Dallas Criminal Defense Lawyer Blog

I'm amazed on how banal DWI blood warrants have become. Maybe I shouldn't be. Look how far we've come in just a few shorts years. The TSA molests plane passengers without cause, and it's largely a non-issue. The police can demand that you give them your blood, and few seem to care. We've had DPS drones deployed for while (since discontinued) and... no one cared. I'm wondering what it willl take before privacy and liberty enter our political lexicon. Is there anything the public won't suffer in the name of public safety? Moving on.

Let's talk blood warrant appeals. Today's CCA case of the day is Sanchez vs. State-

What happened? A judge from Montgomery county signed a warrant to take Sanchez' blood in Harris County.

Holding- You can't do that.

Why not? That's where it gets complicated. The State argues that it's ok because judges can issue statewide arrest warrants, inter alia. Defense says no way because judges have limited power through the Texas Constitution. I'll let the court explain.

The State's argument asserting that the search warrant should be treated as an arrest warrant is without merit. The State ignores the practical differences between an arrest warrant and a search warrant. An arrest warrant protects an individual from an unreasonable seizure of his person and can be issued statewide based upon the assumption that a person is not likely to stay in the geographical proximity of his alleged offense for an extended time. See Steagald v. United States, 451 U.S. 204, 2131981); id. at 225 (Rehnquist, J., dissenting). In contrast, a search warrant is issued to protect an individual from an unreasonable search when the particular location of the item is ascertainable. Id. at 213. These differences arise because a search affects a person's

Some statutory county courts are composed of more than one county. TEX. GOV'T CODE §§ 25.2601-.2606. The laws relating to statutory county courts (including those articulated above) apply equally, with minor exceptions, to such multicounty statutory county courts. Id.

§§ 25.2601(b), 25.2606. Therefore, the jurisdiction of a multicounty statutory county court to issue a search warrant encompasses, but is limited to, the counties of which it is composed. generally less intrusive than a search. See Segura v. United States, 468 U.S. 796, 806 (1984). Consequently, in this case, an arrest warrant would allow police to arrest Appellant but not to draw a sample of his blood. The compelled extraction of blood infringes on Appellant's expectation of privacy, so before that sample could be taken, a search warrant (not an arrest warrant) was necessary to protect Appellant from an unreasonable search of his blood.

I like ruling for a couple of reasons. Not only because the defense won, but also because search warrant should be limited to judges who are accountable to the local legal community and voting public.

An area not addressed in the opinion is that judges should be somewhat familiar with the area in which they issue warrants. An El Paso judges issuing Texarkana search warrants makes no sense. I think it helps a judge make a probable cause determination if she has a history with the area and local law enforcement.

Here's a paragraph that makes my libertarian blood boil.

So, while the initial stop itself was illegal (emphasis mine), Grijalva never went beyond the bounds of what would have been constitutionally permissible had the stop in fact been justified at its inception. Under these circumstances, applying the law, as we have explicated it in this opinion, to the undisputed facts of the case in our de novo review, we conclude that the behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee's outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee's pants pocket, thus purging the primary taint.

The cops acted illegally, but that's ok. Ugh.

Today's case of the day is Mazuca vs. State, from El Paso.

What happened?
The cops pulled over Mazuca for having broken taillights. A quick aside. It seems to me that tail light problems are the new favorite for pre-text stops. If the cops pull you over and tell you your tail lights are out (or dirty), there is a decent chance they think you are transporting narcotics. Back to the story.

Mazuca's defense lawyer had a pre trial suppression hearing and the judge held that the there was no traffic violation and the Officer wasn't credible. Ergo, the stop was illegal and the seized contraband (meth) was suppressed. But wait.... Mazuca had warrants out for his arrest. The State appeals and loses the first round, but then comes the PDR, and the CCA reverses everyone.

Holding- You already read that, it's at the top. Basically, CCA has created an impossible standard for the defense. The defense now has to prove not only that the cops acted illegally (which, under 38.23 should be enough). But that the police illegally pulled someone over on purpose. Pre text stops (in which the cops want to pull you over and follow you until they spot a traffic violation), are still legal, but it appears that illegal pre text stops can result in suppression, even with a warrant.

Constitutional violations are becoming more of an intent crime. For example, if the police destroy the video in your case, that's ok unless you can show "bad faith". Which, guess, what? That never happens. So in essence, we have yet another exception to the 4th Amendment, and our State's exclusionary rule.

It is campaign season, and in our one-party state strict constructionism has become a judicial virtue. With that in mind, here is the Texas exclusionary rule.

38.23 EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

38.23 is brilliant in it's scope and clarity. However, 38.23 is a living breathing ever-changing statute, from which new exceptions and limitations spring worth with abundance. Now we have the "illegal stop with a warrant" exception. You can't find that in the statute, but that's what judicial activism does. Somehow I don't think the Tea Party is going to be outraged. Which is too bad, the Second Amendment matters, but so does the Fourth.

But hey, we found some meth so now we are one step closer to winning the drug war right?

One reason Texas convicts so many innocent people is our lax standards for allowing the State to admit "scientific" evidence at trial. Given the State's nearly limitless resources for experts, supply is racing to catch up with demand, whether or not the science is sound or not.

Trial courts are supposed to be the gatekeepers of scientific evidence and limit what the jury can hear. That sounds great in theory, but in practice the State almost always gets in whatever "expert" they designate. It was this atmosphere that allowed the complete bullshit "science" of "dog scent lineups" to pollute our courtrooms.

The latest victim of junk science is Michael Arena. Michael was wrongfully convicted (his "victim" has completely recanted, stating that she was coerced by her mother to lie) of sexual assault, and sentenced to 20 years.

The back story is worth reading and highlights how easily sexual assault allegations can be manufactured to gain advantage in child-custody cases. Michael was a juvenile at the time, and his writ of habeas corpus (basically saying "let me out of jail I'm freakin' innocent!") went to the Texas Supreme Court, instead of the Court of Criminal Appeals (which is no small distinction).

You'd think that when the State's star witness admits to lying that would be enough to get you out of prison. In Texas, not so much. Our State's conviction machine has no reverse gear.

On to the junk science...

One of the areas ripe with pseudo-science nonsense is when "experts" try to guess how dangerous a defendant might be in the future. The truth is, no one really knows what someone is going to do in the future. But the State has unlimited funds to throw around, and an industry has sprouted up to give the State what they want, "future dangerousness" testimony.

In Michael's case, during punishment, an "expert" testified that Michael underwent an Abel Assesment which showed, with 85% accuracy, that Michael was a dangerous pedophile who would more than likely reoffend. The jury took notice and sentenced Michael to 20 years in prison.

What is an Abel Assesment? Basically, an individual looks at pictures on a computer screen. If you look too long at the pictures of children, you're a pedophile. You're probably not surprised to learn that the Abel has a very high error rate. From the opinion...

See United States v. Birdsbill, 243 F.Supp.2d 1128, 1135-36 (D. Mont. 2003) (describing later version of the Abel Assessment's error rates of 21-22% and 32% as "poor" and finding test unreliable); United States v. White Horse, 177 F.Supp.2d 973, 975 (D. S.D. 2001) (stating that 24% false negative on Abel Assessment "does not assist the jury" and finding test inadmissible); State v. Ericson, 13 A.3d 777, 781-82 (Me. 2011) (affirming trial court's exclusion of testimony regarding Abel Assessment and stating that error rate between 21% and 32% raises significant concern about reliability).

The court concluded that the "expert's" Able assesment testimony should not have been allowed, and that the "expert" did not testify truthfully. The case was remanded for a new sentencing hearing.

Unfortunately, this case may not be the death of Abel in Texas, as this case was uniquely focused on juvenile defendants. However, if you are faced with an Abel "expert" make sure your attorney is familiar with the latest research and this opinion.

Some old news from last week, the Kemp, Texas police department is being shut down due to budgetary concerns. This isn't the first small town Kaufman County PD officer to face massive layoffs. Last year, almost the entire Combine police force was jettisoned.

How will this affect your Kemp PD criminal case? It depends on where these officers go and if they are available to testify in the future. If not, that could present some challenges for the State. Especially for the typical "pull the car over for innocuous traffic offense, find dope" case. You have a right to confront the witnesses against you, cops included.

In the interim, KSO will take over for Kemp PD.