider potential weaknesses in their own cases while acknowledging the potential strengths of their opponents’. With each round of offers and demands, the gap between the parties will, ideally, begin to narrow until the parties are able to come together on a final number to settle the case.

What Happens if My Case Settles at Mediation?

If mediation is successful, the mediator will prepare an agreement for the participants to sign that generally sets forth the basic elements of the parties’ settlement agreement with the understanding that a more detailed and thorough agreement will be prepared by the lawyer for the defendant, subject to modifications made by the plaintiff’s lawyer. However, a mediation agreement is enforceable once signed, and either party to the agreement may require the other parties to be bound by its terms.

The mediation agreement will generally include a time frame for the defendant or its insurer to deliver checks to the plaintiff’s counsel for distribution. It is not uncommon, however, for this process to be delayed in order for the plaintiff’s lawyer to negotiate hospital liens, subrogation interests from health insurers, and outstanding medical bills.

What Happens if My Case Does Not Settle at Mediation?

When the parties are unable to reach an agreement at mediation, the mediator may make what is referred to as a “mediator’s proposal” in which the mediator proposes a settlement amount to each of the parties. The parties are instructed to confirm to the mediator by a certain date whether they accept or reject the proposal. The parties’ decisions to accept or reject are kept confidential and made known only to the mediator. Mediator’s proposals can be an effective tool when more time or settlement authority is needed to bring the case to a close.

Mediators will generally make a proposal only in cases where they feel there is at least some chance that both parties will accept. When the gap between the parties is too wide, a mediator’s proposal is unlikely to work and the parties are free to continue litigating the case or they may choose to continue negotiations with or without the assistance of the mediator. Depending on the case, the parties may choose re-mediate as the case gets closer to trial and fewer unanswered questions remain.

Even when a mediation fails to resolve the parties’ disputes, it has been my experience that almost all mediations are worthwhile experiences. The parties generally walk away from a failed mediation with a better understanding of the main issues in their case and are better able to focus their efforts going forward.

Technology has dramatically changed the landscape of criminal law procedure, and ultimately criminal convictions, in Texas. Updated DNA testing exonerates the wrongly-accused, while incriminating the guilty. Traffic cameras are commonplace on Main Street, clocking speeding motorists who are subject to fines and penalties—and bad feelings. Recently in Arkansas, recordings from Amazon’s Echo artificial intelligence device have been used by prosecutors as evidence in a murder trial. As digital evidence evolves rapidly, so must the evidentiary rules supporting admissibility. In this late-breaking case, the Texas Court of Criminal Appeals considers one man’s conviction for theft and burglary vis a vis the admissibility of “picture only” video footage.

State v. Fowler (Tex. Crim. App. 2018)

Fresh Tire Marks Lead to a Suspicious Dollar Store Receipt

Law enforcement was called to the scene of a burglary at a business in Royse City, Texas. Police discovered disarray; cut wires, mangled cables, and bolt cutters were seized as evidence, but no suspects were apprehended. One month later, police were called to investigate the same scene for another burglary. This time, ATV tracks led police to a nearby field where they found a receipt from the local Family Dollar store mere feet away from a stolen ATV. Even more curious were the items listed on the receipt, which included duct tape and utility knives. Police used the date, time stamp, and the address on the receipt to request video footage from inside the store. Employees at Family Dollar provided investigators with time and date-stamped footage that corresponded with the receipt found at the scene of the crime. Police recorded the incriminating footage on their body cameras, as recording from a VHS cassette proved time-consuming and clunky. Although the footage was non-audio “picture only,” it showed a suspect purchasing the items that were reflected on the receipt found at the crime scene. Further, the footage time and date stamps placed the individual inside of Family Dollar at a certain time, on a particular day.

Leveraging all of the information learned from the receipts, the fact that the ATV was stolen, and the video footage, law enforcement soon had a suspect—Jamel Fowler. Fowler was convicted of theft of property for stealing the ATV and was sentenced by a jury to two years imprisonment. Fowler appealed. On appeal, the court reversed the trial court’s conviction and sentencing, holding that “trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.” The State of Texas appealed to the Court of Criminal Appeals to determine whether prosecutors may prove authenticity of video footage without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device. In other words, is the video of a video at Family Dollar admissible as evidence against Fowler? In order to answer that question, the CCA looked to Texas Rule of Evidence 901.

Texas Rule of Evidence 901 and the Authenticity Requirement

Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence. Typically, to satisfy the requirement of authenticating evidence, the person offering the evidence must produce items or data sufficient to support a finding that the item or data is what the proponent claims it is.

“Authenticity may be established with evidence of distinctive characteristics and the like, which include [t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

TEX. R. EVID. 901(b)(4); see Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Conclusive proof of authenticity before allowing admission of disputed evidence is not required.

Applying Rule 901 to a “Picture Only” Video of a Video

May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device? The Court answers that, yes, it is possible, given the facts.

Here, the Court acknowledged the argument of the defense in the appeal: “The court of appeals’s point is well-taken—the State could have done more [to prove up the evidence presented]. However, even though the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way.”

The Court reasoned that video recordings without audio are treated as photographs and are properly authenticated when it can be proven that the images accurately represent the scene in question and are relevant to a disputed issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). The Court stated that (1) the officer’s in-person request of the manager of the Family Dollar store to pull the surveillance video on a certain date at a certain time; (2) that the distinctive characteristic that there is a date and time stamp on the videotape; and (3) the fact that the date and time on the videotape correspond to the date and time on the receipt that was found within three feet of the ATV; (4) the fact that the videotape pulled by the manager reveals Fowler at the store on that date at that time purchasing the items listed on the receipt that was found near the stolen ATV, were enough, together, to authenticate the video. The video was sufficiently authenticated to be admissible into evidence. The evidence strongly pointed to Fowler and, accordingly, his conviction was upheld.