Dallas Criminal Defense Lawyer Blog

Recently, Shelby County District Attorney Linda K. Russell, found herself on the working end of a civil rights lawsuit for allegedly supervising a highway robbery (asset forfeiture) scheme in which casino bound minorities where pulled over for traffic violations and then threatened with prosecution if they didn't sign over whatever cash they had to the State.

Linda wanted to use tax dollars (and forfeiture cash) to defend her case. Fortunately, the Attorney General put Linda in the same position as the victim of asset forfeiture- Linda will have to pay for her own defense sans government funds.

What happened in Shelby county is indicative of the problems with Texas AF laws. When you combine government greed, racism, and a lack of protection/due process for defendants you get malfeasance and corruption every time.

From DMN-

James Morrow was driving to Houston to visit his cousin when he was pulled over in the East Texas town of Tenaha for "driving too close to the white line."

The officer, Barry Washington, searched the vehicle and asked Morrow if he had any money, according to court records. Morrow, who is black, had $3,900. He said the officer took the cash and drove him to the Shelby County Jail.

That's where authorities threatened to prosecute him for money laundering unless he agreed to forfeit the money, Morrow said. He was never charged with a crime in the 2007 incident, and when he pursued legal action, he got the money back.

Driving too close to the white line isn't a crime in Texas. Still, James was detained and robbed by local police for alleged "money loaundering". Nice.

It gets worse.

Tenaha is a town of 1,112 along a U.S. highway that links Houston with several gambling destinations in Louisiana. Several motorists had large amounts of cash because they were en route to or returning from Shreveport casinos, Guillory said.

Other plaintiffs include an elderly black woman from Ohio who said that after being threatened with money laundering charges, she signed a document authorizing the seizure of $4,000; and an interracial couple from Houston who alleged that authorities said they would place their two children in foster care if they didn't hand over $6,000

What's the law on asset forfeiture in Texas?
Texas government theft/asset forfeiture laws are found in Chapter 59 of the code of criminal procedure. Basically the state can seize "contraband" or property used in the commission of, or property that is the profits from a crime.

Wouldn't that require an actual conviction for a criminal offense? Not so fast. No conviction is required to steal your property. In fact, the State doesn't even have to actually charge you with a crime to file an AF case.

Worse, even if you are later acquitted (found not guilty), the State can still try and steal your property. Forfeiture hearings are civil, and the State need only show by a preponderance of the evidence that your property is contraband.

Most asset forfeiture cases are unopposed. AF victims are mostly poor and can not afford an attorney to fight the seizure. These defendants find themselves alone against the awesome power of the State's forfeiture machine. In civil cases when you don't show up the Plaintiff gets a summary or default judgment. In my experience many, if not most, forfeiture cases end this way.

A portion of the money, cars, and property seized become part of a DA slush fund for Xmas parties etc.

This monetary incentive, combined with the lack of court appointed counsel for the victims of AF, create the perfect environment for malfeasance.

Personal friend and criminal appeals guru has reentered the world of private defense practice. His website could use some SEO magic, so here it goes.

www.souzalawdallas.com

Chris designed his own website, I outsourced mine to Justia. Check out his page of significant decisions. It's pretty significant. Chris is fluent in Spanish, a former ADA, a former public defender, and a has earned a solid Avvo review from yours truly.

You know what I enjoy? Emailing politicians and asking them to support my favorite pet causes. I can't tell you how many marijuana reform emails I've sent Joe Barton (he's not coming around on the issue at all). NORML, MPP, StopTheDrugWar.Org etc make it easy to contact your rep with a simple fill in the blank form.

Recently I asked future Texas governor Kay Bailey Hutchinson to support SWAT reform. Letting LEO play GI Joe to serve warrants on private residences is dangerous and an insult to our Constitution. This list of drug war casualties is littered with SWAT victims.

How does KBH feel?

Dear Friend:

Thank you for contacting me regarding responsible SWAT reform. I welcome your thoughts and comments.

I fully support the brave men and women that serve on SWAT teams in police departments throughout this country. They partake in some of the most dangerous missions that police departments confront. Their tireless dedication and sacrifice to uphold and enforce the laws of this land are commendable.

Internal reviews of policies and reforms relating to the overuse and reliance on SWAT teams would be beneficial not only to police departments, but also to taxpayers. The use of SWAT teams should be mission-specific. Any ambiguity in that mission should be addressed and corrected. Should any legislation on this topic be created in the Senate, you may be sure that I will keep your views in mind.

I appreciate hearing from you, and I hope that you will not hesitate to contact me on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

Are there police in your neighborhood? Are you concerned about the rampant Constitutional violations that come from over zealous policing? How can you protect yourself from being a victim of unscrupulous law enforcement? Start by ordering "10 Rules for Dealing with the Police" from Flex Your Rights.

This is a must see film for anyone looking to avoid becoming another casualty of the police state.

Steve Blow published a column on the notorious I 45 speed trap. I was happy to be interviewed to highlight the highway robbery in Ellis County.
I spoke with Steve two weeks ago and reminded him that we met in 1995 at a high school journalism conference. I was a columnist for the Eagle Eye looking to hone my craft. I remember Steve's advise to this day- write columns like a letter to your friends. On to the speed trap.

I live in Ennis and my caseload is mainly in Dallas and Kaufman. Going to work in Kaufman means a 26 mile trip on state highway 34. The speed limit on this two lane country road reaches 65 mph. The limit is lower when passing through Scurry/Rosser.

When I go to Dallas I take I-45 north, an expansive 6 lane divided highway. The speed limit on I-45 N? 60 or 65 mph. Guess which road is infested with speed traps?

Here is the speed trap formula; government greed + ridiculously low speed limit = Speed Trap

The 60-65 mph speed limit on I-45 is almost universally ignored by commuters because it is meaningless. Going 70-75 (as most non local traffic does) creates no risk to traffic safety.

However, it does create a situation where LEO can ticket as many motorists as they want. The only thing that keeps LEO from writing more tickets is the Texas speed trap law that limits the % of local government revenue that can come from traffic citations.

LEO always has the same "this will save lives" reaction when criticized. Here is Palmer Police Chief John Zaidle explaining why you want his officers robbing drivers for speeding.

"We do make some revenue off the highway," conceded Palmer Police Chief John Zaidle. "But we have fatalities out there. And my feeling is the more we're out there, the less we will have of that."

I'm calling bullshit on that one. Mr. Zaidle, your speeding tickets have no effect on fatalities. However, they do have a devastating effect on commuter's wallets. This is a recession and drivers do not have a spare $200 for Palmer to steal.

Just because you can ticket drivers ad naseum, doesn't mean you should. Mr. Zaidle highlights why we need limited government and greater police oversight, because even the simple power to ticket drivers will be abused.

Government greed, not safety, is why Palmer PD harasses motorists on I-45.

Further reading-
Ferris Police and the I-45 Speed Trap
I-45 Speed Trap Follow Up

I don't have any inside information on the TABC Rainbow club raid. I did notice that the TABC was checking for public intoxication when they swarmed the gay bar in Fort Worth.

I've received a decent number of inquiries from PI defendants who claim to have been abused or unlawfully arrested by law enforcement.

I've had enough experience with criminal law to know that not every tale of police misconduct is accurate. I've also had enough experience with law enforcement to know that PI can be a great cover for malfeasance.

What makes PI so ripe for abuse?

First, it provides a built in defense for the cops- "This guy was drunk". It goes straight to the credibility of the defendant/victim. No one likes drunks, so the police can slander you just by arresting you.

Second, our appellate courts have expanded the definition of what a PI is to cover nearly any situation in which a person is in public and has been drinking. Having no standard allows the police to arrest whoever pisses them off and call it PI.

Third, PI cases rarely have video evidence. Usually the only witnesses are cops, the defendant, and maybe the defendant's friends.

I had a PI case in Fort Worth dismissed recently. A quick thinking friend of the defendant filmed the arrest on his phone. Guess what? No one was intoxicated. The defendant wasn't guilty of PI, but POP. He pissed off the police by refusing to talk with them and was arrested for PI.

What's the law on public intoxication?
From 49.02 Texas Penal Code-

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

That seems like a fairly high bright line standard that requires a showing of danger to someone. Fortunately for police our pro conviction appellate courts have expanded this law to the point of absurdity.

Here are two cases that highlight the transformation of PI in Texas.

Where defendant was walking down the middle of the street in the middle of night, appeared glassy-eyed and unsteady on his feet, arrest for public intoxication in violation of Tex. Penal Code Ann. § 49.02(a) was proper. Williams v. State, 1997 Tex. App. LEXIS 3314 (Tex. App. Houston 14th Dist. June 26 1997).

This is a standard prosecutors cite often, that if you stumble while walking you are PI. This one decision created a new crime in Texas, stumbling after drinking in public.

It gets even worse...

A person commits the offense of public intoxication if that person appears in a public place while intoxicated to the degree that he may endanger himself or another; the danger need not be immediate, it is sufficient if the accused renders himself or others subject to potential danger. Null v. State, 1997 Tex. App. LEXIS 2646 (Tex. App. Houston 14th Dist. May 15 1997).

Remember, it's not legislating from the bench when you expand the scope of a criminal law beyond recognition, that's strict constructionism. The statute doesn't mention "potential danger", but pro conviction judges took out the magic appellate marker and added it.

Overbroad laws invite abuse and subject the public to arbitrary harassment. If you have a violent, homophobic, or just an asshole of a cop and you give him the arbitrary power to arrest anyone for PI you can expect violent, homophobic and assholic behavior.

The problem is amplified when you add the mutaween zeal of TABC officers. I've never seen grown men so exited to raid teenage keg parties or arrest bartenders. Really, no one cares guys. It's bad enough we subsidize TABC strip club "undercover" operations. TABC's new policy of raiding bars for PI enforcement has disaster written all over it.

Texans need the "old" PI law back, and protection from the moral busybodies at TABC.

It's that time of year when TXDOT rolls out the Click It or Ticket revenue/harrassment campaign. The ads are typical police state propaganda- The cops are watching you, they are coming to get you, change your behavior or the state will send the police to steal your money!

Texas drivers can thank the federal government when they get pulled over. Local law enforcement gets federal funds to pump out tickets, which fills up the coffers of local governments. It's a win/win for government at all levels. The only losers are the hard working Texas drivers caught up in this ticket pork scam.

How does TXDOT sell this steaming pile to the public? By telling you how much they care. (At least it's not "for the children").

Click It or Ticket isn't just about writing tickets—it's about keeping Texans safe on the road. Federal and state officials set aside funds we put to work to alert the public about buckling up. One way to do that is to send more officers out to help remind motorists to buckle up. Websites like these, TV and radio ads plus news articles and shows also help remind motorists to make buckling up a habit, too.

Why should you? Buckling up is your best bet to prevent serious injury or death in a crash. Crashes where the victims aren't wearing safety belts can be pretty bad. People who aren't buckled up are often thrown out of their car or truck, and sometimes the vehicle rolls over them.

Crashes can be..."pretty bad"? That's the justification?

You know what else is "pretty bad"? When some crazed LEO arrests a Texas driver for not wearing their seat belt. We set the stage for such malfeasance when we pump LEO full of "this will save lives" propaganda and then hand out federal dollars maximize the numbers of tickets written.

The recession makes this year's campaign even crueler. Inevitably, some hard working Texans won't be able afford their seat belt fine. Many will end up with a warrant. In a Mommy Dearest move our loving bureaucratic parents at TXDOT are going to arrest the very drivers they care so much about.

I have discovered the precise formula to measure the outrage felt by liberty minded individuals over a news event regarding government malfeasance.

EA x SOL= $#@!

EA= the enforcement action taken by the government. Basically, what means are used to achieve the government's goal. The lower end would of this scale would be public service announcements, at the higher end waterboarding at GITMO.

SOL= Stupidity of law. How stupid is the law being enforced? My feelings about consensual crimes are well known. At the low end of this scale would be crimes with actual victims, the higher end would include malum prohibitum offenses. The highest score would probably be revenue generation "crimes" like truancy enforcement.

$#@! is the outrage felt by people who value liberty, privacy, freedom etc.

This video would probably achieve one of the highest values possible (until we send a DISD truant to GITMO).

Visit SWATReform.org to find out how to help.

Kaufman is the county east of Dallas. Kaufman county is served by three major east-west highways; I-20, 175, and I-80. These highways see a steady flow of Dallas commuters, locals driving to Dallas and back for entertainment, Shreveport gamblers, and drug couriers. Basically, money comes from the east to Dallas, drugs flow out of Dallas towards Atlanta.

Kaufman law enforcement officers (LEO) dutifully carry on the futile sysiphean quest of highway drug interdiction. KC LEOs regularly intercept drug couriers and most of the cases shape up the same way. Let's look at the similarities.

Dirty license plates and out of state plates
LEO only needs reasonable suspicion of any traffic violation before pulling a driver over. The pretext stop classic in KC is the dirty license plate light. If you are driving with Louisiana plates I'd suggest you check your license plate light before entering Kaufman county.

What were you doing in Dallas?
Kaufman LEOs know that Dallas is the the Sam's Wholesale club of narcotics. If you are on a quick one or two day trip to Dallas the cops are going to assume you are riding dirty.

In Texas you are under no obligation to share travel plans with police. It's always better to shut up than ramble on. If the driver has any criminal history LEO won't believe the story anyway. Popular reasons for Dallas travel are job interviews and family functions. If you are going to tell the police you went to a family reunion over the weekend but you don't have any luggage in the car that raises a red flag.

Sit down and shut up
LEO can smell fear. Cops equate nervousness with guilt. If a suspect is over talking, has shaking hands, or gets out of the car before the police walk up it's usually downhill from there.

The Consent Search
Once LEO hears your lame ass trip to Dallas story and sees your hands shaking he will move in for the kill- the consent search request. I've written about this ad naseum. Here is the cliffs notes version- never, ever, give LEO permission to search your car.

The DWI roadblock bill has passed through the Senate is working it's way through the House as I type this. The roadblock, I mean "checkpoint" bill is SB 298.

So how much security are we getting for our freedom?
From DMN and State Senator John Carona (R-Dallas)

"We're not taking anyone's rights away. We're trying to make sure my right and your right to drive safely is protected," Carona said....

Checkpoints could save 300 lives a year in Texas, Carona said, citing federal highway safety experts.

I beg to differ. In fact, you are taking away this right

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..

and replacing it with a new "right" to be stopped without cause and forced to prove yourself not intoxicated. I've searched the US and Texas constitution for the "right to drive safely" and I couldn't find it. Maybe John can show me where he go that from.

What's in 298?
There are limitations on these these random suspicionless searches of Texas drivers. They are only allowed in counties over 250,000. Only one a year per location. The police have to stop cars at random (every third or fourth etc). Here are some other "protections" that caught my attention.

From 298-

(i) A peace officer at the sobriety checkpoint may not
require a motor vehicle operator to perform a sobriety test unless
the officer has reasonable suspicion or probable cause to believe
that the operator is in violation of Section 49.04 or 49.045, Penal
Code. A peace officer who requires or requests an operator to
provide a specimen of breath, blood, or urine must comply with
Chapter 724, Transportation Code.

(j) Unless a peace officer has reasonable suspicion or
probable cause to detain a motor vehicle operator for a criminal
offense, the time during which an officer makes an inquiry of an
operator should not exceed three minutes, and the total time during
which the operator must wait to pass through the checkpoint should
not exceed 10 minutes. The law enforcement agency shall make
reasonable efforts to reduce these periods to not more than one and
five minutes, respectively.

On a side note, SWAT home invasion searches have less statutory requirements than a roadblock. But that's for a different post.

Notice the weasel word "should". "Shall not exceed three minutes" would actually mean something. "Should" is a suggestion, and I predict the appellate courts will treat it as such. If there really was a three minutes limitation why not just lock the windows and refuse to cooperate for 3 minutes?

The only "shall" requirement is to take "reasonable efforts" to keep these between one and five minutes. I don't expect zealous enforcement of that requirement by our appellate courts.

Prediction 1- I predict the standard for reasonable suspicion at a roadblock is going to become; "slurred speech, odor of alcoholic beverage, and bloodshot eyes." Those are three most common boilerplate signs of "intoxication" listed in police reports. And, what else can you observe from a driver sitting in a vehicle?

Prediction 2- When Senator Corona's 300 fatality reduction doesn't materialize a new "tougher" DWI checkpoint bill will be drafted doing away with the already anemic "protections" this bill offers. Once you get the public used to roadblocks, it's a much easier sell to get "tougher" at roadblocks. Why not demand a breath sample of every driver? Or a blood sample? Or make all drivers take SFSTs?

Prediction 3- Once we legalize random suspicionless searches there will be a call to expand to other causes du jour. It won't be long until another "crisis" demands it's own version of a checkpoint.

Why not look for illegal immigrants at a checkpoint? Why not search for drugs at a checkpoint? Why not search for sex offenders at a checkpoint? Why not search for terrorists, nuclear weapons, illegal handguns or illegal sex toys at a checkpoint? Why limit this to cars? Let's search passengers on the DART rail. Or search private homes for drugs, child pornography, or "passion parties".

Do roadblocks work? Depends on what the goal is. Even MADD admits the "primary" goal of a checkpoint is deterrence. From MADD.org

The point of a checkpoint is to deter primarily and to enforce the law when required. Sobriety checkpoints are higher visibility and raise the perceived risk of getting caught more than do roving patrols or saturation patrols.

MADD is right. They can scare the shit out of Texas drivers by stopping every car without reason and treating each driver like a criminal. Does that mean we should engage in big brother security theater? Using fear to change public behavior has catalyzed the shift from peace officers to law enforcement.

Do roadblocks prevent fatalities?
Probably not. In fact roadblocks have proven so ineffective (and so expensive) that communities are calling to end them.

And why would we expect roadblocks to reduce fatalities? If you want stop dangerous drivers cops should patrol the roads looking for dangerous driving behavior. If you want to randomly harass the public, then put up a roadblock.

Me on the radio-
I was just interviewed by ridindirtyradio.com about Texas checkpoints. I have to say it made me fairly nervous to be on the air. I had not been on the radio since the summer of 2002 when I did a few shifts for the Texas Tech student radio. (Keep it locked to the left, 88.1 FM).

I was on with Ken and Heidi aka ridin dirty radio, 830 AM in Los Angeles. I probably talked way too fast to make any sense. We discussed the roadblock bill, the driving culture in Texas, and the role parents could play in preventing DWI.

They asked if the Texas-OU game would have a checkpoint. I stated that I doubted the alumni would allow it. My guess that there will be an inverse relationship between political influence and roadblocks. Can you see Jerry Jones allowing a checkpoint outside his new stadium? Right.

NO NO NO.
Never, ever, for any reason, go to the police station (or sheriff's department) and make a statement. If the police have called and asked you to come to the station quit reading this and find a criminal defense lawyer now.

"Won't the police think I'm guilty if I get a lawyer?

I hate to break this to you, but the police already think you are guilty. In fact, they know you are guilty. They just want a nice confession before sending your file to the DA.

Detectives know they can make you confess, they just need the chance. Don't take my word for it, here is a cop telling you how he can got suspects to confess.

I have often wondered why so many suspects voluntarily drive down to a police station, sign Miranda waivers, and put up with all sorts of good cop bad cop nonsense before confessing. Allow me to speculate.

1. Naivety. They don't have any experience with the criminal justice system. There is a common belief, and a desire to believe, that law enforcement wants to help us. Another popular misnomer is that non cooperation will somehow hurt their case, or that they have no choice but to cooperate.

2. Good cop. A detective may tell you he wants to get "your side of the story" or just "ask you a few questions." Don't buy it.

3. Bad cop/Threats/Fear. Detectives will threaten to file more serious charges, let the judge/DA know you weren't cooperating, or issue a warrant and arrest you if don't come and talk to them right now!

4. Hubris/"I'm smarter than these cops". The police are going to stick you in a room with the implication that you can't leave and run through their interrogation manual until you confess. If you deny wrongdoing they will take your story and begin investigating how it can't possibly be true. This isn't Seven, or Silence of the Lambs. You are not going to make the police your pawn in a psychological crime thriller.

5. "Only guilty people confess, I"m not guilty so I'm fine." Not quite. Law enforcement techniques have advanced to the point that the innocent confess to crimes.
Why Do Innocent People Confess- Psych Central
When an Innocent Confesses- Scientific American
Why do the innocent confess to crimes?- Grits for Breakfast

Defense lawyers need to do a better job educating the public on what police threats/requests they must adhere to, and which they can refuse. For example, you have to ID yourself in a traffic stop, you don't have to consent to a search of the car etc. We have given police so much arbitrary unilateral authority that much of the public believes they must cooperate in their own prosecution. Not so. If the police are calling you about a crime quit reading this, and call an attorney.

Update- Somehow, I forgot the excellent work FlexYourRights.Org has done teaching the public how to handle police encounters.

Another Grits inspired post.

CLEAT is the Combined Law Enforcement Association of Texas, the cop lobby. CLEAT 's website lists their legislative agenda, identifying bills they support and oppose. It's no surprise that CLEAT supports longer sentences, less freedom, and/or more tax dollars for policing; all of which fall under the umbrella of "law enforcement." One would surmise that CLEAT would support any bill that results in more law enforcement.

When does CLEAT oppose more law enforcement? When the suspects are cops. They like their blue wall of silence just the way it is. From CLEAT's site

SB 388 Carona Relating to the creation of the law enforcement integrity unit in the Department of Public Safety.
Remarks: OPPOSED: Creates a law enforcement integrity unit in DPS to investigate law enforcement corruption.
Bill History: 02-17-09 S Introduced and referred to committee on Senate Criminal Justice

Call your representative today and ask them to support SB 388.

Story time. Two weeks ago I went on a day trip to the wonderful Fossil Rim Wildlife park in Glen Rose. FR offers a family friendly safari. Like going to Africa without the shots or airfare.

Drivers trek through the Texas hill country tossing food pellets to zebras, giraffes, deer, and sinister ostriches. A giraffes sticking his head in your car should be on everyone's bucket list. I highly recommending FR for anyone who loves nature, and loves sitting in a car while enjoying nature (check, and check).

What should have been a pleasant day trip was interrupted by the Keene, Texas police department. I have never been to Keene, Texas but I speak with certainty when I say that this is a town full of ne'erdowells. Who else would set up a speed trap to steal money from unsuspecting drivers?

I was not driving. A relative who shall remain nameless (attorney/client privilege) guided our car south on 67. It was a uneventful trip until I noticed a police car make a wild u turn through the median and speed off in our direction.

I wondered what the emergency was? Was this officer going to stop a bank robbery or help a citizen in distress? My idyllic notions were shattered when I noticed the cop pulling up behind our car. The emergency was purely financial. Unlike business or individuals who get by on hard work and industry Keene, Texas needed to steal some money.... now.

To enhance their ability to tax drivers the zealots of Keene, Texas have lowered their speed limit to 50 mph on highway 67. The speed limit was a reasonable 65 or 60 on the rest of 67.

Mind you, this is a 4 lane divided highway. It doesn't go through any neighborhoods, there are no red lights or school zones. Finally, there was only one obscure speed limit sign to warn you of the upcoming robbery.

The officer walked up to the car and asked the ubiquitous "is there a reason you are driving so fast?" The driver was polite and handed the required insurance and DL. The officer dutifully checked the license for warrants and came back armed with a citation.

Then Keene's finest went from zealous bureaucrat to philosopher and announced "those speed limit signs are there for your benefit."

"Really?" I thought. You, Mr. Cop, get a badge, a gun, a car, and a nice paycheck to harass drivers for the sole purpose of raising money for the local government and the speed limit is for our benefit. Surely you jest. Self awareness is in short supply at the Keene PD.

I know I am painting with broad strokes. The officer didn't say speed limit signs are "only" there for our benefit, or that he (cop) received no benefit. However, the insult was that this cop wanted a thank you from speed trap victims. It's bad enough that the fine is potentially over $150, they could have kept the smug paternalism.

The militarization of our police force is complete. Dallas Police are using a freakin' helicopter to find an orange painted streaker on Katy Trail.

A few questions-

1. How hard is it to catch someone who is a) naked and b) painted orange! Maybe if cops weren't so busy meeting their daily ticket quota they could spend more time patrolling Katy trail.

2. How much do you think this costs in fuel alone? What's next, using the chopper if kids are toilet papering a house? This was some weird exhibitionist stunt, not a terror attack. There should be evidence of some threat to public safety before we fire up the DPD copter.

Let's see DPD keeps a straight face explaining their overreaction.
Oh, wait, they already did.

Dallas police expressed concern over the incident. "This is very offensive and something that is not funny, not funny at all," Senior Cpl. Janice Crowther told KXAS-TV.

I have to disagree. This is high comedy. Maybe Sascha Cohen doing a bit on Katy trail. I'm worried Senior Cpl. Crowther can't find the humor in her occupation. Here is a clip just for her.

Austin's police chief Art Acevedo, has a plan to expand DNA testing to everyone suspected of a crime. Current law restricts DNA testing to certain felony convictions.

Art's scheme would mean that the innocent arrested would have their genetic code on file in a government database for over eager bureaucrats and cops to pour over at will.

First, being arrested for a crime should not give rise to the forfeiture of one's genetic code. Innocent Texans are arrested every day.

Second, our Texas crime labs are plagued by incompetence and a bias towards helping the state convict. Our state struggles to honestly and accurately maintain relatively simple DWI breath machines. Adding a massive DNA database to an already broken system would only compound the problem.

Finally, the Supreme Court's Herring decision means that the state has no incentive to maintain a DNA database with any accuracy.

I couldn't find any actual bill filed related to this doltish idea. If a bill is filed, we must all speak out to prevent to stop this Orwellian disaster.

Here is the future if Art's vision becomes reality.

You get arrested for DWI. During the book in process you are required to submit a DNA sample. It's a weak case and you are found not guilty at trial.

Meanwhile, there is a unsolved murder with DNA evidence. A crime lab flunkie messes up the DNA samples. The lab tech wants to help the police convict someone so she covers up her mistakes. Her faulty lab tests names you as the killer.

A warrant is issued for your arrest. The police arrest you, and find a joint in your pocket. The DA knows the lab tech is incompetent and crooked, but the prosecutor doesn't inform your lawyer of this. After all, the prosecutor is immune from Brady violation lawsuits.

After a year in jail your defense lawyer finally gets a DNA retest and you are released. However, the state puts you on trial for that joint you had in your pocket, because in a post-Herring world database errors don't invalidate a warrant.

You are sentenced to the usual drug court probation nonsense with weekly NA classes. The stress of the situation leaves you unable to work or perform community service. So the judge throws you in jail for violating probation.

Further reading- Radley Balko on the epidemic of faulty science in criminal cases.

The rise of the paramilitary SWAT team is a testament to the failure of America's criminal justice system. It defines the transition from peace officers, to law enforcement.

One problem with giving the government the power to kick in doors while playing army is that the government can't be trusted to kick down the right doors. "New professionalism" advocates like Scalia would be shocked to learn how often the government wields the shock and awe power of the SWAT team at the wrong location.

Recently I file an open records request on Dallas SWAT wrong house raids. The first report I received detailed an incident from December 2005. The person involved didn't ask for blog publicity, so I won't reveal any personal information.

The victim's story-
The victim was at home with her son. The police came to her door demanding entry. The victim pointed out that they were at the wrong house. The police entered the home without pemission, pointed a gun at her son, and threatened to shoot her dog (Puppycide is epidemic among SWAT teams).

This complaint prompted an internal affairs investigation. IA interviewed the cops involved. Can you guess their version of events? Do you think the officer's testimony was all on the same page?

Cop's story
The officers admit to approaching and entering the wrong house. That's where the similarities end. The officers claim to have received permission to enter and search the house. Furthermore they deny pointing a gun at anyone and threatening to murder any dogs.

Amazingly, each police officer testified to the same version of events. That must make it true, right!

Inconclusive
How did internal affairs rule in this case? "Inconclusive" with "no violation of department rules." The main reason for this decision was "conflicting testimony." That is, the cops who entered the wrong house wouldn't admit to the other mistakes they made.

The standard applied by internal affairs was preponderance of the evidence. IA ruled there was not a 51% chance the victim's story was true.

IA obviously discounted the testimony of anyone who was not law enforcement. The victim wasn't a criminal, she was a citizen whose home was wrongfully invaded by SWAT. Is it not 51% possible she was telling the truth? Or is a police confession required?

This is why all police encounters, much less home invasion SWAT raids, should be recorded. Too often a criminal trial comes down to an officer's testimony. Just like IA many jurors will decide conflicting testimony in favor of the person in uniform.

More reading: Grits has this report on the Dallas Police no snitching culture.

More fun with my new copy of the Highway Patrol Operations Manual. I blogged earlier about how to handle a DPS/police request for a consent search during a traffic stop.

Here is what DPS has to say on the subject. This is what they are supposed to be doing during a traffic stop.

02.05.00 VIOLATOR INTERVIEW 05 .01 Troopers will follow the seven-step violator interview unless circumstances exist that make the use extraneous or nonapplicable. The steps will be used in the following order : 1 . Greeting and identification of the agency 2. Statement of violation committed 3. Identification of driver and check of conditions of violator and vehicle 4 . Statement of action to be taken 5 . Take action stated 6 . Explain what violator must do 7 . Leave

Hmmmm..... Some important steps are missing. Having viewed more than a few DPS traffic stops let me offer a more realistic "violator interview" protocol.

Violator Interview
1. Only stop vehicles you believe may have drugs in them. Try not to racially profile, but profile every other way you can.
2. After the stop think of a reason to justify said stop. If all else fails, allege the license plate light was not bright enough, or speeding.
3. Run the DL license and pray for an outstanding ticket warrant. If a warrant comes back arrest driver and start digging through the car!
4. If no warrant, pull the driver and passengers out of the car. Get into "good cop" character and ask if they have any hand grenades, dead bodies or drugs in car. Ignore yes answers on dead bodies or grenades, ask about drugs again. Remember, there is no War on Dead Bodies, or War on Hand Grenades. This is a drug war and you are the front line to stop consenting adults from using, selling, or possessing drugs! Finally, Mirandize no one, lest they realize they have the right to not answer these questions.
5. No confession? Ask for consent to search. Threaten to call out drug dog.
6. If permission is denied, ask again, but louder.
7. No consent? Consider writing a ticket, calling out the trained-to-alert drug dog, or arresting someone for no seat belt (Lago Vista).
8. Write a ticket, arrest, and/or search.

Today I received my new 841 page DPS general operations manual on CD. I thought I knew most of DPS' crime investigation techniques. This section on hypnosis took me by surprise.

25 .05 .00 GENERAL The use of hypnosis as an investigative tool for law enforcement is a fairly recent development. Although it was used for this purpose at various times, there was no concentrated effort to develop it as a practicable working tool until about 1970 when the use of hypnosis in several major cases by the Los Angeles Police Department caused a number of other police agencies to examine the possibility of such use . Currently many major police agencies are using hypnosis to some degree in criminal cases.

INVESTIGATIVE HYPNOSIS
05 .02 These guidelines are designed to outline the criteria to be
used in the selection and training of DPS personnel to use hypnosis
and the use of hypnosis by Department personnel .

There are further sections on how to run the hypnosis session, and who not to hypnotize (those with health conditions, and the defendant), and the various hypnotism related reports that are required. I will probably request the Hypnosis Oversight and Training Committee's reports to see if this program is actually in use.

My lay opinion is that hypnosis is quackery. However, if DPS officers are being instructed to consider hypnotizing witnesses I'll have to keep my cynicism in check and do some research.

Assuming hypnosis is real couldn't the hypnotist DPS officer influence the outcome. Isn't that the point of hypnosis? To make people quit smoking, lose weight, or otherwise influence their behavior?

Finally, the rule of evidence require that witnesses can only testify if they have "personal knowledge." Hypnosis would seem to stretch the limits of that definition to absurdity.

What do you think? Is this a valid crime fighting tool? Should we hypnotize witnesses?

I'm often surprised by the honesty of casual drug users. Too often they will confess their criminal indiscretions to the police. For example, many will consent to a police search of their car or volunteer that a joint is in a purse or glove box.

Why would anyone volunteer incriminating information? While not an exhaustive list, here are two reasons.

1. Fear/Guilt. When a cop pulls over a drug user the adrenaline of the situation leads many to confess to get the confrontation over with. They want the cop to quit their investigation. They hate the confrontation and uncertainty.

2. Cool Cop/De Minimis Arguments- A very misguided hope that their cop will be "cool" and let the suspect go. Related to the "I just had a joint in my car, I thought I would get a warning", de minimis justification.

Most people expecting a cool cop have a story to tell about another cop who was cool, and let them or a friend go. A word to the public- your cop is not cool.

Most officers, especially traffic enforcement (DPS etc) live for drug searches. If DWI is the capital murder of traffic stops, then finding drugs is like solving a bank robbery. Cops love finding drugs. Watching their excitement on film leads me to believe some get high on busting drug users.

Don't consent to a search or volunteer information about contraband. Consider, instead, asking for an attorney or refusing a consent search.

I know you are nervous. I know that you think the recreational use of drugs is not a reason to arrest someone. But cops don't think like that. The love arresting you, and they aren't cool.

Photographed outside the State Office of Administrative Hearings in Dallas (where DWI ALR hearings are held). EVE was not nearby. I often worry about the militarization of our police forces. I'm glad to see DPD going the complete opposite direction with the Lt. Jim Dangle inspired police segway.