Warrants Good Faith Exceptions Consent Searches

A smart cookie and a good rider. She wrote the Duarte opinion. Reed Huddleston from Texarkana, “I live in West Texas, my wife’s from Mahaya, he spell out with an “x” and while I’ve used to give these talks 8-10 years ago,” I “tee he” about you know some opinion from the Texarkana Court Of Appeals where last week they got their first full set of teeth. you know Tee he and haw haw like that. Not anymore! I’ve been paying trench to Texarkana court, those folks can ride and when it comes to search and seizure issues, they’re pretty stout and they write it in a way that even a person like me with a low IQ can read it. Huddleston is a really good case; I’d like you to take a look at. And it’s the, the really good language, let me get my glasses. That really explains all this, starts at the bottom of the page 4, of the actual opinion and that would be probably page 36 in the text, 38, page 37 and 38 are the actual case, you want to look at it.

They had a search warrant, it’s basically is an informant who calls and says there’s going to be such and such at this place in their in trouble with the law and all the little things that need explaining about why this person is credible or reliable are not there. What’s more important is that there’s no independent corroboration of those details which is real important which is what Judge Cochran talks about in Duarte, think Duarte is out of here in San Antonio and basically they had a person who is in a bind and its boiler palate, the defense lawyer on this was shot and apparently he’s part of this San Antonio criminal defense lawyer association and people talk to each other because when they read the affidavit, they realized “This is the same boner plate out of the Porto case, a few years ago except for few small changes ”.

They don’t have any independent corroboration and Judge Cochran does a real good job of taking also what’s in Huddleston a year later but echoing it here.

When you’re dealing for the first tile informant or any kind of confidential informant, you’ve still got a really demonstrate in non-conclusionary language why that person is credible reliable what you’re going to find where and to corroborate it. Those two cases will teach you what you need to know and direct you where you got to guide you in evaluating those kinds of warrants. What’s a conclusionary statement, well a statement that draws a conclusion but done provide the supporting facts. So and so is credible and reliable, that’s a conclusion when they say, “he has worked with me on 4 or 5 prior occasions and provided information that led to arrest and seizure of cocaine, that is factual. It kind of like when I was assistant DA, what’s this credible and reliable? What’s the damn difference? And my boss Dan Bower put down his vantage cigarette, looked over his glasses “Well! David you know and I leave the name of the preacher’s wife out” and said “You know so and so?” Yes sir! She is a nice woman! A good lady, no doubt she would tell us the truth all day long, but she wouldn’t know what a marijuana cigarette smelt like ever in her life.

Okay! The flip side, and he pulled up the case of some meth addict which in 1989 Johnson County was the freaking capital of triple neck flask meth addicts from there to Chico to Jacks borrow and anybody’s been in Fort Worth or Johnson County knows that time it has more than the nation share of good old fashioned speed freaking white trash. [Audience laughs] That person is reliable, they know what meth looks like, smells like and you can drop them off in a new town with no money in then in 24 hours, boy they’ll find some better than a German Shepard dog [Audience laughs] and get a load of it for free without trading sexual favors, it’s incredible! Well they know what they’re talking about, they’ll just life their heart’s beating and the days ends in waah! Especially if they’re in trouble or Jimmy Jail Bob, he can get out of jail because I love him! That sort of thing.

So credible and reliable, just because they’re an honest person doesn’t mean what the hell they’re talking about especially in the drug business because this is what never talked about doesn’t mean they’re going to tell you the truth! Barraza and Lowery are the two simple cases to use when you’re trying to educate a Judge or educate yourself on what conclusionary statements are. They have superb examples in them, I don’t want to read the whole search warrant to you here today because you can read yourself but those are good cases. The Corpus Christy court does a very good job of segregating out in Barraza.

Timely executed, I remember doing intake in the DA’s office; we get a case on the search warrant… “Boss I don’t really understand”, first thing to do, see when it was issued, see when was it executed. Was it signed? The best case on this just simplistic, connect the dots work is out of my home court, the 7th court in Amarillo, it’s Rico 241 South West 3rd 648, the warrant got signed at 2:10 pm on August 19th. It was executed on August 24th at 9:10 and you know the Rule under 1806 and 1807 code says 3 days not excluding the date of issuance and date of execution.
Man, why you put those exclusions in there, why don’t you just say…3 days after it signed or 4, let us go well the question was kind of like a Bill Clinton what it is, what’s a day? Well the state was arguing and was any 24 hour period. Well! Rico tells you is no, once you cross midnight, that’s it. So if you get your warrant at 11:35 pm, your day starts at midnight not 24 hours after that but anytime you want to count, when was my warrant executed, when was it issued? Pull out Rico, it’s like 7 page opinion, it outlines in very simple terms, how to figure out if a warrant is timely issued which is different than staleness, Staleness goes to the probable cause concept of how old is the information trying to seek what you want to obtain in the search warrant, think about it like this, if its, we’re talking about Staleness, if someone so says I’ve seen drugs in this house within last 36, 76, 24 hours, well you know they need to get their warrant and go look and that’s alright but if someone says you know I was hanging out with that guy in college and he had 3 water bongs on the coffee table and a half a kilo of hydroponic and bunch of people hanging out and that was 6 months ago. Dude that week’s gone! Now if we’re talking about stolen art or a bloody knife that’s a murder weapon; that maybe out in the barn. Well! Then it’s probably not Stale information because that’s the kind of thing that might still be there.

Warrant by standards, these are cases where you walk in and your client’s caught with a gun or drugs typically and at first blush, you’d need to talk to the assistant DA, we will offer your guy 10, look you’re screwed, it’s a warrant they found it on him. You’re like “well crap!” Warrants are preferred; well wait a minute! My guy wasn’t named in the warrant, sometimes people at wrong place in wrong time. Here’s one from the Supreme Court, I don’t have the site there but I can read it to you because I got it, 133 Supreme Court 1031, 133 Supreme Court 1031, Mr. Bailey was at an apartment that the police had under surveillance that they thought was a hub of drug activity and they were right and right before while they’re waiting on the warrant to get there with the raid team, Mr. Bailey and another fellow get in the car and they drive off. And it’s an urbanity I think in DC and they go like 5 minutes down the road which apparently takes them a mile, that’s a mile 5 minute’s a mile, that would never happen in Lubbock may be like 5 miles. But they follow these guys and they go to another apartment, go in that apartment and when they’re coming out the police.[Click Click] Freeze! Welcome to the one eyed mustard, this is Mile 40 Smith Weston Pistol, you need to get on the ground, I’m going through your pockets, going through all your stuff and they take them back to the apartment. It was in the US Supreme court? No! That Michigan’s Somers versus rules that allows the police to briefly detain people who are not named but present on a premises where a warrant’s been executed coming back from a Abar v. Illinois. It’s got to be that immediate residence or scene, it can’t be a mile away or you followed them from there and you see a lot of those cases, people pulling out of the place, they’re getting ready to run a warrant, they hit them all.

If you read Lippert and Brooks, Brooks is an unreported case, it’s not authority but it does a real good job of teaching the concept here, Lippert does as well. What happens in Lippert is the police have got a valid search warrant, they’re running away looking for I think meth! 15-20 minutes after the raid team has had the adrenaline rush, kicked all the doors outta the door jams. There’ no wood in the door jam, everything’s caved in, children are crying, this cop standing there in room and he turns looks over shoulder and Jesus! There’s Mr. Lippert and this woman standing in the door way going’ “what’s going on? [Laughing] Yes! I’m in the position. It’s what it said in record, I don’t think it’s his actual words, it was something like freeze mother and 11 letter word describing a procreation of all mammals. [Audience laughing] they got on the floor and here’s the deal, you can detain them and they might be able to conduct a brief pat down if they trigger the [Abar versus Illinois] you can articulate some reason you think they’re armed and dangerous, there still has to be reason to path them down or frisk them, it is what we do for an officer’s safety. Yes! That’s the goal but what was the basis, they’re different things. Lippert and Brooks help you deal with that situation where you have someone who is either going by to drop off their laundry or hurt—a guy had a fresh load open in town and is coming to score, that’s when you get the forfeiter case because they’ve ceased the $500,000 off of him. But that’s people heard just at the wrong place at wrong time.

Warrant Bystanders; Anonymous tips, whether it’s for a warrant, it usually didn’t get them anywhere and for stop it done here two real good cases that’ll teach you that. Florida versus J. L, a dispatch got a call that on a street corner, there would be three African American males, one would be in a check jacket and he’s got a gun. Of course the word jacket in Florida really don’t go well together because they don’t have winter there and so this female officer goes out there and she sees [low and behold], three youths on the corner and they’re standing around and one on low on behold has a red black plat jacket just like the color say it. It’s a prophecy from the Lord. “You! Come here,” pats him down and he’s carrying a pistol. Went all the way to the United States Supreme Court and they said “No! That doesn’t amount to reasonable suspicion to detain him” so well wait, wait, wait, it was an accurate predictor of future information. The color said that at 3.10 in the—and I’ll make it that part up but at specific time, this guy would be there with others wearing this colored jacket so, yeah that’s not indicative of criminal behavior, that’s I could follow any district or county Judge around town. Okay there’s a blond lady with a lavender dress on in a blue Lexus, she’s got a cigarette, she’s wearing gold drop earing, she has crème colored 3 inch heels, for lunch today she’s going to go to Georgia’s pizza and she’s going to have damn bag of weed in her purse. All I said was anything held out to public view that anyone could know and it’s not indicative of criminal behavior.

In Florida versus J.L they said that’s not it. The State versus Wilson’s kind of funny again it’s my favorite little Texarkana Court. A caller called in and said “There’s going to be running down over towards Greenville Highway 66, there’s going to be gold Chevy Blazer with two women in it and about 15 ounces of meth” of course you got to watch this, usually an ex-boyfriend calling in or in this case the jealous other girlfriend calling in the call, so really wouldn’t totally anonymous, they could tell by the twang in her voice and having listening to her holler 3-4 times a week exactly it was. But there’s the US Supreme Court and the Texarkana Court letting you walk through anonymous tips pretty well.
Automobile stops; the two bed rock cases you have to know or Delaware versus Prouse and Whren versus United States. Delaware versus Prouse tells you there are three reasons and three reasons only to stop an automobile, a traffic violation such as speeding and illegal turn, dangerous lane change and that sort of thing, under equipment violation you’ve a broken head light, your registration is out, your rear muffler is hanging out the back putting sparks down the road or probable cause to believe some other offenses occurred. Whren versus United States is the 1996 Supreme Court case that said “Yeah, profiling is okay, doesn’t matter about your subjective intensions if you’re doing narcotics induction or whatever, if you can find some reasonably objective basis for the stop, your subjective intensions don’t matter!” that’s what they said.

Let’s walk through some of those little bit, United States versus Miller is a Fifth Circuit case and it’s much of fun, it is out of Amarillo umbrella, I think Sam Ogin in the Federal defender’s office did this. This guy’s in a Winnebago on I-40 and have you’ve been followed somebody and got their blinker on? And so you back off a little bit, exit goes by, well maybe the next one and it screws you up for a while and why you like to hit your photon beam and blow them up. [Laughs] that’s not a traffic offense and he hadn’t put it on a special session for this year so for two more years, driving down the road like an idiot with your blinker on is not a Texas traffic offense. Well that’s what it happened here in Miller.

The officer follows him, he has his blinker on, he didn’t change lanes or turns, they pull him over, stopped the Winnebago, go fishing with Bill dance and find 300 pounds of marijuana in the car. So there in Federal court in front of Marley Roberts who’s not happy and US attorneys officer tries to say “Well good faith, he didn’t know that was in the law” they all think about that little bit, if that’s the good faith exception, I’m going to open up Dave’s speed reading peace officer certification school. You don’t have no shit, here’s a bad sign, go ride a head, you’ll win all your cases. Well! No Ouch that’s good faith, see you set it with straight face, look like a happy doll, you’ll be alright. Riding down road, got to be traffic offense, well low and behold, we’ve got it in here in Texas this year the Abney case.

Guy’s driving in the left lane, well that’s where I always drive, that what trying to catch up with Harley. My 12 year old car catch up with his six year old car, “hey barney put your wheel to the bottom”… that’s how you go 80 miles an hour, your get in left lane. Well you are not supposed to drive there unless you’re passing at that particular moment. And sometimes, they have sign saying “No driving in the left hand lane” which is like communist or something I don’t know but I saw you don’t run all over those idiots going 45 and 50 in the right hand lane.
Well! In the Abney case, it tried to say well he wouldn’t, he was staying in that lane, well there’s some cute fact finding in notation by the court that it was really really gentile, the way they wrote this opinion because they don’t use any adjectives but they noticed that the sign was saying you couldn’t do that, we’re like 30 miles back. That’s you know there’s a real…I think bench slap is the politically correct phrase to use when the court something like that to the state or more particularly the police.

Tail light out; get this, had to go all the way to the Fifth Circuit on it, another good case I think this was from San Antonio Judge Fridge Beurri I think was on it and got it right and Fill Lynch I think was the FPD on this. Mr. Lopez Valdez, Miss Lopez Valdez is on a highway on County Road coming up out of El-Indio, which we know is we’re not supposed to ever drive or because that could be from Mexico and she passes the officers, the border patrol guys and they see her notice much people in the car which of course you can’t carpool out El-Indio and so they turned around and follow her and they noticed that she kind of hit her brake light and shazam! In the vernacular, the tail light was broken, not legally broken but practically broken.

He could see that outta the red part of the light, some white came outta it. When they got her pulled over, there’s like a one inch rectangle cut out, like somebody taking a damn exacto-knife and cut out of the tail light upper was the red part was, so white light came out and red light came out so yes there was plastic and yes it had a crack or a break in it. But in 1986, the Texas court rules no no no as long as it’s emitting both red and white light, it is not a defective tail light.

Broken don’t mean you know “Well hell it’s little broke” so there’s hope for us all just because on the United States versus Whren, they site one of the millions of offenses in our traffic code, go ahead, get ready for your paper cuts. Look at that statute, see what it actually says, okay! If any traffic offense will do, it still has to actually be that offense and it took an industrious assistant Federal defender used to looking at guidelines and cross referencing money laundering statutes and complicated things like that to go pull out the God blame Texas traffic code and figure out what a broken tail light really was.

Arizona versus Gant; two years ago, really significant decision abrogates New York versus Belton, Belton was the case that was one of those that came out with… it seemed like good facts to help the officer was the guy with a revolver, he’s only like the… I think in Detroit, he’s got him pulled over no new york he like some turn pipe, he’s got 5-4 guys out of the car with his 6 shooter, his knees are knocking together Barney 5, he’s got them outta the car and so he searches the area with in their immediate areas so that he didn’t end up you know in the bottom of trash compactor and the court said well yeah [that] was okay, well all of the sudden you know it’s kind of like this Marilyn versus King, put the swab in your mouth deal, you could kind of see it. What di New York Belton become for us, they get you out of the car, they can toss the whole damn car, you’re screwed. They can search everything everywhere you know even Mr. Gant, he got stopped for driving with his suspended driving license which in Arizona is civil not criminal which is amazing. He’s putting in back of the car, they then go to, they have got him handcuffed in the back of the car, locked in! plenty officers there and they just start searching through the car and they found cocaine and a gun in a pocket jacket in the back seat, charged him with the possession of drug, paraphernalia possession of control substance, they said “Hey this is search incident to arrest Belton should apply, even after the arrestee lost access to vehicle!” because that was the factual basis that they hung New York versus Belton on, well it was kind of what was called the “Grabbing area”. Well unless they thought this guy was Captain fantastic or stretch arms strong, has he going to get out of the cuffs of the locked patrol car, 30 feet up to his car to get the gun or the cocaine. And that’s what Supreme Court said, wait a minute there wouldn’t any reasonable possibility of Gant getting access to the car or reasonably there’s evidence relevant to the crime of arrest. Look! You had the computer saying his license was suspended, what do you think you’re going to find, note to self, Damn! Pay on license suspension, you know what were they looking for?

Community care taking; we hear that all the time, right in Corbin or good cases that teach you here, what are the factors that you look at? The nature of level of distress exhibited by the person you’re trying to take care of, where is this individual? Are they out on the highway at night, or they’re in the dangerous urban area, or they lost walking around in cotton fields screaming and holling people! That one’s close to home. Are they in a place, they’re going to need help or can they fall down and be just fine, or they someone else there who can help them, that’s the 3rd factor. Are they alone or they have access to others, to what extent does the person without assistance, are they a danger to themselves and others. Take a peek at the right case, and see if it did make you laugh, it’s up in George Town officer’s pulled over the side of the road and sees a car come blazing on through and hanging out the window or the passenger side is someone [sounds] where’s the Buick?, they’re puking out of the car, who community caretaking I got to help them Oh shit they got somebody driving, they are fine, they’re in no danger vomiting, let them go down the road. The court made them look at that twice, he said that was community caretaking.

Well! They were on a highway, car seemed to be running fine and somebody else was driving, you stopping them is not going to help them get there any quicker. [Audience laughs] Consent! This the what can wash away my sin case,
Chavez-Villarreal is a Fifth Circuit case, it sets up the basic analysis, was the consent freely and voluntarily given and is and independent act of free will and pretty much you look at those two things as long as there’s not any prior illegality with a detention or coercive questioning issue by the police, consent does pretty much solve a lot of problems for the State. You didn’t get confession, you dint get a consent, it’s a tough road for defense but if the detention was too long or the basis of the stop wasn’t good, you change the analysis to Brown versus Texas.

Exemplified in the Jones’s case, there’s a whole line of them going back to [dorch] from about 1998 out of the Fifth Circuit that outlined this marvelously the most recent cases [Masious] from 2011. You look at the voluntariness of custodial status. Hell man I wanted to leave, presence of coercive police procedures. Why is that they always say I asked him if he wouldn’t mind sitting on side of the curb, and you turn on the MVR, sit down right there! I don’t know, question was inquisitive in 3rd grade and [inaudible] C class for me. It had a question a mark at the end of it, not a snap finger and a point like my dad did. The extent level of defendant’s cooperation, did they have diarrhea of the mouth or they having to quiz this out of them.

Defendant’s awareness of the right to refuse consent; Maybe I haven’t paid attention, I’ve only been licensed since 89 but I’m never ever have them tell my client, you have right to refuse consent. And apparently that factor just didn’t dominate that much, it’s kind of on the checklist but it usually goes well for us but didn’t mean you’re going to win. Defendant’s education and intelligence; well a lot of my clients win on that one because they’re not intelligent, did you finish high school? What? “Yeah”, “no, 11th grade”, “did you finish or quit 11th grade?” “Man! I got to GED!” “What’s that?” “Man I don’t know [Audience laughs] you know what Ron said about GEDs if you don’t know what they are, it means you got one too. [Audience and speak laughs] they’re low on the educational level, pretty low on the intelligence level.

This one, D’s believe that no incriminating evidence would be found, “man I forgot about that shit! We were partying two months ago, that must have fallen out the back, I’d no idea that was still there. Or no man that why I was sweating bullets and had blood pressure like my Annie, I was about to die because they were about to find that load”. They then asked though, “do you look, If there’s priory agility and subsequent consent and a search, the temporal proximity of illegal conduct and consent” that just means how far apart is it in time.

The presence of intervening circumstances; well if it’s right there on the side of the road, they are probably not many. Now what could be summed that saved the day for the police, you take them to the station, put them back in the tank and then they knock on the door want to talk to you later, “hey! look man you don’t need to get my lady outta bed, let me tell you where that stuff is” or something to let there be a cooling off period for people to start thinking, people to be aware, how long is it and the purpose and flagrancy of misconduct by the police, they usually tell you, just they’ll be honest about it, what were you doing well I was looking for drugs or I was looking for something else.
Cell phone searches; folks this is where the future’s going to go, I put these four cases, because they’re the only four Texas one’s I could find. Finley is the Fifth Circuit case that is bad for us, it is a…I think Don flannelly covers it in his paper, Finley, I don’t think is going to hold up, I don’t it’ll work with the supreme court, I think if it went back on review, they might undo it, it was too early in the technology, you could tell enough 5th circuit Judges and their clerks didn’t have cell phones. You get this issue to I don’t care the most right wing, bunch of Fifth Circuit law clerk’s right now and tell them that their cell phone is just a closed container like a brief case or back pack, I don’t think they’ll agree.

Society’s expectation of privacy of change, take this hypothetical, a doctor is driving home with a [stebco] briefcase of patient files, they’re pulled over, low and behold, that traffic ticket they got two months ago that they gave to their clerk, didn’t get paid. So mow there’s a green’s officer huge shout arrest, doctor Steven O’ Dalton DO, Lubbock Texas, you know they got to, they got to take him to jail, with that they mean they could go through that briefcase and read all those client files and find out who had what sexually transmitted disease or who has lymphoma or who has cancer. Anybody thinks that’s a legal search and seizure? Okay we change it to a lawyer with all you privileged client files, No! Okay what about a 9th grade girl and her dairy. No! Folks those are just files, it goes back to 1929 if the police want to look it your files, your personal papers and the facts usually have to have probable cause and a warrant. What is a cell phone? Well that changes dramatically with technology. In 1993 it was a brick like this big and all you could do is call people on it. Now! You know every one of you got one, they all are amazingly off but you can dang there on your office on one of those things.

Granville wins the best case on it, it’s on PDR right now; the States find it like wild! Amarillo court got it right, there they went through somebody cell phone incident to arrest and the state like it to close containers in Amarillo court said “Look! That’s just not like going through somebody’s pants” a cell phone’s not a pair of jeans hanging on the hook that you can just go through, I think you’re going to have to have probable cause and a reason to think there’s evidence on. That’s really the best case, since now since a real kind of funny deal it didn’t answer to the question directly; the officers are handling a situation where they’re looking for a girl and this guy’s trying to call somebody to verify [where abouts] to the officer. Mr. Cisneros was not very smart, back on the consent part, he would do poorly when the cops have you there and you’re going through your cell phone and they know it’s taken about 45 seconds. Don’t pull up all your child porn videos so that when they look at your hand, they can see the child porn videos which is what Mr. Cisneros did and this was the case through alleging ineffective assistance because his lawyer didn’t try to fight all that, they said it wouldn’t clearly establish law.

Black and Deaver are just two examples, they’re not right on point, Granville’s the best one, I guess that will then beg the question, must you have a warrant search cell phones. The drug officer’s always say “Well they could have text messages, those things disappear“. From the cell provider with in due time, 4-5 days Yes! But not from that phone if you really believe they’re communicating, they’re part of conspiracy, go get… say why and go get a warrant but the idea that they’ll they can just search through your phone and use that evidence against you, let me tell you what they will do and I know they do. They just go through it, kind of like NSA, well we’re not going to prosecute you with it but we’re going to use it for intelligence purposes. What is that mean? You have somebody arrested, you’ve got him in jail, they go through his phone, find out who all are contacts are, keep up with it and use that to go scout out other people! They don’t use that against their client but they use the Intel to go scout out who all the other dopers are. It’s not subject to a suppression issue because it’s a map situation but it is.

A protective sweep; this is where officers are lawfully where they’re supposed to be and they’ve got to have a reasonably if there’s a person in the area that poses danger to cops or others, it’s real important, look at the Reasor case, they’ve got to stay within the appropriate scope and last only as long necessary to dispel the reasonable suspicion of danger or presence of another person.

There’s case out there called Rodriguez where the officers are looking for a person and one of them sticks his gun barrel on little 48 inch igloo cooler and flip opens a lid and low behold, there’s two kilos cocaine! Well the court said “No! You’re looking for a person and there are no people that can fit in a teeny tiny cooler!” There couldn’t any danger now looking under the bed, well it depends how high up is the bed, you know when they’re looking in the closet; they just poke between the jackets, that’s okay! But patting and frisking all the jackets because some though clients figured out that’s a real place to stash dope. They like to put it in the jacket in their closet. The ones who’s jacket they own for the when mama dies or their aunt dies, it’s got to be brief and where people are likely to be and they got to have reasonable believe that someone might be there!

Exigent circumstances; we hear that all the time, do not let exigency drive the bus, there’s still must first be probable cause, they got to have probable cause and then you get to check out the exigency. And what exigency is not just we are in a hurry and wanted real bad like an ADD kid at Christmas. It’s some danger to the officers or victims, or increase likely hood of apprehending a suspect or the possibility of destruction of evidence like if they’re standing outside with a shotgun house, its peering beam over and the wrong part of town in Texas and they hear commode’s flushing all of them at once, somebody might be doing something and that might be an exigency! But here are the factors they look out, could you’ve got a warrant? How much time? How reasonable is your belief tat something’s about to be destroyed and watch pull… we didn’t know this could’ve happen, that could’ve happen, that’s a chicken little theory of reasonable belief and that’s not objectively reasonable, are they danger to the police, they hear people, man gigs up, police’s there, did they know what’s happening and are they looking for something that can readily be destroyed if they’re looking for the tire iron with the blood on it from the blood beating someone’s death you know unless they’re running a smelter at the moment or have a cutting torch out, it’s not likely to disappear.

Davis cases; [Fennel Davis] if you practice in Lubbock, you just don’t graduate to the criminal defense bar until you get to represent fennel, whether it’s court appointed or on the super slow pay, you just, you don’t have your spurs till you represented Fennel a time or two and it goes around with everybody, but the great thing is, he’ll fight, he’ll fight a case, man that’s bull shit, Fennel’s over there in the hood one evening and the police come over because the stereo’s loud. They know him from some prior domestic calls with the many of young women who would frequent his company and they ask him for his identification. He looked at them, it was same as it was last month, “sir would you produce your license”, “man you know I don’t drive”, “sir would you identify yourself,” it’s fennel fucking Davis, same it was last five times you arrested me!” [Audience laughs] he said he was acting nervous so they frisked him and found a crack pipe and you know, then they went to the rest of it and found the cocaine. So look you don’t have any reasonable believe, he was armed and dangerous.

Where we usually mess up is, we’ve got a valid basis first stop, they do a terry frisk, there’s some detention or they plainly feel something but it’s got a plainly feel like contraband. Didn’t plainly feel like a weapon, they can’t necessarily go in to pockets.
We get to ask those questions, ‘how do you do this stuff for guilty people? Didn’t they actually have the child porn or the drugs or whatever it was?” Yea! Well just as frank Furter knew about that, he said “It’s safe to say the safeguards of liberty were forged in controversies of people who were not very nice” it’s not designed to protect the guilty but the innocent and force the paternal notion of honest government being more important than any one crime or criminal.

Honest government being more important than anyone crime or criminal. So back to the beginning, young lawyer didn’t argue that case and the assistant DA says “Judge this was a lot of cocaine!” okay! Yeah that guy had cocaine, that’s bad, that doesn’t help society at all. What about honest government? Don’t mean that they’re lying but doing their job right, keeping you honest, being accountable. That is supposed to matter, folks you’re the only ones who make that matter, you’re the only ones who can do it, so if you have to stay up a little late one evening or be in there Saturday morning and have a cup of coffee, look for the issue! The decent in 1950 became the law, he said “if the individual is no longer sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country” it means if you want to vote away all of your rights, you can but maybe you shouldn’t.

What’s scary is that many people might but it shouldn’t be at the hands of anybody in our organization TCDLA, if you’re not a member, please consider joining it, they’d love to have you. This is the most inclusive fun group of people you will ever be around. They will help you for no financial gain or anything, just help you because they’re good and they will be a part of it, stick up through your client, hang in there and don’t let the 4th amendment slip through your
Currently serving on the faculty of the national criminal defense college, it is always a pleasure to have Ed Mullet, please welcome our past president Ed Mullet.

Ed: and thank you for helping me to get addressed here with the microphone and good morning everybody and thank you to TCDLA for throwing this fabulous 4 day party every year. I’ve got pictures; I’ve got pictures good news! We are told that we should consider the newer lawyers and the advanced criminal law course in our presentations and so with that for many of you, the some of this will be elementary. Also the citations to cases I talked about are all in the paper and so I’m not going to stop and give case citations.

Federal courts consider over a 100 thousand criminal cases a year. The Fifth Circuit considers appeals from Texas to Louisiana and Mississippi; I’m going to talk about the court. This is Judge Edith Jones; she was the chief Judge of the Fifth Circuit Court of Appeals until October of this year of last year. This is Judge Carl Stewart, he became the chief Judge of the Fifth Circuit Court Of Appeals affective August 1st. So Judge Jones Carl Stewart, they’re not the same, the chief Judge has to do with approving attorney fees, when lawyers seek compensation and expenses in access of the presumptive limit under the local rules. In the past Judge Jones had something of reputation, a part of her reputation, were cutting attorney fee vouchers. We look forward to, Judge Carl Stewart reviewing our applications for attorney’s fees. Judge Carl Stewart served in the army and then went worked with the justice department as a civil rights prosecutor. Served time in private practice, the son of the post workers from Shree fort Louisiana he became a Fifth Circuit Judge in 1989, he had time before that as a district court Judge and appellant court Judge in the state of Louisiana. One brother’s retired military lawyer, the other Judge, brother is an appellant court Judge in Louisiana. He is conservative but he is an intelligent and fair man and we look forward to Judge Stewart’s administration. In the Fifth Circuit, there are 17 authorized Judge with the only 15th seated, two vacancies now exist. There are 10 Judges who will reach senior status, while president Obama is in office.

Senior status means you reached 65 and you can voluntarily retire, 7 of the Judges who will reach senior status are republicans. It is possible; it is numerically possible for the ultra-conservative Fifth circuit Court Of Appeals to become a more moderate court if president Obama is allowed to make appointments consistent with his Supreme Court appointment so to Myore and Kagans. However to get to the United States Supreme Court you have to pass through the senate judiciary committee. Texas’s senator’s John Connor and Ted Cruise are on that committee. Through senatorial courtesy, senator Cruise can tag an appointment to the Fifth Circuit Court Of Appeals. We may be seeing more Judges from Louisiana and Mississippi. Time will tell.

Is it hard to win a Federal case? Here are the best statistics that I could find. The Fifth Circuit disposed in 2009 of 95,206 cases. 97% of those were disposed of by guilty plea. 3% convicted at trial, well that would be a 100% so my stats are 87% guilty pleas. 5.01% not guilty at trial but 8.5% dismissed. There is then a 1 in 10 chance of winning a Federal case more likely through dismissal than through a finding of not guilty by a jury. When there is an appeal, the Fifth Circuit reversed 2.8% of the 2,692 cases that came to the circuit during the past year granted 12 of 11 petitions for rehearing and 5 of 249 petitions for rehearing on bonk, so when I hear lawyers say “we’ve got built in error, we’re going to win in the Fifth Circuit” I kind of look off in the distance and think that they’ve been reading different statistics than you can find in the publications that I read.

The Fifth Circuit and the Supreme Court of United States transcribed their oral arguments. You can go to pacer and get copy as a brief in the Fifth Circuit, you can go to the Fifth Circuit website and get recordings of oral argument, the good, the bad and the ugly. For example, in a case called Delgado; an on bonk hearing, chief Judge gets to presiding on bonk hearings. Another Judge James Dennis is asking questions on… Judge Genesis is about 77 years old, he’s been on the circuit 15 years, before that he was 20 years on the Supreme Court of the state of Louisiana. This is just an illustration, Judge Dennis is asking questions part way through, Judge Edith Jones presiding stands up, points to the door out leaving the court room and says “Would you like to leave?” and about two passes just later, she says to Judge Dennis “I just want you to shut up”. This transcript picks up about 4 lines into the [claque 42:35-42:36] that’s recorded.
That the amount this court no court has said you can refer just on the basis of the amount of drugs if there’s conspiracy. You cannot cannot cannot cannot ask him questions!

Judge Jones term as chief Judge was schedule to go through December 31st. It’s a 7 year term that goes to Judge who’s been in service at least one year is a 64 or younger and is the longest Judge in service at that time, that’s how Judge Stewart got chosen, but not for this I think but for other reasons, Judge Jones wrote the chief Judge US Supreme Court John Roberts in September, this is the letter I don’t know if you can read it on there, she stepped down from being Chief Judge three months early for family reasons. We do wish her well with her family problems, however she continues to sit as a full time Fifth Circuit Judge and so she’ll, she is still around, we’ll come back to her in a little bit.
We were requested to supply some sort of motion or instrument with our materials and your materials at the back. There is a form motion, this is just the caption that you can see on the screen, the entire motion is electronically embedded in your materials. There are statutory limits on what lawyers can get paid in Federal criminal cases and then some difference to local rules. Many of you attorneys are kind of missing out if you don’t seek to get on your panel and work in the Federal courts. The pay is a lot better in the state court than in the state courts in my judgment so $125 an hour up to $9,700 an hour, $35,000 for rid of Habeas Corpus, a $100,000 in a capital case and all these limits are subject to being increased on motion. This is that motion and the text of the motion is a proposal about how you identify what you need, “We want a law student!” for $30 an hour for 100 hours, we want an accountant for $100 an hour for 50 hours.

We want a seen investigator for 50 hours 75$ an hour. These motions in our practice are fairly routinely granted and of the advantages is that the Judge can and will order interim payments. Now I remember Goldstein’s rule, 1st get the money and 2nd don’t get it back. So if you’re buried in a two year Federal white color crease by appointment, you can at least look forward to getting a check every 3 months ago for your interim compensation for 2 3rds of it, they hold back 1/3rd and pay that at the end when the chief Judge, if the chief Judge agrees to pay your voucher. So in United States versus Snarr in the last term, a death penalty case came up to the Fifth Circuit. Judge Marshal Crown in Jefferson County in senate and Bomat. Everyone who knows Marshal Crown outta Houston Bomat knows that she is kind of in the Judge Blenda Harm and Judge Edith go Jones’s school of Jurus students. She is a little bit to the right of me for example. And she authorizes and recommends that lawyers in a multiple killing that occurred in a Federal penitentiary be allowed total $261,000 for all of their needs to get ready for their death penalty trial. After going up and down, Judge Jones cuts it to $85,000. The defendants are convicted, the Fifth Circuit affirms the conviction.

The Fifth Circuit lays out these rules, if you think the Chief Judge is wrong in a proving and failing to approve fees and expenses in advance, filing application of rid of Devis in the Supreme Court but that doesn’t sound very encouraging, that’s why seeking the interim compensation and not giving it back is a good approach in my judgment. They say that, there’s no pre-trial appealing, appeal so if a Judge refuses your proposed budget… your sort of in a pickle, you need to stay down there because you’re not going … you don’t get a pre-trial appeal. 3rd on appeal from a conviction in the Snarr case, the Fifth Circuit said “Well! We don’t see these defendants would’ve gotten life” or that the result would’ve been different if there’d been more money! So we affirm. Another case cited on there, Kaley versus United States coming up now from the 11th circuit is going to decide whether the Federal court’s the US attorneys can take all the money away from the clients when they’re arrested and hold it for possible [for future] and deprive them of the opportunity to retain council. Look forward to that case coming up.

Child Pornography; in 1994 there were 61 Federal convictions for possession or distribution of “Child Pornography”. In 2011, there were 1880 convictions and that’s just Federal cases. Now! We all know “Child porn is radioactive”, once it’s out there on the World Wide Web, it stays out there forever! It’s not all made in Europe! Some of it was created in United States, some of it many years ago. And three cases on the subject to child pornography, the prosecutorial discretion of the justice department was extended and approved. If you want to see the pictures, if you have an expert who wants to see the pictures too, determine the age of the person! Is it a child? Does it violate the community standards in some way? You have to go to the US attorney’s office; you don’t get to take it home.

If you are… if the client is in possession of material and he is on what is called a “peer to peer distribution network” so that he could access another person’s computer or another person could access his computer, then the mere possession in only one place on that peer to peer system constitutes distribution for purposes of the Federal Child Pornography Laws. How much punishment can you get? Well! You can get one conviction and one sentence per image. So that in a film there may be hundreds or even thousands or countless images but the unit of prosecution according to the Woerner case is each individual picture! A Woerner also an important border search case, a guy comes in across the border it, the raid over McCalin and he has history of sex offense 10 years ago so they take his computer away from it and send it to center through seventy four miles and keep it for a few months while they look at it and of course they find child pornography and his prior was considered by the Fifth Circuit sufficient reasonable suspicion to justify the take away.

Restitution in child pornography cases and victim’s rights; these two things intersect, the important case in the Fifth Circuit is “In rate Amy unknown” and going to the Supreme Court now it has a separate… a different name para-line. There’s a 9th circuit case I think called Kennedy going up also. Stan Schneider and Buck Files had the Fifth Circuit case. Amy is the victim course that’s not her real name and Amy is now an adult person, she’s grown up and she has her lawyer! And pursuing to the victim’s rights act and pursuing to the restitution statute. She goes from court to court making an application for restitution in child pornography cases. The Fifth Circuit said that “If she can show a need for future counseling, then all of her needs have to be paid by each convicted defendant or at least each can be held joined and severally liable”
Now! Her first case was a 1998 and her image is still out there, Buck and Stan argued in the Fifth Circuit that there should be approximate cause. They argued that in the 9th circuit, there’s approximate cause requirement, so you must show an injury to Amy from a particular film! The Fifth Circuit said, no no! Emilio guards are writing, each defendant who’s image is out there can hold, can be held joins to me… each child who’s image is out there can be held joined severally reliable, liable for every image that is on the internet. So Amy is now collected over $600,000, she has $300,000 of judgments pending 3 million dollars pending and there’s still cases to come in the future.

That is because the supreme court has up held all statutes that relate to sex offenses, the Adam Wolchart providing for civil commitment of sex offenders in Federal prison and the SORNA, the Federal sex offender registration and notification act would say that “If a person goes from one state to another and does not register when they should then they can be prosecuted for violation of Federal law”. There’s also the national center for missing and exploited children [nick nick] which keeps a registry so that every time Amy’s image comes up or any child who’s identified by the national center as a victim of child pornography, anytime they are in a case then they’re invited through the victim prosecution act to go to court, attempts and make motion for restitution. There’ve been 3200 cases since 1998 involving Amy’s image and she has received financial awards in a 174 cases.

The Supreme Court just couldn’t grant surd in Amy, last Friday they conferenced and Monday, two days ago they deferred ruling on the motion for searchery and mannered the case to get a docketing fee paid. So we’ll have to see soon in the future, in a case in Texas, a university of Texas student, it’s all out there, one Louis and Enrique Alonso was convicted of possessing the image of Vicky and the government filed a motion in sentencing that she be ordered restitution excess of 2 million dollars.

Mr. Enrique Alonso’s parents came and put up a $150,000 sentencing and the Judge adopted that and awarded Vicky a $150,000 and gave poor Mr. [Alonso] university of Texas Al Paso student, a 5 years sentence, the minimum! So it’s there… if the client’s got the money apparently, he can buy down the senate’s by making peace with his accuser. In a case called Kebodeaux in coming out of the Fifth Circuit, our Court Of Appeals did something about sex offender registration that was very surprising. They held that if a person had a sex offense in the military and when was discharged from the military and had no supervision and no paper, what so ever. And then the sex offender registration law was passed.

It was unconstitutional to punish them under the sex offender registration law for not registering! Case was argued a few weeks ago and the questions of the Supreme Court in the Fifth Circuit case of Kebodeaux indicated to us that the Supreme Court may be getting some idea of what it is like for defendants subject to life time sex offender registration! We know! Can’t find a place to live, can’t hold a job, family’s get scandalized, third parties becomes serious victims and sometimes the factual basis for the so called sex offense would not convince any reasonable person that those consequences for life time are justified. Justice Sotomayor can congress require all convicts to register for life. Scalia can congress require registration for all crimes. Alioto, how can the government do this for person no longer connected to the armed forces. Justice Roberts! Is every in the military subject for the rest of their life to Federal jurisdiction? Justice Kagan disappointedly thinks maybe so! Because these are civil remedial measures. Justice Kennedy, now concerned about exposed factors to the law, something that in their previous cases seemed to be not much of a problem to them. So look for the Texas case, Kebodeaux case out of the Fifth Circuit to possibly limit national sex offender registration laws.

Criminal law in Texas, purposes of sentencing, we’ve all heard it a 100 times from Texas Penal Code. We use it in voir dire, do you favor punishment for deterrence, do you favor punishment for rehabilitation, it’s almost automatic.
The Federal purposes of sentencing are different, they are lofty and they have sort of two important things about them and they’re supposed to book a world, where the guidelines are not always strictly followed. One is, the rule which I think Margie Myers taught me as the Parsimony rule. It’s down in the first paragraph of 35.53A, “The court shall impose a sentence sufficient but not greater than necessary to comply with the purposes set for the paragraph” there’s a typo in there, it says to company with the purposes which the statute says “To comply with the purposes set forth in paragraph 2 of the section”. So, Federal Judges are supposed to give this lowest sentence they can and then the Federal Judges are instructed under booker to begin with the guidelines and then go to some of the purposes here.

But none of these purposes happen to directly include anything about “Rehabilitation” as a purpose to go in to prison. So the Fifth Circuit determined, now 4 times within the past year that Federal sentencing is not for rehabilitation, it’s not to retaliate against a wrong doer and it’s not because the Judge always does that and yesterday, yesterday the Fifth Circuit in a published opinion called “Windless”, windless ruled that in accessing punishment a Federal trial Judge may not look at mere arrests! Cannot say as this Judge did, I see you’ve been arrested for this about 5 times and I’m considering that in my sentence. The presentence investigation report affective yesterday morning and windless says “There must be narrative description of the events under pending previous arrests” or it is reversible error for the trial court to rely on reversible arrests in determining punishment in Federal cases. Now…back to that rehabilitation, I got to play this image for you and a… in United States versus Garza, a young women went in to a court in Texas for sentencing and the Judge said “Well this has to do with…this is revoking her supervised release and extending her punishment”

I want to give you enough time that you can participate in a 500 hour substance abuse problem. I want to help you get rehabilitated and she objected to that, she said
so the Fifth Circuit says “Can’t consider rehabilitation in determining what proper punishment will be in a case called “Grayson Rosales” the Fifth Circuits came to a context where a Judge gave a 70 month sentence out in El Paso!

Now a Federal sentencing hearing is not, a Federal sentence is not done when pronounced. It’s done when the sentencing hearing is finished. So that the government can object and say Judge we think you should give more. The defense could say we think you should get less. We want a higher fine, we want more time, we want less time, so in the Grayson Rosales case, the Judge gave a sentence and the defendant said “Why’re you giving me so much time?” the Judge said, “I think that’s appropriate”. He said, “No!” and the Judge said “I think you’re a lair, I think you have a horrible attitude, I don’t think you have any business being in the United States, you come in to do nothing but serious crime, serious crimes, you don’t like your sentence? Okay! I’m going to change it” and the Judge worked it out from 78 months to 108 months, he added 3 years on because of what he described as the bad attitude of…

Francisco Hernandez

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