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PR: Constitution Day 2016

September 9, 2016 Leave a Comment

constitution day graphic 2016Press Release: CONSTITUTION DAY CELEBRATION

Contact: Tyler Flood, HCCLA President
Office: 713-224-5529   Email Tyler

Houston, Texas – September 9, 2016 – Please join the Harris County Criminal Lawyers Association (HCCLA) at 12:00 p.m. on Monday, September 19, 2016 for a brief, public celebration of Constitution Day. HCCLA members will read the Bill of Rights and other key Constitutional Amendments on the courthouse steps of the Harris County Criminal Justice Center at 1201 Franklin, Houston, Texas 77002.

This event draws its inspiration from HCCLA’s annual public reading of the Declaration of Independence, which has served as a model for yearly readings across Texas.

What: Constitution Day is a federally observed date to commemorate the signing of the United States Constitution in Philadelphia, Pennsylvania, on September 17, 1787.

As criminal defense lawyers, HCCLA members fight to protect the Constitution and its safeguards, many of which are set forth in amendments to this cherished document. HCCLA strives to remind the public of the importance of their Constitutional rights. HCCLA’s public reading of fundamental rights enshrined in Constitutional amendments—including the first ten, known collectively as the “Bill of Rights”—will be a brief and simple gesture for public awareness and education.

When: 12:00 p.m. on Monday, September 19, 2016.
Event should last approximately 20-30 minutes.

Where: Front steps of Harris County Criminal Justice Center (Criminal Courthouse) at 1201 Franklin, Houston, Texas 77002 (corner of Franklin and San Jacinto, downtown Houston).

Who: Event is sponsored by the Harris County Criminal Lawyers Association, America’s oldest and largest local organization of criminal defense lawyers, with over 750 members. HCCLA President Tyler Flood will lead the reading. Event co-organizers are Houston attorneys and HCCLA members: Jennifer Gaut, Philip Gommels, Gemayel Haynes, Grant Scheiner, and JoAnne Musick.

Members of the public who attend this event will receive
pocket-sized copies of the United States Constitution.

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Download (PDF, 2.54MB)

Filed Under: constitution day, press release Tagged With: bill of rights, constitution, constitution day, public awareness

“Open Carry” NOT “Papers Please”

December 30, 2015 Leave a Comment

Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.Your-Papers-Please-300x175

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

____________________

[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

 

View and Download Devon Anderson’s Advisory Opinion Here

Download (PDF, 941KB)

Filed Under: constitution, police, politics, prosecutors, search and seizure Tagged With: constitution, Criminal Justice, devon anderson, district attorney, handguns, harris county, Harris County District Attorney, hccla, law enforcement, open carry

Mentoring in Criminal Defense

December 7, 2015 Leave a Comment

Law school does not prepare lawyers for the courtroom generally. It teaches them to think, to analyze, and to process, but it does not generally teach the techniques necessary to the courtroom.

In criminal defense, most lawyers are solo practitioners. Many hang their shingle and start accepting cases immediately out of law school. Others may start in a prosecutor’s office but still do not understand the nuances of “defense” work or running a practice. In this vein, mentoring is vitally important.

HCCLA has led the forefront for mentoring in Texas. We have the largest and most successful second-chair program. We have worked with the public defender to further mentoring by assisting in the FACT program (future appointed counsel training). The goal has been to train lawyers in both private practice and indigent defense. By increasing the quality of defense lawyers, the entire system works stronger and better.

HCCLA’s second-chair program has been in existence for many years and is quite successful, thanks to the efforts of Sarah Wood (our coordinator) and all of those who regularly participate in the program.

You can read and download the entire report here:

Download (PDF, 929KB)

Filed Under: benefits, clients, justice, law school, Members, membership, Trial Techniques, Trial Tips Tagged With: constitution, criminal defense, giving back, hccla, lawyers, mentee, mentor, mentoring, mentorship, second chair program

Happy Constitution Day

September 20, 2015 Leave a Comment

Harris County Criminal Lawyers Association
Celebrates Constitution Day

September 17th is Constitution Day, and this year HCCLA began a new tradition of celebrating our United States Constitution with a public reading of the Preamble and Amendments. HCCLA also provided commemorative pocket constitutions for attendees and passersby.

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This event is modeled after our celebration and reading of the Declaration of Independence with occurs each 4th of July and was started by Past President Robert Fickman.

Special thanks to member Grant Scheiner for the inspiration for this event and to Grant, Philip Gommels, Jennifer Gaut, and Gemayel Haynes for organizing this celebration.

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Thank you to the following lawyers for participating in the reading of the United States Constitution Preamble and Amendments:

JoAnne Musick – Preamble
Grant Scheiner* – 1st Amendment
Danny Easterling – 2nd Amendment
Dyan Owens – 3rd Amendment
Gemayel Haynes – 4th Amendment
Jen Gaut & Lydia Johnson – 5th Amendment
Phil Gommels – 6th Amendment
Andrew Wright – 7th Amendment
Robb Fickman– 8th Amendment
Lonnie Knowles – 9th Amendment
Patti Sedita – 10th Amendment
Alma Garcia – 11th Amendment
Cheryl Irvin, Ryan Marquez and Alan Macia – 12th     Amendment
Staci Biggars – 13th Amendment
Michael Wynne – 14th Amendment, §1
Justin Harris – 14th Amendment, §2
Wade Smith – 14th Amendment, §3
Roberto Quijano – 14th Amendment, §4 (TSU student)
Akeem Ayinde – 14th Amendment, §5 (TSU Student)

Shout out to the judges who took time to attend and celebrate with us:
Michael McSpadden, Mike Schneider, Brock Thomas, Brad Hart, and Renee Magee (who was out of town but asked her coordinator, Joey DeBruyen, to attend in her absence)

Photos of the event can be found here

Texas Lawyer coverage!

Filed Under: celebrations, constitution day, honor, justice, Members, Public Trust Tagged With: constitution, constitution day, hccla, members, public reading, united states constitution

PR: Constitution Day Celebration

August 20, 2015 Leave a Comment

FOR IMMEDIATE RELEASE

Contact: JoAnne Musick, HCCLA President
Office: (832) 448-1148 Cell: (832) 326-8864
email joanne

CONSTITUTION DAY CELEBRATION
PUBLIC READING OF BILL OF RIGHTS & OTHER CONSTITUTIONAL AMENDMENTS

Houston, Texas – August 20, 2015 – Please join the Harris County Criminal Lawyers Association (HCCLA) at 11:30 a.m. on Thursday, September 17, 2015 for a brief, public celebration of Constitution Day. HCCLA members will read the Bill of Rights and other Constitutional Amendments on the courthouse steps of the Harris County Criminal Justice Center at 1201 Franklin, Houston, Texas 77002.

This event draws its inspiration from HCCLA’s annual public reading of the Declaration of Independence, which has served as a model for over 100 local criminal defense lawyer organizations engaging in similar yearly readings across Texas.

What: Constitution Day (also known as, “Citizenship Day”) is a federally observed date to commemorate the signing of the United States Constitution in Philadelphia, Pennsylvania, on September 17, 1787. As criminal defense lawyers, HCCLA members fight daily to protect the Constitution and its safeguards, many of which are set forth in amendments to this cherished document. HCCLA wishes to remind citizens of the importance of their Constitutional rights, for which so many have sacrificed and some have paid the ultimate price. HCCLA’s public reading of fundamental rights enshrined in Constitutional amendments—including the first ten, known collectively as the “Bill of Rights”—will be a brief and simple gesture which HCCLA hopes the Houston-area media will cover as a public service.

When: 11:30 a.m. on Thursday, September 17, 2015. Event should last approximately 20-30 minutes.

Where: Front steps of Harris County Criminal Justice Center (Criminal Courthouse) at 1201 Franklin, Houston, Texas 77002 (corner of Franklin and San Jacinto, downtown Houston).

Who: Event is sponsored by the Harris County Criminal Lawyers Association, America’s oldest and largest local organization of criminal defense lawyers, with over 750 members. Public reading of Bill of Rights and other Constitutional Amendments will be led by HCCLA President JoAnne Musick. Event co-organizers are Houston attorneys and HCCLA members: Jennifer Gaut, Philip Gommels, Gemayel Haynes and Grant Scheiner.

What Else: Members of the public who attend this event will receive pocket-sized copies of the United States Constitution. For background information on HCCLA, visit www.hccla.org. For historical background on Constitution Day and information about other celebrations, visit the National Constitution Center at: www.constitutioncenter.org/calendar/constitution-day-2015

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Download (PDF, 67KB)

Filed Under: celebrations, Members, press release Tagged With: citizenship day, constitution, constitution day, harris county, harris county criminal justice center, hccla, press release, reading

Outrageous Attack on Judge

July 30, 2015 1 Comment

After losing a hearing on the constitutionality of the online solicitation of a minor law this week, the Montgomery County District Attorney’s Office, through its First Assistant Phil Grant, has levied media attacks against Judge Kelly Case for political posture.

“Judge Case continues his one man war on our proactive efforts to protect the children of Montgomery County,” stated First Assistant Grant. “This statute is designed to identify and arrest individuals searching for children online to victimize. The methods and procedures used by our investigators specifically weed out those who are merely engaged in twisted sex talk, and arrests are made only when adults get in their car and drive to a location to meet the minor child. The defendants we arrest have made proactive efforts to find and molest children. Judge Case’s rulings continue to place the children of Montgomery County in danger.”  Breitbart.com July 29, 2015

Phil Grant, who by no coincidence has indicated he will run against Judge Case in the next election cycle, attempts to paint Judge Case as creating a war on the protection of children.

Nothing could be further from the truth!

Using the protection of children as his pawn for political gain, Phil Grant intentionally misleads the media regarding the current state of law in Texas. Rather, Judge Case is following the law of the land in which the Texas Court of Criminal Appeals (the highest court in Texas for criminal cases) has already held sections of this law as over-broad and unconstitutional as it infringes upon the First Amendment’s free speech provision.

Following the realization that this particular law was over-broad and unconstitutional, Senator Joan Huffman (a strong Republican, former prosecutor, and former district court judge) worked hard to introduce and pass new legislation which would presumably cure the error and solidify these types of prosecutions. The Montgomery County District Attorney’s Office supported this new legislation (which takes effect September 15, 2015). They supported it because they knew the law was improperly and unconstitutionally written and needed to be fixed! Now they want to complain that a judge who swore to uphold the Constitution is following the law? That’s absurd. Perhaps this media stance would be different if Mr. Grant had not chosen to run against Judge Case.

Responding to the outrageous attack, the Montgomery County Criminal Defense Lawyers Association issued a statement setting forth the true facts. It can be viewed and downloaded here:

Download (PDF, 169KB)

If you want more information on why the statute is unconstitutional, you should read Mark Bennett’s blog on a Roadmap to the Texas Online Solicitation Statute

HCCLA supports the Montgomery County Criminal Defense Lawyers Association in their response. We too are outraged that the Montgomery County District Attorney would launch such an unwarranted attack to aid its own First Assistant’s political agenda.

Updated Courier media with a response from Phil Grant does not sway our opinion or his agenda.

Filed Under: appearance of impropriety, justice, politics, prosecutors, Public Trust Tagged With: constitution, constitutional law, following the law, free speech, judge kelly case, montgomery county district attorney, online solicitation, phil grant, unwarranted attack, using media for political gain

Get a Warrant (cellphones)

October 18, 2014 Leave a Comment

Extending Riley and Wurie:10679715_723298444417197_5682391993542362271_o
Warrantless Privacy Intrusions on Location Records of Texas Defendants
By: Drew Willey, with significant contributions from Angela Cameron, HCPDO Appellate Division

Riley and Wurie are unanimous wins for the Fourth Amendment.[i] Law enforcement is now required to obtain a warrant before searching cell phones incident to arrest. While the ruling is specifically limited to cell phone searches incident to arrest, the determinations about citizens’ privacy in cell phones could be extended, if argued for. Particularly, we could obtain a warrant requirement for location data collected through cell phone companies from cell phone use. While a seemingly narrow situation, prosecutors all over the country use this information to further their theories. This extension of cell phone privacy would be another great win for the fourth amendment.

Technological advances have created “modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[ii] Justice Roberts’ in depth analysis of cell phone advancements is a refreshing nod from the court to realities of the real world and created a warrant requirement the general public may have assumed already existed. However, our right to privacy is still being put to the test by law enforcement. We keep and conduct a huge amount of private information exchange on our cell phones and smartphones through cell phone companies. Currently, law enforcement is obtaining our private and personal information from cell phone companies through a lowered standard of scrutiny. Particularly, cops are tracking individuals’ location without their knowledge through their cell phones by obtaining the information from cell phone companies, and they can do so without a warrant! The statutes surrounding this area of law are often worded unclearly, because the drafters do not have the knowledge about the technology necessary to be clear, or the technology advances too fast for the wording to be relevant in the slowly approved statutes. Generally, cops will pursue their agendas with the maximum capabilities the law allows, even pushing the envelope too far in some cases. For this reason, it is imperative for statutes and courts’ interpretations to adequately protect our rights.

The cases on point are at times hard to understand, but this issue boils down to whether citizens’ have a reasonable expectation of privacy in their cell phone location information. If not, this information constitutes business records or a release of privacy expectation to a third party, and it is let in at trial. If we do have that expectation of privacy, the acquisition of this information constitutes a search and does not fall within an exception for a warrant, thus requiring a showing of probable cause.

Much of the debate on this issue focuses on federal law, so this article first argues for a warrant requirement under federal law. However, the later discussion of Texas law is also important to keep in mind whenever making this argument, depending on how the prosecution is attempting to justify its warrantless acquisition of cell phone location information.

The United States Code and
the Federal Constitution

Federal statute arguably does not allow law enforcement to request expansive information without a warrant.

            The applicable statute, 18 U.S.C. § 2703, justifying requests for expansive cell phone information reads:

“(c) Records concerning electronic communication service or remote computing service.–(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)”[iii]

The term “record or other information pertaining to a subscriber to or customer” is being expanded by law enforcement to include a vast array of information. It is important to look at the requests by law enforcement to make sure they are not overreaching. These requests can come through subpoenas or court orders, neither requiring probable cause. Further, these requests may be made for any length of time. This information could track a person’s location, their calls, and other intimate information for years.

The words “record or other information” are unclear as to what was intended to be included. This vast amount of information is analogous to the NSA’s collection of metadata currently at issue in federal district courts. The ubiquity of cell phones results in a higher need for protection of citizens’ privacy in regards to information obtained through cell phone records and data.[iv] In 2011 alone, cell phone carriers (not including T-mobile) responded to 1.3 million requests from law enforcement for call data.[v] Given U.S. citizens’ expectation of privacy, this statute should not be interpreted to allow law enforcement to obtain such vast amounts of intimate information without probable cause through a warrant.[vi]

Location information is often discussed directly. Proposed legislation specifically prohibits acquiring this information without a warrant.[vii] This bill is currently in front of the Subcommittee on Crime, Terrorism, Homeland Security, And Investigations. This bill does not address the wording in § 2703 that law enforcement currently uses to justify obtaining location information. The separation of this geolocation protection from § 2703, and inclusion in a different chapter indicates that geolocation information was not intended to be covered by the words “record or other information.” Therefore, § 2703 does not currently authorize law enforcement to obtain location information. However, the ambiguity in the statute creates the opportunity for police to obtain this information without a warrant first, and held accountable only if someone challenges a request, which can be rare. Legislation should make it perfectly clear that a warrant is required.

Constitutional rights are violated when police use cell phones as electronic tracking devices without obtaining a warrant.

Jones found that using electronic tracking methods violate the fourth amendment.[viii] The unanimous Riley court even specifically addresses location information. “Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”[ix] Smart phones advancements give an expectation of privacy for information from that phone.[x] Therefore, obtaining location information through a cell phone is a search and requires a warrant.

A federal circuit split is moving towards a reasonable expectation of privacy in cell site location information.

In an admittedly narrow 2-1 decision, the fifth circuit ruled that historical cell site information is not protected by an expectation of privacy, but recognizing that cell phone users will want their location private and suggesting their recourse should be a demand to service providers or “lobbying elected representatives to enact statutory protections.”[xi] They concluded location information is a business record and admitted without a warrant. On the other hand, in a somewhat confusing ruling, the third circuit ruled that cell phone users do not voluntarily give cell phone providers their location information when making and receiving calls, indicating this information is not a business record.[xii] Then, from the eleventh circuit, Davis came down this past June ruling “cell site location information is within the subscriber’s reasonable expectation of privacy.”[xiii] Two weeks later, the unanimous decision in Riley and Wurie gave dicta arguably confirming the eleventh circuit’s ruling.[xiv] In federal courts, the trend seems to be moving towards the appropriate regard for privacy, and this trend can continue into Texas if argued.

Federal Law Summary

Requesting an overbroad amount of intimate information over a lengthy period of time without a warrant should not be interpreted as allowable under 18 U.S.C. § 2703 and violates the U.S. Constitution. Provided the advancement of technology in cell phones and the increasing number of cell towers in urban neighborhoods, tracking citizens’ location with electronic devices such as cell phones violates their reasonable expectation of privacy. Furthering the trend in federal circuit courts could lead to a citizen’s instilled right to privacy in location information, which would prevent law enforcement from bypassing a warrant by obtaining the information from cell phone service companies.

The Texas Code and
the Texas Constitution

Under Texas statute, it is also unclear whether law enforcement is required to obtain a warrant for the information gathered.

The applicable statute reads:

“(a) An authorized peace officer may require a provider of an electronic communications service … to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.

(b) An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose only electronic customer data that is information revealing the identity of customers of the applicable service or information about a customer’s use of the applicable service, without giving the subscriber or customer notice:”[xv]

The statute then lists six ways to obtain the information under (b) through lower standards than a warrant requires.

Under this statutory structure, the requirement of a warrant depends on whether information is (a) “in electronic storage” or (b) “information about a customer’s use”. Vast information is obtained from a customers’ use of cell phone service. From a customers’ act of merely dialing phone numbers, law enforcement can find a cell phone users’ location. However, that location information is also stored by the cell phone company in electronic storage. So, does it fall under (a) or (b), and should a warrant be required to obtain that information?

Information under sec. (a) requires a warrant, and information under sec. (b) does not. Historical cell site information are the records that track individuals’ location, and would seem to fall under “in electronic storage” terms. It would seem broader information falls under sec. (a), as it includes broader terms of “in electronic storage”. Following that reasoning, broader information likely includes cell phone site and location records, requiring a warrant for that information. However, law enforcement is not currently obtaining a warrant for such information. They often seek overbroad information, reaching beyond the scope of sec. (b). They may even fail to cite the correct statute in their applications to avoid obtaining a warrant.

Look for overbroad and overreaching applications when location records are being used.

Applications for information often request information beyond the scope of sec. (b)’s “information about a customer’s use of the applicable [electronic communications] service.”[xvi] They could list every possible cellular phone and internet service provider as potential carriers of the information sought; request email and IP address information, network and routing information, and cell site information.

Again, it is important to view the applications for this information to make sure law enforcement is doing its due diligence to determine the type and scope of information they seek, and not merely on phishing expeditions. A higher standard of scrutiny through a warrant should be applied when law enforcement is seeking vast amounts of private information.

Further, subsection (b) deals with identity and a single customers’ use of service. This section is focused on one individual’s wireless service. It does not indicate that other people’s information may be gathered with the lower standard for law enforcement. As soon as law enforcement starts to gather other people’s information, they are obtaining information under subsection (a), requiring a warrant. Otherwise, law enforcement could obtain information about any and every individual that ever came in contact with the number subject to the search, through outgoing and incoming calls and texts, website visits, and/or emails. If this were allowed, law enforcement could conceivably find a political campaign email sent to a subscriber’s email address connected to his or her phone; and, without looking at the content of the email, be connected to a candidate’s entire distribution list, without ever requesting a warrant. This was not likely the intent of the legislature by including subsection (b). In order to protect citizens’ rights, law enforcement should be required to show probable cause for this type of information.

Make sure law enforcement’s citations justifying their applications are correct.

Often, law enforcement may cite to the wrong section as justification for their warrantless searches. For example, they often rely solely on federal statute and law. If they do not cite which section of the Texas statute they are relying on, the intentions of the Texas legislature and protections of the Texas constitution are lost. Applicable Texas statutes exist and law enforcement should be kept accountable in classifying their searches to adequately determine the warrant requirement.

Texas recognized a higher expectation of privacy in cell phones before SCOTUS.

Before Riley and Wurie, the CCA gave an almost identical ruling in Granville when analyzing the fourth amendment. Texas had a ruling for the expectation of privacy in our cell phones before federal law required us to.[xvii] Granville involved an arrestee who still had an expectation of privacy when his cell phone was in the jail property room.[xviii] Judge Cochran explained, a cell phone contains data that “may involve the most intimate details of a person’s individual life, including text messages, emails, banking, medical, or credit card information, pictures, and videos. … [t]he potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.”[xix] Citizens who are not an arrestee and whose phones are not in possession of law enforcement have a higher expectation of privacy in their cell phone information. Those citizens are not aware that their cell phone information is being searched by law enforcement. Law enforcement can use this information to find who citizens are calling, when those calls were made, and how long each call lasted. The search for this intimate information should not be allowed without a warrant.

In Houston, we are faced with one case directly opposed to this argument out of the fourteenth district. Barfield followed the fifth circuit’s reasoning that obtaining “cell tower records from the third-party provider did not violate reasonable privacy expectations.[xx] This case was wrongly decided before the guidance of Riley and Wurie, Granville, and Davis.[xxi] It was also decided on federal law alone and did not apply Texas law, arguably weakening its persuasive strength. With a little help from defense attorneys, the fourteenth district will hopefully soon overturn this ruling. Texas courts should provide for probable cause showings in these situations before SCOTUS dictates us to.

Art. I Sec. 9 of the Texas Constitution may provide Texas citizens higher protections than the U.S. Fourth Amendment.

Richardson ruled the Texas Constitution gave greater protection from warrantless uses of pen registers while stating,

“The mere fact that a telephone caller has disclosed the number called to the telephone company for the limited purpose of obtaining the services does not invariably lead to the conclusion that the caller has relinquished his expectation of privacy such that the telephone company is free to turn the information over to anyone, especially the police, absent legal process.”[xxii]

As protection from state constitutions can only be greater than the fourth amendment, Texas courts should follow this ruling to find the same or more expectation of privacy is applicable to the Texas Constitution.[xxiii] The federal constitution and decision of the federal courts provide the minimum protection required by states.[xxiv] “The federal constitution sets the floor for individual rights; state constitutions establish the ceiling.”[xxv]

Art. I Sec. 9 of the Texas Constitution, in this regard, provides Texas citizens more protection than the fourth amendment. Often, law enforcement relies solely on federal law for these types of warrantless searches. While it seems these searches still violate the federal constitution, it is a closer call under federal law. These violations become clearer under Texas law. Texas citizens should not be subject to searches of information by merely dialing numbers on our cell phones absent the legal process of obtaining a warrant.[xxvi] Similarly, many other states have given their citizens “a reasonable expectation of privacy in the telephone numbers dialed on the telephone.”[xxvii] The company’s records of this intimate information do not diminish a person’s expectation of privacy in their cell phone. Law enforcement may not circumvent searching an individual’s cell phone by acquiring the records from a cell phone company. Location information obtained in this manner should be excluded from evidence unless a warrant was used.

Texas Law Summary

When law enforcement seeks expansive information, Texas statute and protections of the Texas constitution are at play.[xxviii] Following dicta in Granville, Barfield should be overturned.[xxix] Citizens’ expectation of privacy should be protected from warrantless searches of cell providers’ location information of their subscribers, especially under the added protection of Texas law.

Conclusion

Citizens have an expectation of privacy with their cell phones.[xxx] Texas citizens are afforded an expectation of privacy that extends to the phone numbers they dial on their phones.[xxxi] Citizens also share an expectation of privacy from electronic tracking devices.[xxxii] Extending Riley and Wurie to protect us from warrantless acquisition of cell site location information takes more defense attorneys making the arguments; after which, we could make a simple edit to the last sentiments of Riley: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ [citation omitted]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple–get a warrant.”[xxxiii]

[i] Riley v. California, 573 U.S. ___ (2014)

[ii] Id. at 9

[iii] 18 U.S.C. § 2703 (emphasis added)

[iv] Klayman v. Obama, 957 F. Supp. 2d 1, 35-36 (D.D.C. 2013); but cf. Am. Civil Liberties Union v. Clapper, 959 F. Supp. 2d 724, 749 (S.D.N.Y. 2013)

[v] Peter Maass and Megha Rajagopalan, That’s No Phone. That’s My Tracker, http://www.propublica.org/article/thats-no-phone.-thats-my-tracker (July 13, 2012)

[vi] In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615-16 (5th Cir. 2013) (Dennis, CJ., dissenting) (discussing the statutory interpretation canon of constitutional avoidance)

[vii] 2013 CONG US HR 983, Sec. 3. GEOLOCATION INFORMATION PROTECTION

[viii] United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (reasoning a trespass, in part, constituted the search, but also using a Katz analysis to determine warrantless use of a GPS tracking system violated the fourth amendment; Justice Alito’s concurrence also recognizes that technological advances can affect the Katz standard of a reasonable expectation of privacy)

[ix] Riley, 573 U.S. ___ at 19-20

[x] Id.; United States v. Davis, No. 12-12928, 23 (11th Cir. 2014); State v. Granville, PD-1095-12, 2014 WL 714730 (Tex. Crim. App. Feb. 26, 2014), reh’g denied (Apr. 2, 2014)

[xi] In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 615 (2013)

[xii] In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317-18 (3rd Cir. 2010)

[xiii] Davis, No. 12-12928, 23 (11th Cir. 2014)

[xiv] Riley, 573 U.S. ___

[xv] Tex. Crim. Proc. Code art. 18.21 Sec. 4 (emphasis added)

[xvi] Art. 18.21 Sec. 4(b)

[xvii] Granville, PD-1095-12, 2014 WL 714730

[xviii] Id.

[xix] Id.

[xx] Barfield v. State, 416 S.W.3d 743, 749 (Tex. App. – Houston [14 Dist.] 2013 no pet.)

[xxi] See supra, note ix.

[xxii] Richardson v. State, 865 S.W.2d 944, 951 (Tex. Crim. App. 1993) (the court further discusses the issue at *953: “[W]e believe it would be likewise unfair to hold that the customer ‘assumes the risk’ of public disclosure of a number he dials on the telephone. Other than for billing purposes, the telephone company itself has no interest in memorializing that information. Moreover, the telephone company is fiercely protective of what it considers the privacy interest of its customers even in the information it does record in the ordinary course of business—as any private citizen will discover if he attempts to obtain the telephone bill of another customer without that other’s express permission. [cite omitted]. It goes without saying that telecommunications are pervasive in our society. The telephone company’s vigilance in protecting from public disclosure the uses to which its customers put their telephones reflects a value that is equally pervasive. As with information imparted to a doctor, we share a common understanding that the numbers we call remain our own affair, and will go no further. Thus, society recognizes as objectively reasonable the expectation of the telephone customer that the numbers he dials as a necessary incident of his use of the telephone will not be published to the rest of the world.”)

[xxiii] See id. at 947

[xxiv] See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991)

[xxv] Id (citing LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986))

[xxvi] See Richardson, 865 S.W.2d at 951

[xxvii] Id. at 950-51 (citing  State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (New Jersey Constitution gives a telephone subscriber a constitutionally protected privacy interest in the telephone company’s home toll billing records for the subscriber’s telephone); People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, at 826, 602 P.2d 738, at 746 (1979) (“a hotel guest may reasonably expect that the calls he makes from his room are recorded by the hotel for billing purposes only, and will not be disclosed to others without legal process”); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783, at 791 (1984) (“an individual’s expectation of privacy in telephone numbers he calls is reasonable, legitimate, and is protected by the State Constitution against government surveillance and intrusion without probable cause”); People v. Sporleder, 666 P.2d 135 (Colo.1983) (under the Colorado Constitution a telephone subscriber has a legitimate expectation of privacy that telephone numbers dialed on a home telephone will remain private and that in the absence of exigent circumstances law enforcement officers must have a search warrant supported by probable cause prior to the installation of a pen register); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 813 (1986)  (“The privacy interests of citizens which are protected by article 1, section 7 of the Washington State Constitution prevent the defendant’s long distance telephone records from being obtained from the phone company, or any pen register from being installed on her telephone connections, without a search warrant”); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988) (Installation of a pen register on defendant’s telephone line was a search under the State Constitution); Rothman v. State, 70 Haw. 546, 779 P.2d 1, at 7 (1989) (“persons having private telephone lines have a reasonable expectation of privacy with respect to the communication of the numbers they call, and the numbers of incoming calls, and the seizure of those numbers by the government, without a warrant, would violate such persons’ right to privacy”))

[xxviii] Art. 18.21 Sec. 4(a); Tex. Const. Art. I Sec. 9; See Richardson, 865 S.W.2d 944

[xxix] See Granville, PD-1095-12, 2014 WL 714730; also see Barfield, 416 S.W.3d 743, 746 (decided before Granville)

[xxx] See Granville, PD-1095-12, 2014 WL 714730

[xxxi] Richardson, 865 S.W.2d at 947

[xxxii] Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911

[xxxiii] Riley, 573 U.S. ___ at 28 (strikethrough added)

Filed Under: Trial Tips Tagged With: 4th amendment, cell phone, constitution, search, supreme court, warrant

Op-Ed: Judges Misunderstand Role in Justice System

October 10, 2014 Leave a Comment

Op-Ed to Houston Chronicle
from: Harris County Criminal Lawyers Association (HCCLA)
Twitter: @HCCLA_org

Published: October 13,2014 (Houston Chronicle)
Defining a Fair and Independent Judiciary

The Houston Chronicle recently released its recommendations (here and here) for criminal judges in Harris County. Some candidates made comments that the editor called out for their lack of objectivity. The Harris County Criminal Lawyers Association (HCCLA) applauds the Chronicle’s call for fairness and objectivity by our judges and judicial candidates.

The largest local criminal-defense bar in the country, with over 800 members, HCCLA does not endorse any individual or either party. Even though judges are forced to work within a Republican-vs.-Democrat system of elections, they should be above politics and follow the Constitution and the law.

Our criminal justice system is an emblem of our standards of humanity. Fair dealing must be certain for those who find themselves accused of crimes. Judges play an important role in this process and are the first and last check in a system that must keep its promise to give every accused person a fair trial, no matter which political party is in power.

Political consultants typically advise judicial candidates to appear “tough on crime” because the voting public confuses justice with crime fighting. Judges and candidates do our community a disservice by promoting this misguided view. Our current “tough on crime” mentality has caused Texas to lead the nation in exonerations of the wrongfully convicted. Judges should be neither tough on crime nor soft on crime but instead fair and impartial, following the law wherever it leads.

The law requires judges to protect the citizens from their prosecutors. The public is only protected if our judges have the integrity to enforce the law despite contrary public opinion. The judiciary must be free to act on the law even when their decisions benefit defendants. Any judge who substitutes his or her own political beliefs for the law is not qualified to sit on the bench and certainly should not be given the tremendous responsibility of making life or death decisions. A judge who views himself or herself as doing the job of a prosecutor engages in the worst sort of judicial activism, impeding the separation of powers and insulting the memory of those who have fought to protect our constitutional freedoms.

A judge serves the public by enforcing the Texas and U.S. Constitutions, which our forefathers wrote to protect us from an overreaching government. The job of a judge is critical: to protect us by enforcing the constitutions without regard to whether doing so will benefit a particular defendant. The public is protected—from unfairness, from false accusations, and ultimately from tyranny—only when judges have the integrity to enforce the law despite the tide of public opinion.

But it takes courage to do the right thing despite the weight of public opinion. While craven candidates pander to fear and ignorance, the courageous deserve our support, the endorsement of the Chronicle, and most of all the support of the public at large. We must return to a fair and independent judiciary rather than one that will help the government win by being, like yet another prosecutor in the courtroom, “tough on crime.”

Filed Under: politics Tagged With: candidates, constitution, editorial, elections, hccla, judges, judges not prosecutors, justice, op-ed, opinion, politics, tough on crime

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