New Fifth Circuit Court of Appeals Case Upholds Cell Phone Tracking

August 5th, 2013
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It’s often said that we live in an era of unprecedented technological advances. In no area is this more apparent than in the field of telecommunications. What a person can now do with say, an iPhone was simply unimaginable even just a few years ago.

The latest buzz is that Apple may soon introduce a feature in its iPhone that will allow users to unlock their phones and conduct transactions with just a fingerprint. If properly developed, this technology could yield huge advantages. But given the recent scandals with the NSA’s mining of data, these advances also have a potential of further undermining our sense of privacy.

To many, a new decision from the Fifth Circuit Court of Appeals is further proof that our civil liberties are erroding as the government’s power to monitor us is growing stronger. That decision held that law enforcement can obtain historical location data  - useful to law enforcement to collect data about a person’s daily movements and habits – from cell phone carriers without obtaining a search warrant.

In overturning US District Judge Lynn Hughes, the Court reasoned that “[a] cell subscriber like a telephone user, understands that his cellphone must send a signal to a nearby tower in order to wirelessly connect his call.” Because – according to the Court – a cell phone user understands the way phones transmits messages, and because he uses a phone voluntarily, he has a lower expectation of privacy, which works to exempt the government from the warrant requirement.

We disagree with this decision and are distressed to see this erosion of the Fourth Amendment’s power. Undoubtedly, this decision is contrary to what we a society would consider a “reasonable intrusion.” As Supreme Court Justice Sonya Sotomayor commented in a case involving GPS tracking, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

We hope to see statutes enacted to address this problem, a remedy the Fifth Circuit Court of Appeals anticipated: “We understand the cell phone users may reasonably want their location information to remain private… But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records… or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.”

Supreme Court Rules Police Can Take Arrested Person’s DNA Without Warrant

June 4th, 2013
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Alert: Supreme Court Ruling May Affect Your Privacy Rights


The United States Supreme Court ruled this week that police can take DNA from any person arrested for a “serious” crime — and they don’t need a warrant to do it! In a controversial 5-4 decision, the Supreme Court ruled in Maryland v. King that taking an arrestee’s DNA was akin to taking fingerprints or booking photos. Conservative Justice Antonin Scalia wrote a scathing dissent, in which Justices Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor joined.   This opinion threatens privacy and could result in questionable arrests of innocent people. There are at least several problems with the majority opinion.

First, the opinion erroneously compares DNA with booking photos and fingerprints. However, unlike photos and fingerprints, DNA can tell us many intimate details about a person (and perhaps even more details as DNA science develops), including pre-dispositions for disease, mental illness, miscarriage or alcohol and drug addiction. DNA may eventually tell us whether a person is gay or straight or whether a person is pre-disposed to certain types of behavior. We must carefully consider whether we want our government to have warrantless access to that kind of sensitive information, especially for people in the criminal justice system who are supposed to be presumed innocent. As Justice Scalia pointed out in dissent, routine DNA swabbing of arrestees will likely lead to a national DNA database. It’s hard to see how that would not be a greater privacy intrusion than mere fingerprinting or taking a booking photo.
A second problem with this ruling is it may encourage questionable arrests by police agencies eager to try and solve cold cases. (I.e., Police could simply arrest a person, take his DNA and see whether it matches DNA taken at crime scenes in unsolved cases.) For those who can’t see the potential harm, keep in mind that even when a wrongfully arrested person is found innocent and gets his records expunged, he must first spend time locked up in jail, then must usually post bail and usually must hire a lawyer. And, who knows whether an expungement of records would even successfully remove an innocent person’s DNA from a federal or state database.
A third problem is that while the Supreme Court held police may take DNA from any person arrested for a serious crime, the Court didn’t define “serious crime.” Of course, murder, sexual assault and indecency with a child might all be considered serious crimes. But what about a felony drug offense? Undoubtedly there are many trial court and appellate court judges who believe any felony drug crime is serious. However, many states (including Texas) treat possession of even a tiny amount of  cocaine (so-called “residue” cases) as a felony. This means that if police find a nearly immeasurable amount of cocaine on some device that someone left in your car, you could be arrested, jailed and have your DNA taken (and probably submitted into a federal database) without a warrant.
Requiring police to get a warrant in order to take an arrestee’s DNA is not a heavy burden. It’s only a matter of paperwork in a legitimate case. But the warrant requirement at least provides a small layer of protection against government abuse and invasion of privacy, because a neutral judge or magistrate must read the warrant and determine whether the police have probable cause. In this week’s ruling in Maryland v. King, the United States Supreme Court stripped its citizens of a small but very important protection: The requirement that police must have a warrant, supported by probable cause, if they want to take your DNA.

Is there a biological basis to crime?

May 12th, 2013
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Recent advances in science may change the way we look at criminals and the underlying reasons for their behavior. Specifically, advances in neurology and brain scanning have revealed that because of brain function and chemistry, some people are far more likely to engage in criminal behavior. While researchers agree that there is still a strong social and environmental cause for criminal behavior, they argue that biology cannot be overlooked.

Recently on NPR, a researcher named Adrinane Raine discussed his work conducting brain imaging scans of convicted murderers (listen to the program here). Raine found that in many murderers – particularly those that killed impulsively – there was far less activity in the brain’s frontal lobe. Raine says this is important because the frontal lobe is involved in planning, organizing and impulse control.

Raine also discussed other factors that can impact brain functioning and make a person more prone to crime. For example, he attributed the rise in violent crime in the 70s, 80s and 90s to lead in the environment when the criminals were young:

“In the ’70s, ’80s and ’90s, violence went up in America. What was causing that? Well, one hypothesis: It was the increase in environmental lead in the ’50s, ’60s and ’70s. You know, lead in gas, for example. So, in the 1950s, little toddlers were playing outside, putting their fingers in dirt, putting their fingers in their mouths and absorbing the lead. Twenty years later, they became the next generation of violent criminal offenders because violence peaks at about 19 or 20. Then what happens is in the 1990s violence begins to come down, as it’s been doing. What’s partly explaining that? The reduction in lead in the environment. In fact, if you map environmental lead levels over time like that and map it onto the change in violence over time, lead can explain 91 percent of those changes. And to me, it’s the only single cause that can both explain the precipitous rise in violence from the ’70s, ’80s and ’90s and also the drop that we’ve been experiencing.”

This field’s implications on the criminal justice system are still unknown. David Eagleman of Baylor College of Medicine has convincingly argued for “customized” sentencing and treatment based on a person’s brain chemistry and function (Eagleman’s fascinating article in the Atlantic Monthly can be found here).

Mandatory Blood Draws Limited in Texas Due to New Supreme Court of the United States Case

April 29th, 2013
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A new United States Supreme Court ruling has probably rendered some Texas DWI laws unconstitutional and will have a big impact on the way DWI investigations are conducted in many cases. That case, Missouri v. McNeely, involved a DWI suspect who refused to provide a blood test. Blood was obtained anyway, and the police did not obtain a warrant prior to doing so, relying on the “exigent circumstances” exception to the rule that a warrant is required.

Earlier this month, the Supreme Court ruled that Missouri’s approach was contrary to the Constitution. While the case did not go so far as to say that the police must always get a warrant, the justices did say that there is no rule that allows the police to get blood in every DWI case without a warrant. Specifically, the majority opinion concluded that the fact that alcohol in the blood dissipates over time is not necessarily enough to create an “exigent circumstance.” The ruling will require that each case be judged on its own facts and from a law enforcement perspective, getting a warrant makes even more sense.

Several justices were understandably uncomfortable with the government having free-reign to subject citizens to the forced blood draws in every DWI case (Chief Justice Roberts referred to the “pretty scary image” of forced blood draws).

In Texas, several categories of DWIs or other intoxication offenses are subject to “mandatory” blood draws including cases where the Defendant has two prior convictions, or some cases where there is an accident involving injury. These provision of the Texas Transportation Code are now on shaky Constitutional ground, and the State will have to show exigency to justify these blood draws.

Interestingly, in Harris County and many other places, it is now easier than ever for the police to obtain search warrants to conduct mandatory blood draws. This is largely because of the expansion of the “no refusal” program has led to a very efficient infrastructure for obtaining warrants and has probably limited the situations where an “exigency” would actually require the taking of blood without a warrant.

-Jose Ceja

Miranda Warnings for Boston Marathon Bombing Suspect (And All of Us)

April 20th, 2013
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Not long after Boston Marathon bombing suspect Dzhokhar Tsarnaev was taken into custody, the federal government announced it would not give the suspect “Miranda Warnings” before interrogating him. Withholding Miranda Warnings from a criminal suspect is a clear mistake. The so-called “public safety exception” to Miranda is rare, and it doesn’t apply to the case of the suspected Boston Marathon bomber.

First a little history and perspective. In 1966, the United States Supreme Court held that a criminal suspect in police custody must be given certain rights or “warnings,” before police agents may interrogate the suspect. Miranda v. Arizona, 384 U.S. 436 (1966). These rights include the right to remain silent, and that anything the suspect says may be used against him in court; the right to consult with an attorney prior to and during any questioning; and, if the suspect cannot afford an attorney, the right to a court-appointed lawyer free of charge. Since 1966, Miranda has been the law of the land in all 50 states, with some states (including Texas) codifying these rights and even expanding them slightly. Now, when a suspect is in custody but not “Mirandized” before police interrogation, the answers the suspect gives are generally not admissible in court.

In 1984, the United States Supreme Court carved out a “public safety” exception to Miranda in New York v. Quarles, 467 U.S. 649. The Court called it a “narrow exception to the Miranda rule” and predicted that police officers “can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” Id. at 658-59. Quarles involved a suspect who allegedly raped a woman at gunpoint. When a police officer located Quarles and took him into custody, the officer discovered the suspect was wearing an empty gun holster. The officer asked where the gun was and the suspect nodded toward some empty cartons and responded, “the gun is over there.”

The Supreme Court in Quarles recognized that an immediate threat to officer safety can at times outweigh a suspect’s right for Miranda Warnings before questioning. However, in the case of the suspected Boston Marathon bomber, (who was taken into custody and immediately hospitalized in serous condition), there was no immediate threat to officer safety or public safety. Law enforcement authorities publicly announced there were only two suspects — one killed in a police shootout and the other wounded and taken into custody. The police had no information to suspect additional bombs posed an immediate threat to anyone. In fact, the town of Watertown, Massachusetts had been on lockdown until the suspect was captured. Then law enforcement authorities and public officials told citizens it was safe to return to the streets and their daily lives. If the primary argument for withholding Miranda Warnings to the suspected Boston Marathon bomber is that he “might” have information about additional bombs or bomb plots, then the public safety exception could be arguably stretched to include a possible danger in every, single type of case involving explosives, guns, threats or violence. It would be a classic case of an exception swallowing up the entire rule.

Miranda Warnings and constitutional rights are not minor inconveniences to be circumvented when a suspect is particularly hated or when police agents really-really want a suspect to talk. Constitutional rights are cornerstones of American democracy. They are what make our country superior to nations that don’t have constitutional protections for their own citizens. We either believe in our constitutional rights, or we don’t. I believe in our Constitution and I cannot imagine I am alone in that belief.

3 Key Tools in Texas Criminal Discovery: Subpoenas, Subpoenas Duces Tecum and Writs of Attachment

April 15th, 2013
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Texas criminal discovery rules are continually evolving and the best criminal defense lawyers in Houston and across the state will not overlook any of the tools that may help lawyers discover evidence favorable to their clients. Three key tools for discovery are the subpoena, subpoena duces tecum and writ of attachment.  A subpoena is simply an order to appear in court and give testimony. A subpoena duces tecum is an order for the witness to appear in court and bring something — such as documents or tangible evidence. When a defense attorney applies with the court for a subpoena duces tecum and seeks documents, it is usually a good practice to include a standard business records affidavit, along with the subpoena duces tecum, setting forth the documents the lawyer wishes to receive. (If the witness fills out the affidavit, swears before a notary, and attaches the affidavit to the documents, the documents will often be admissible in court — without the necessity of a live witness. This can save the witness from having to make two trips to court. In fact, a witness who produces the requested documents in advance of the court date and attaches a sworn, business records affidavit to the documents, may sometimes be released from having to appear in court at all.)

When the attorney goes to court on the date a subpoena is returnable, the attorney should arrive early and call out the person’s name and try to locate the witness. If the attorney cannot locate the person targeted in the subpoena and the attorney has written proof that the person has been personally served with the subpoena, the attorney should approach the judge and ask her to sign a “Writ of Attachment.” (The attorney should bring to court a written, writ of attachment, plus three extra copies. The attorney must file the original and get a file-stamped copy.) When the judge signs the writ of attachment, the attorney should get at least two certified copies — one for the bailiff and one for the attorney’s own file. The clerk will then issue a warrant for the person’s arrest and may even ask the judge to set a bond. The bailiff is then authorized to arrest the witness and bring the witness to court.

An excellent criminal defense attorney, who knows the rules of discovery and how to use them, can often achieve a superior result for any client accused of a crime in Harris County or elsewhere. The difference between victory and defeat is often knowing what to look for — and how to get it.

Be Safe and Know Your Rights This Labor Day Weekend

August 28th, 2012
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Several media outlets have reported that DPS has stepped up its DWI enforcement in anticipation of Labor Day Weekend, traditionally one of the biggest for alcohol related arrests (read stories here, here and here). “What we’re doing is putting every available trooper out on the roadways,” a DPS official told a San Antonio Radio Station. “Even those individuals who are usually behind a desk in the office will be on patrol.” Additionally, many counties, like Galveston County, will be running “No Refusal” programs, joining counties like Harris County where this policy is in effect at all times (read the story here).

There is no doubt that keeping our roadways safe is a very high priority. But as we have noted in the past, “No Refusal” Weekends have the effect of eroding the rights of those accused of crimes, and appear to be a part of a deliberate misinformation campaign on behalf of state agencies. As must have been obvious to the program’s founders, the name “no refusal” is often being interpreted to literally mean that a person suspected of DWI cannot legally refuse a chemical test. But this is not the case: A DWI suspect has every right to refuse a chemical test at all times, but during “No Refusal” weekends law enforcement will usually apply for a search warrant, something they are legally entitled to do anyway on any weekend.

Additionally, “No Refusal” weekends encourage police officers to illegally warn suspects that they “better just blow” or else blood will be taken anyway. Any DWI defense attorney knows that these types of warnings are illegal because they are coercive (in other words, someone is being told “blow into this machine or get poked by this sharp needle – your choice”) and not contained in the warnings police are supposed to read to DWI suspects.

Although keeping our roadways safe is a high priority, so is preserving the integrity of our justice system. But far too often, DWI suspects are treated differently. This Labor Day Weekend, stay safe, but know your rights!

All I Want For Christmas Is a Little Honesty

December 11th, 2011
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The holiday season is in full swing, and so is Texas DWI enforcement. Police agencies throughout the state are beefing up DWI patrols. DWI defense attorneys in Houston and everywhere agree on one thing: the best way to avoid picking up a DWI is to avoid being behind the wheel if you’ve had too much to drink.

The Department of Public Safety and other government agencies are trying novel ways to discourage drinking and driving. This year, DPS launched a new website as a part of its “Choose Your Ride” campaign and a Santa-themed DWI Facebook page. Even some local law enforcement agencies are trying new ways to get their message out. Last week, an NPR affiliate in Arlington reported that the Arlington Police will have live “Tweets” from DWI arrests.

We welcome these creative approaches to discourage drinking and driving in Texas. But the problem with these approaches is that they are far too often dishonest and closer to propaganda than accurate information. If you were unfamiliar with the laws of Texas and you saw these pages or followed the Arlington Police’s “Tweets” you would almost certainly believe that drinking and driving is illegal. Of course, this is not true. You don’t have to be a criminal defense lawyer to know that it Texas, you are guilty of DWI only when your blood alcohol content is above a 0.08 or you lose the “normal” use of your mental or physical faculties (what “normal” means in this context, God only knows, but that is a subject for another blog post).

For example, DPS’ website employs the catchy phrase “Drink. Drive. Go to Jail.” when that is clearly not the law. This is a problem and I believe we are not nitpicking when we take issue with this. When people are misinformed as to the law, they will eventually believe it. What would happen the next time they sat on a jury? Would they be able to render a fair verdict? What about police officers? Will the goal of “keeping drunks off the road” outweigh the rights of the individual? Will an officer fed a steady diet of blatantly wrong catchphrases err on the side of making a DWI arrest? These are genuine concerns. While we believe the goal of keeping our roads safe is an admirable one, we ask that our government honestly instruct its citizens as to its rights, and what the law really says.

Canadian Province Moves to 0.05 BAC Limit for Drivers

December 8th, 2011
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Since practically the time automobiles because commonplace, our government has enacted legislation of one form or another to protect us from intoxicated drivers. Amazingly, the first government sponsored study recommended that drivers with a BAC above 0.15 could be presumed to be intoxicated while those below could not. Over the decades, criminal defense lawyers know the legal limit has steadily been decreasing due to pressure from politicians and politically influential organization like Mothers Against Drunk Driving. Today it is 0.08 in every state.

When will it stop? When it is completely illegal to drink and drive? When it is completely illegal to drink at all? At least one Canadian province has taken the step of enacting penalties for drivers with a BAC of 0.05 or higher. Is this a sign of things to come in the United States? An excerpt from the article below – originally published as an editorial in the Edmonton Journal – raises some interesting points:

Alberta’s new drinking-and-driving legislation will follow the tire tracks of B.C. into a decidedly grey area. In so doing, it may create opposition to an initiative that will achieve its public-safety goal, but still invite criticism for targeting drivers who are not legally impaired according to the Criminal Code of Canada.

Drinking and driving is a crime that kills too many people, both bystanders and the drunks themselves, and there ought to be universal rejection of the practice. Our premier and her government should be dedicated to the eradication of this scourge. And they were in fact wise to consult with their B.C. counterparts, whose iron-fisted and open-handed legislation is being credited with a significant reduction in deaths caused by drunk driving since its enactment in September 2010. But the Redford government has to see the B.C. legislation for its unduly harsh nature – and its cash-cow element as well.

In B.C., a driver whose blood-alcohol content is measured between .05 and .08 – which is legal under the Criminal Code – can be hit with an immediate three-day licence suspension and have to pay a fine of $200, as well as a $250 fee for licence reinstatement and might also have to pay for towing and storage if his or her vehicle is seized. Being caught in this grey area a second or third time in a five-year period results in heftier financial penalties, lengthier suspensions and longer vehicle seizures.

But a 125-pound woman needs to drink only two fiveounce glasses of wine over a one-hour period to register .06, according to a Canadian Automobile Association calculator. When Redford said she wanted new legislation to change the culture around impaired driving, surely she meant to target those who drink themselves past .08, rather than the husband and wife who share a bottle of wine on an evening out for dinner.

DPS Offers Driver’s License Information Website

December 7th, 2011
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If you are unsure about the status of your Texas Driver’s license, the Department of Public Safety has launched a website which will allow you to check your current status. Additionally, the website allows users to pay fees charged for suspension offenses, and lists any outstanding compliance items that need to be completed before driving eligibility is restored. The website can be accessed here: