May 2015

Riley and Wurie are unanimous wins for the Fourth Amendment.¹ 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.”² Justice Roberts’ in-depth analysis of cell phone advancements was 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 smart phones 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’ locations 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 & 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, in part:

(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) . . .”[emphasis added]3

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.⁴ In 2011 alone, cell phone carriers (not including T-Mobile) responded to 1.3 million requests from law enforcement for call data.⁵ 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.⁶

Location information is often discussed directly. Proposed legislation specifically prohibits acquiring this information without a warrant.⁷ 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 violates the fourth amendment.⁸ The unanimous Riley court even specifically addressed 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.”⁹ Smart phone advancements give an expectation of privacy for information from that phone.¹⁰ 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 locations private and suggesting their recourse should be a demand to service providers or “lobbying elected representatives to enact statutory protections.”¹¹ 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.¹² 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.”¹³ Two weeks later, the unanimous decision in Riley and Wurie gave dicta arguably confirming the Eleventh Circuit’s ruling.¹⁴ [Author update: On September 4, 2014, the court vacated their opinion, granting rehearing en banc.¹⁵ On November 17, 2014, AT&T filed an amicus brief asking “the Eleventh Circuit to clear up the confusion surrounding whether the government needs a warrant to access cellphone location data . . .”¹⁶] 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’ locations 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 & 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 . . . [emphasis added]¹⁷

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 customer’s use of cell phone service. From a customer’s act of merely dialing phone numbers, law enforcement can find a cell phone user’s 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 section (a) requires a warrant, and information under section (b) does not. Historical cell site information comprises records that track individuals’ locations, and would seem to fall under “in electronic storage” terms. It would seem broader information falls under section (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 section (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 section (b)’s “information about a customer’s use of the applicable [electronic communications] service.”¹⁸ They could list every possible cellular phone and internet service provider as potential carriers of the information sought, as well as request information on email and IP address, network and routing, and cell site.

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, section (b) deals with identity and a single customer’s 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 section (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 section (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 on which they are relying, 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 this.¹⁹ Granville involved an arrestee who still had an expectation of privacy when his cell phone was in the jail property room.²⁰ Judge Cochran explained that 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.”²¹

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.

One case out of the Fourteenth District directly opposes this argument. Barfield followed the Fifth Circuit’s reasoning that obtaining “cell tower records from the third-party provider did not violate reasonable privacy expectations.”²² This case was wrongly decided before the guidance of Riley and Wurie, Granville, and Davis.²³ 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 this to us.

Art. I, Sec. 9 of the Texas Constitution may provide Texas citizens higher protections than the 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.²⁴

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.²⁵ The federal constitution and decision of the federal courts provide the minimum protection required by states.²⁶ “The federal constitution sets the floor for individual rights; state constitutions establish the ceiling.”²⁷

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.²⁸

Similarly, many other states have given their citizens “a reasonable expectation of privacy in the telephone numbers dialed on the telephone.”²⁹ 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 statutes and protections of the Texas Constitution are at play.³⁰ Following dicta in Granville, Barfield should be overturned.³¹ Citizen’s 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.³² Texas citizens are afforded an expectation of privacy that extends to the phone numbers they dial on their phones.³³ Citizens also share an expectation of privacy from electronic tracking devices.³⁴ 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”³⁵ [strikethrough added].

Endnotes

1. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

2. Id. at 9.

3. 18 U.S.C. § 2703.

4. Klayman v. Obama, 957 F.Supp.2d 1, 35–36 (D.D.C. 2013); but cf. ACLU v. Clapper, 959 F.Supp.2d 724, 749 (S.D.N.Y. 2013).

5. 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).

6. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 615–16 (5th Cir. 2013) (Dennis, J., dissenting) (discussing the statutory interpretation canon of constitutional avoidance).

7. 2013 Cong US HR 983, Sec. 3. Geolocation Information Protection.

8. United States v. Jones, ___U.S.___, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012) (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).

9. Riley, supra.

10. Id.; United States v. Davis, 754 F.3d 1205 (11th Cir. 2014), re’hrg en banc granted by United States v. Davis, No. 12-12928 (11th Cir., September 4, 2014); State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014).

11. In re Application of the United States for Historical Cell Site Data, supra, 724 F.3d at 615.

12. In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 317–18 (3rd Cir. 2010).

13. United States v. Davis, supra.

14. Riley v. California, supra.

15. David McAfee, “11th Circ. to Rehear Warrantless Cell Tracking Case En Banc,” http://www.law360.com/articles/574025/11th-circ-to-rehear-warrantless-cell-tracking-case-en-banc (September 4, 2014).

16. Lance Duroni, “AT&T Asks 11th Circ. for Clarity On Warrantless Cell Tracking,” http://www.law360.com/articles/597360 (November 18, 2014).

17. Tex. Code Crim. Proc. Art. 18.21, Sec. 4.

18. Tex. Code Crim. Proc. Art. 18.21 Sec. 4(b).

19. State v. Granville, supra.

20. Id.

21. Id.

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

23. See supra, note ix.

24. Richardson v. State, 865 S.W.2d 944, 951 (Tex. Crim. App. 1993) (the court further discusses the issue at 953: “. . . we 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.”)

25. See id. at 947.

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

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

28. See Richardson v. State, supra, 865 S.W.2d at 951.

29. 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 (Cal. 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 (Pa. 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 (Wa. 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 (Ida. 1988) (installation of a pen register on defendant’s telephone line was a search under the state constitution); State v. Rothman, 70 Haw. 546, 779 P.2d 1, at 7 (Ha. 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”).

30. Art. 18.21 Sec. 4(a); Tex. Const., Art. I, Sec. 9; see Richardson v. State, supra.

31. See State v. Granville, supra; Barfield v. State, supra, 416 S.W.3d at 746 (decided before Granville).

32. See State v. Granville, supra.

33. Richardson v. Stata, supra, 865 S.W.2d at 947.

34. United States v. Jones, supra, 132 S.Ct. at 949.

35. Riley v. California, supra.

In earlier articles, we offered 25 rules of evidence in our order of importance. That leads to the question of how best to learn them? Memory is a big subject and important beyond learning what needs to be known about evidence. For this article, although we focus on evidence rules, we believe these principles also apply as well to learning rules of procedure, elements of the offense, punishments for the offense, the facts of the case, and the text of an opening statement of the case. The goal is for most of the trial to be defended without notes so the defender can pay closer attention to the reactions of the jurors, judge, prosecutors, and witnesses. Also, we find that the more we memorize something, the more the meaning of the passages becomes clear. For example, although we may read and understand the text of Rule 602 on personal knowledge, memorizing the text of the rule gives a deeper understanding.

The bigger picture about memorizing is the classical rhetoric element of Memoria. Memoria is more than just learning words by heart, because it requires the material be important enough to remember and contain an order or rhythm or rhyme or beauty that keep the words in our minds. The main sources for memory techniques are Aristotle, Quintilian, Augustine, Aquinas, and some modern memory gurus who enter contests and do tricks or who do psychological studies of memories (their names can be found in the bibliography). The explanations from evolutionary psychology help us understand why the rhetoricians—ancient, medieval, and modern—were right when they taught memory skills. From evolutionary psychology, we learn human beings are particularly strong at remembering different objects and distinguishing them and finding their way home but not so strong with abstractions such as ideas, names, and numbers.

This is how I imagine the process for the evolving hunters and gatherers: Jack and Jill are members of a hunting and gathering tribe. What they do well is walk a long way from camp and their other tribe members and find edible plants and potable water, eggs, grubs, and the occasional rodent. They see, hear, taste, smell, and feel these things. If anything is weird or scary, they will more likely remember it because they must avoid danger. I see them making up rhymes and songs to help them remember where they have been and what they found. What Jack and Jill do very well is remember plants and animals and geographic landmarks (to go out and get back) and how to avoid dangers—lions, tar pits, that sort of thing. “Jack and Jill went up the hill to fetch a pail of water . . .” My understanding from the evolutionary psychologists is we still have this same kind of memory.

The classic methods for memorizing are confirmed in their effectiveness by the modern studies of memory. That having been said, not everyone agrees about the best way to memorize or how it works. I think the best short text on how to memorize is still Quintilian’s Institutes of Oratory, Book 11, Chapter 2 (http://eserver.org/rhetoric/quintilian/11/chapter2.html#1). Once you have tasted this treat, I think you may find the whole of the bibliography we have included compelling.

What should we know about memory before we try to memorize?

Based on the readings in the bibliography, here are some conclusions about memory:

• Anyone with a normal, undamaged mind can do it.
• No one is particularly good at it without using special techniques, and slow learners may hold the memory longer.
• Except for some children with eidetic memories and people with rare forms of mental disabilities, no one remembers everything.
• People who claim “photographic memories” have always been found to use memory techniques.
• Abstractions (like the numbers in the rules of evidence) are hard to remember.
• We can best remember abstractions by:
  • Associating the images, words, letters, and numbers to a geographic location so we can go there and “see” what we have remembered—the loci method.
  • Turning the numbers into letters so we can turn them into words and images.
  • Hooking items together in a sequence like we would if we were observing them on a walk or in a room.
  • Hooking the words together in a weird manner so we can envision images.
• Prose and poetry are hard to memorize and must be learned in a manner different from learning lists.
• Memory is either short-term memory or becomes, later, long-term memory, and the two types are stored in different parts of the brain.
• We all quickly forget most of what we learn in short-term memory if it is not moved to a different part of the brain.
• The hippocampus processes those short-term memories into long-term memories and puts them in other parts of the brain. It is like a librarian for memories.
• Once a memory becomes long-term, it is much more slowly forgotten and can be pulled up and polished off for reuse if it is needed.
• We place things in long-term memory with repetition over a period of time. Repeating something once a week for 20 weeks is more effective than repeating it 20 times in one day.
• We place things in long-term memory that are unusual or frightening.
• We place things in long-term memory that are important to us.
• Sleep will sometimes improve the memory of something we practiced the day before.

How to learn lists of things

We will next give a list of steps for learning the rules of evidence. I am not sure which of these works and if any of the steps can be cut out or expanded upon to the benefit of different individuals. In fact, some memory wizards argue in favor of skipping the first six steps completely and going directly to the repetition steps we use for memorizing poetry or prose. It reminds me of what a political campaign worker told me once: “Ninety percent of what we do in a campaign doesn’t help at all. It is just that we don’t know which ninety percent it is, so we have to do everything.”

This approach will be to learn the rule numbers and content corresponding to the Texas rules (to the extent they are different from the federal rules) and memorizing the text of the federal rules. This plan reflects our practice, because we go to trial in both state and federal courts, but probably a little more in the state court. The federal restyled rules are more clearly stated and easier to memorize. Also, we anticipate Texas will eventually adopt the restyled language.

Reviewing the lists

1.   Read the restyled federal rules of evidence. It was amended in 2011, and you can find it online. Although it is different in some ways from the Texas rules, it is more clearly stated and will help even if you only do state court defense.

2.   Read through all of the rules and annotations. The TCDLA publication Hampton, C., & Wischkaemper, P. (2009), ­TCDLA’s Annotated Texas Rules of Evidence and Rules of Appellate Procedure, Austin, Texas, is a good place to start. Do not try to memorize anything at this stage. Do not get bogged down in the annotations—in fact, skip over them if they are not from the United States Supreme Court, the Court of Criminal Appeals, or your court of appeals. For instance, if you are from Brownsville, you may want to read the annotations for Corpus Christi and skip the rest. Also, do not get bogged down in the civil rules. Skip those dealing with trade secrets and subsequent remedial measures if you like. You may need them later as place-savers if you are learning the rules in sequence. Do not be disappointed after you do this if you do not feel you know anymore than when you started—we know that much of memory involves the unconscious, and you are beginning to form the basis for lodging these matters in the memory.

The major memory system for turning numbers into words

3.   Look over the major memory system for converting rule numbers to letters, then words, and then images. Here is a site that describes it: http://www.academictips.org/memory/majorsys.html. This is a controversial step because the learning curve is long and the application of the system is a lot of work. If you want help with ideas for turning certain numbers into the words, try http://www.phoneticmnemonic.com/lookup.php?num=103&submit=Lookup.

The loci method

4.   This originates from a story told over and over by the memory experts about a guy who left a building just before it collapsed. The falling building killed everyone eating at a feast inside. The lone survivor was able to remember everyone in the building by going, in his mind, from place to place so he could identify the dead. Everyone using a system seems to start here, and we will do the same. Using a loci method, link each article in the rules to a separate room in your house, office, or a street you may walk for your morning constitutional. Within that room or street, assign each rule a separate location related to an object. For rules with complex parts, assign each part an object. Rule 803 (hearsay exceptions) will need a room all its own, as will Rule 901(b) (authentication illustrations). The parts of Article 38 of the Texas Code of Criminal Procedure warrant a room.
 You may wish to apply the major memory system for remembering the rule numbers and place something that will help you remember the meaning of the rule at that location, but this is not critical at this stage because each of the rooms you use will have certain objects for you to survey as you go around the room. Because you know Rule 602 follows Rule 601, you have a basis for knowing that 601 is related to the lamp and 602 is related to the ape statue. For example, I use my study at home (I call it the Clarence Darrow room) as the place to memorize Article VI on witnesses. Each of the rules, 601 through 607 is identified with an object in the room (a desk lamp, a statue of an ape holding a human skull, a cane holder full of walking canes, an antique Chinese chair, an antique Chinese table, a framed picture of grand kids, and a large wooden gavel).
 Rule 608 has two parts that I have given two locations close together (a wall clock and the statue of the La Virgen). Rules 609 and 610 are a rug and a chair. Rule 611 has three parts: my fat bulldog, his basket of toys, and his leash. Rules 612 through 615 are a printer, a modem, a computer screen, and a keyboard. Then, for instance, to remember the most important of rules, 602, is associated with an ape holding a human skull. The ape is studying the skull so he can describe it later; he is gaining personal knowledge. The ape has his five fingers on his chin and is repeating each of the senses to try to remember qualities of the skull, one finger at a time: sight, smell, hearing, taste, and feel. So, thinking about this rule, I think of the statue. I remember Rule 602 is about personal knowledge and this involves the five senses.
 If I wish to get an image to connect the major memory system to the rule, I convert the rule number to an image. 602 is “chosen.” (In applying the major memory system described above, we say the 6 is sounded as “ch” or “sh,” the 0 is “s,” and the 2 is “n.”) So, I imagine Moses as one of God’s chosen people. That is Moses’ skull the ape is pondering. Later, if I need to connect an important case to the rule, I can get similar devices to remember the case connected to the rule. Other rooms in the house are dedicated to other articles or sections in the rules of evidence. The guest bedroom (we call the Eugene V. Debs room) has 24 items or places associated with 24 exceptions to the hearsay rule. The Dorothy Day living room has 13 locations or articles identified with 13 privileges in Article V: Privileges. The Big Bill Haywood kitchen has 13 locations related to relevancy. (Rule 404 has two locations for (a) and (b).) The rooms have names of historical people in case I need an image to associate. The rooms and their locations can be reused for memorizing other matters as well. This is called a memory palace, but you will want to build your own.

The linking method

5.   Using a linking method, connect the rules in order. In order to list the rules in order, you will want the number of the rule, so you will want to develop the major memory system for converting numbers to letters and creating an image in your mind. Learn all of the rule numbers in sequence, hooking them together in a sequence. Here are some examples:

• 101 is “toast.” Think of animated slice of toast wearing a monocle in one eye, representing his title, and looking through a telescope with the other eye. This Texas rule clarifies where the rules of evidence do not apply—hearings under Rule 104, grand juries, habeas corpus, competency, bail, warrants, contempt—while these exceptions are in Federal Rule 1101.
• The toast is attacked by 12 (102 is “dozen”) porpoises, who eat him up. Rule 102 is related to the porpoise or “purpose” of the rules.
• One of the dozen porpoises is an “atheist” (103), and just like Judas, he betrays us by failing to make an objection and getting a ruling on the record.

These are the images that come to my mind with the numbers and rules, but yours may well be different. Under this method, you continue to link images through Rule 107. I would get around to Article II judicial notice last. Here are some starters for Articles IV, VI, and VIII:

• 401 is “rust” and the rule defines relevant evidence. I use a dancing elephant as the memorable object to symbolize the abstraction of relevant evidence. So think of a dancing elephant covered with rust walking toward the front door of the courthouse.
• 402 is “raisin,” admits relevant evidence and excludes irrelevant evidence. Think of a giant raisin blocking the door of the courthouse that swings aside when the rusty dancing elephant arrives. But it closes again quickly to keep out a crazy guy.
• 403 is “résumé,” and the rule is prejudice and confusion, waste of time, and cumulative evidence. Think of a crazy guy, all dirty and smelly, carrying his résumé for a job above his head. He is confused and keeps repeating himself and we will not let him in the door of the courthouse. He climbs in a window with a razor in his pocket.
• 404 is “razor,” and the rule is character evidence. Think about the crazy guy with a straight razor who runs up and cuts your throat because you forgot to request notice of his prior convictions under 404(b).
• 601 is “chest.” Imagine an insane person and a child standing side by side beating their chests and bellowing that they want to want to testify. The rule is about competence to be a witness.
• Imagine they are yelling at Moses. 602 is “chosen,” and the rule is personal knowledge. Think of Moses, one of the chosen people, stopping to use all five senses: seeing, hearing, smelling, tasting, and feeling.
• 801 is “fist,” and the rule is the definition of hearsay. The prosecution witness is a police officer. He starts trying to say what the witnesses said at the scene and you run up to the stand and try to hit him in the mouth with your fist, but he grabs a fission bomb he has in his pocket.
• 802 is “fission,” and the rule that excludes hearsay. The cop throws the fission bomb, blows up the courtroom, and the hearsay is destroyed. But your Ma is exposed to the radiation.
• 803 is “fuse Ma,” and is the rule of hearsay exceptions. There are 24 hearsay exceptions. (The last federal exception has been transferred elsewhere.) Think of your Ma as actually being a Siamese twin or two Ma’s fused together as a result of the radiation exposure. She (they?) are wearing a dress with 24 pockets, and each one contains one of the exceptions.
• Then you will want a hook to Rule 804 (“face sore”) when the declarant is unavailable.
• You will likely want to invent your own images for those I have given above. Some of the other words I have used for other rules: 405 is “wrestle.” 609 is “chess bee.” 611 is “jaded.” 701 is “cast.” 702 is “cousin.” 805 is “fossil.” 901 is “pest.” 1006 is “Texas Sage.”

I know all of this sounds awkward. But do not expect to have to keep the clues forever. After a while, the major memory symbols, like a plaster cast into which the gold is poured, is broken away and not needed. I no longer think of Moses when I think of Rule 602 or rust when I think of Rule 402; my mind goes straight to the rule number.

Chunking

6.   We do not learn phone number in groups of seven, but break them into groups of three and four. Chunking is not so much a memory technique like those described above as an organization of the material in a matter that groups similar items to help remember each in the group. The rules of evidence lend themselves to chunking. Here are some recommendations:

• The most important evidence chunk is composed of Rules 602, 402, and 802. If you add the Confrontation Clause (with Crawford) to those, you will use them over and over during a trial. Much of the police officer testimony we hear in the courthouse should be excluded under these four objections. Evidence offered by a police officer witness for “background” are often violations of these rules.
• Three easy ones used in every trial: 403 (prejudice), 615 (production of witness statement), 614 (The Rule).
• Preserving Error: 103, Texas Rule of Appellate Procedure 44.2
• Reputation: 404(a), 608, 803(21).
• Crimes: 404(b), 609, 803(22).
• Opinions: 701, 702, 704. Daubert objections.
• Dealing with paper: 902, 803(6), 803(8), 901(10)
• Dealing with doctors: 803(4), 803(18)
• 803 exceptions (dealing with action at the scene): 1, 2, 3.
• To keep things orderly: 611(a, b, and c), 1006.
• Client’s statements outside of trial: 801(e), 803(24), Texas Code of Criminal Procedure, Art. 38.21.
• Dealing with snitches: 801(e)(2)(E), 508.
• Spanish-language issues: 604, 1009, 901(6)
• What the feds have and the state lacks: 1101, 807, 706, Fed CCP 26.2.

Drawbacks to the memory systems for learning lists

I find myself using these first six steps and this method over and over for memorizing lists. But, now for the bad news. Even after you have gone to the trouble of learning the method and memorizing all of the rules by number and in order, within a day or two, if you do not repeat them every day, you will forget them. There is the further problem that I find that by the time I have worked through a list, I am so tired of them that I cannot seem to force myself to do a daily repetition. The benefit I have discovered, though, is that even forgetting the rules by their numbers, there is a residual value. I will have gained a general familiarity of what the rules are and how to find them.

Sometimes, too, a rule will pop into my mind that I did not know I knew, and sometimes that happens in court when I really need it. There is no question that this method works well for parlor tricks, but the experts argue about its value for long-term learning. I still use the memory systems described above because I get worn out with plain repetition and return to the systems so I can make progress without being too bored of brute repetition. I also believe these methods can also be calming similar to other forms of meditation. So I return to them every so often to learn lists.

I have not, however, found these methods helpful for prose or poetry passages, or really even the text of the rules of evidence. I have tried using the methods for prose, but the examples are so long and contrived—forgettable, really—that with memory of prose of the text of the rules, I skip the methods and go to various types of repetition.

Learning poetry, prose, and texts of rules: the awful prospect of memorizing text

I think this is the hardest type of memory work, and apparently that is the consensus of the contestants in the memory competitions. The same guy who can remember 100 places of pi cannot memorize the Gettysburg Address. The methods just do not work as well for prose. On the other hand, memorized passages can be the most useful during different stages of trial. For the rhetoricians, the “treasury of eloquence” was an important part of the work of the orator. Any rule we read out loud to a judge in court should be on the list. Poems, like songs, may be a little easier because the rhyme and rhythm creates a structure that will clue us to certain words that follow. This may also explain why Homer keep mentioning “the rosy fingers of dawn”—the pattern helped him remember. Fortunately, we are not the only ones who need to memorize text, and there are several books that help with their own methods.

The most important passages to learn by heart

These are my suggestions in order of importance:

1.   “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Rule 602.

2.   Evidence if relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Rule 401.

3.   “Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Rule 801.

4.   “Declarant” means the person who made the statement. Rule 801.

5.   “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. Rule 801. (For the Texas rule, substitute the word “expression” for “assertion” and study 801(c) “Matter asserted”).

6.   If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Rule 701. (For Texas Rule, “opinions or inferences.”)

How to learn the text of the rule by heart

Here are some of the things I have tried for learning the text of the rules of evidence and sooner or later, something seems to work.

1.   Read all the commentary and cases about the rule you can find. Getting context helps in remembering the language of the rule.

2.   Write each sentence in the passage ten times.

3.   Diagram the sentences. http://homeworktips.about.com/od/englishhomework/ss/diagram_10.htm

4.   Strip the sentences down so you can see the subjects, verbs, and objects. That way even complex rules like 702 become manageable: Witness may testify, if knowledge will help trier; testimony is based on facts or data; testimony is product; and, expert has applied principles and methods.

5.   Read the passage into a recorder app on your phone in
a dramatic manner and then play it back to yourself, over and over. This also will let you know how you sound
so you can work on the fifth canon of rhetoric, pronun­tiatio.

6.   Put the passage to music with a familiar tune. (Also, good for pronuntiatio). Here is an example, to the tune of “Are you Sleeping, Brother John?”

A witness may testify
to a matter
only if evidence
is introduced
sufficient to support a finding
that the witness
has personal knowledge
of the matter.

Try it out; it almost works.

7.   Write a poem about the rule or rewrite the rule so it rhymes or repeats. Here is my entry:

A Sonnet to Rule 602

We see, or hear, or taste, or feel, or smell.
Your witness must have knowledge binding.
So lack you not evidence to support a finding
To know his knowledge is personal.
The witness may himself claim he knows the matter.
We trust the senses and teachings of Aquinas
Through five great windows come the truth
Into our minds that sorts the good from clatter.
Only experts need not heed this rule.
They opine on data loose and free
O, expert under Rule Seven Zero Three
May you be qualified and not play the fool.
Our queen of evidence, Six Zero Two
We trust the most that which starts with you.

8.   Use the passage in conversation or in court. Sometimes your friends will indulge you and sometimes it will arise naturally. Be aware that even though you can handily recite the rule when you are alone, sometimes under pressure, it will not come. This is the “blocking” described as one of the sins of memory in Schacter’s book in the bibliography. Do not be too concerned—the paraphrase will still be better than it would have been without the work.

9.   Practice at night and then recite in the morning after a night’s sleep.

10.  Even after you have it word for word, keep reciting it so it will not go away.

Is it worth it?

So is all this work worth it? Alexander Pope provides solace for forgetting the matters learned with so much effort:

Education is what is left after all that has been learnt is forgotten. . . .

and

How happy is the blameless vestal’s lot! The world forgetting, by the world forgot. Eternal sunshine of the spotless mind! Each pray’r accepted, and each wish resign’d. . . .

—From Alexander Pope’s Eloisa to Abelard

Bibliography of memorizing the rules of evidence

This bibliography is neither in alphabetical nor chronological order. Rather, we lists the different books about memory and evidence as if we were preparing a course on memory with many required texts, and then putting them in an order for the class.

The first we offer is probably the least informative, but it is easily accessible:

Lorayne, Harry, and Lucas, Jerry. The Memory Book: The Classic Guide to Improving Your Memory at Work, at School, and at Play, Ballantine Books (1996). This is an easy and practical way to start, with little history or theory. Lorayne was a magician who also played memory tricks. The book does have some practical application for learning how to remember phone numbers—something people once did before there were cell phones. Also, it has some value for putting names to faces, but I still seem to always call people named “Dan” by the name of “Stan” after using the method. There are also many blogs that provide summaries of memory techniques and have suggestions, such as http://memoryskills.blogspot.com/2009/07/major-system.html.

Next, for readers who do not need to rush into immediate practical application, we recommend Foer, Joshua. Moonwalking with Einstein: The Art and Science of Remembering Everything, New York: Penguin Press (2011). This is written by a journalist with no previous experience in memory competitions who took off a year to learn memory techniques and then successfully participated.

For you very serious sorts who want a history and a summary of the great memory teachers, we suggest Yates, Frances A. The Art of Memory, Chicago: University of Chicago Press (1961). I love this book, and the Modern Library declared it one of the top 100 nonfiction books of the 20thcentury. It surveys the great memory teachers of history, most of whom can be found for free online. Quintilian is a great place to start. http://eserver.org/rhetoric/quintilian/11/chapter2.html#1

Schacter, Daniel L. The Seven Sins of Memory: How the Mind Forgets and Remembers, New York: Houghton Mifflin Company (2001). This is the best book I have read explaining why some things are forgotten and others stick in the memory. This book may be the basis for much witness examination: All testimony not given by an expert under Rule 702 is based on personal knowledge under Rule 602. Personal knowledge is based on perceptions of the five senses, and these can only be described by the witness to the extent they are remembered. This book also explains why eyewitness testimony is so weak and why so many firmly believed recollections, and therefore testimony, is false. For the purposes of this article, remembering the rules of evidence, it is much easier to memorize material if we know what our mind is doing with the information. I have asked psychologists about Schacter, and they seem to recognize him, so this should be good Rule 803(18) material in the right cases.

Mlodinow, L. Subliminal: How Your Unconscious Mind Rules Your Behavior. New York: Pantheon Books (2012). We really do not “record” anything in our memories like a video camera may. Rather, the human sensory system sends the brain about eleven million bits of information a second, but our brains handle between 16 and 50 bits a second. Our mind invents a story out of the selected information it can handle and then reinvents the story each time an event is recalled. For this reason, several eyewitnesses will all remember different events and the same eyewitness will remember the event differently every time he thinks about it, with greater changes over time. The unconscious is recognized from St. Augustine (though he does not call it that) to Marshall McLuhan as the best source of a memory palace. Everyone has the ability to infinitely (until we die or lose our minds, and then, according to Augustine, even afterward) recombine images to help us remember.

Vost, K. Memorize the Faith! (and Most Anything Else): Using the Methods of the Great Catholic Medieval Memory Masters, Manchester, New Hampshire: Sophia Institute Press (2006). This is to help Catholics learn and remember the facts of the religion. It develops the techniques of St. Augustine, St. Thomas Aquinas, and St. Albert the Great as they expanded upon Simonides (the guy the building did not fall on), and Aristotle and Marcus Tullius Cicero. Vost uses the method of loci and offers his version of a house and church as the places to put things you want to remember. I like the book as an example of putting the method to work on something a little more weighty than random numbers and lists of names.

Schulz, K. Being Wrong: Adventures in the Margin of Error, New York: HarperCollins Publishers, Inc. (2010). Being wrong is about a misperception (Rule of Evidence 602) or the wrong opinion formed from a perception (Rule of Evidence 701). Schulz quotes (probably misquotes, actually, but it is not so important here) St. Augustine as writing “fallor ergo sum”—I err, therefore I am. She makes a virtue of mistakes and explains why the fallacies are part of everyone’s remembrances and reasoning.

Del Gaudio, J. How to Become Fluent in Spanish: Not for Beginners, Not Quick and Easy, but Really Effective, New York: Published by John V. Del Gaudio (2013). This book is about memorizing words and phrases in Spanish. Most helpful is his suggestion about memorizing and reciting dramatically a paragraph from a well-respected author, Gabriel García Márquez or Horacio Quiroga, once a month. Del Gaudio is a lawyer, so I imagine he uses these techniques in law practice as well. I especially like that he is not afraid to tell us how hard all of this is. I would just as soon know this up front, and for that reason, the title to this article admits this as well.

I keep a reference work on my Kindle: Texas Evidence Rules 2014 Courtroom Quick Reference, Summit Legal Publishing (2014). It has both Texas and federal rules texts (but no annotations), so I can flip back and forth between the text of the two rules. The TCDLA phone app has the same information. These are not meant to be used in court for objections—they are too slow and, hey, why are we going to all of this trouble to spend our time staring down at a phone. Besides, if your federal courts are like the ones in Brownsville, you can not get the phones and iPads into the courtroom anyway.

Hampton, C., and Wischkaemper, P. TCDLA’s Annotated Texas Rules of Evidence and Rules of Appellate Procedure, Austin, Texas: Texas Criminal Defense Lawyers Association (2009); Brown, J., and Rondon, R. Texas Rules of Evidence Handbook, Houston, Texas: Jones McClure Publishing (2014). Goode, S., and Wellborn, O. Courtroom Handbook on Federal Evidence, Eagan, MN: Thomson Reuters (2014). These are the books I carry around and use in our monthly evidence seminars, although they are expensive and I do not always have the most recent volume of everything.

Evidence Treatises. Those multi-volumed tomes on evidence that nobody can afford can be a lot of fun, if you live somewhere with a law library. I have on my Kindle an early 1899 Wigmore: Greenleaf, S., Wigmore, J., and Harriman, E. A Treatise on the Law of Evidence. It is nice for some historical perspective. Both sets of the rules of evidence, Texas and federal, were adopted after I began practicing law and after I studied evidence with Mr. Sutton, so it is interesting to look at the common law that produced the Rules.

Some blogs worth browsing:

http://lawprofessors.typepad.com/evidenceprof/

http://federalevidence.com/blog

http://confrontationright.blogspot.com/

http://www.scotusblog.com/

The allocation of burdens in a motion to suppress hearing is a “Choose Your Own Adventure.” Unlike in trial, where we simply add up proof in a linear fashion, a motion to suppress in Texas courts has burdens which are raised, lowered, and/or shifted back and forth based upon small and often trivial details. By decoding the riddle of procedure, you can make sure your client’s motion is decided on the facts and prevent the State from using a procedural escape hatch.

This article discusses the shifting burdens of proof under three different categories of evidence suppression: (1) Constitutional Fourth Amendment motions to suppress; (2) statutory motions to suppress; and (3) motions to suppress purported scientific evidence under Kelly and Daubert.

Burden of Proof in a Constitutional Motion to Suppress

Other than of the presumption of innocence, there are few presumptions in criminal law more powerful than the presumption of Fourth Amendment unreasonableness that attaches to warrantless searches and seizures. See Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Katz v. United Sates, 389 US. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Guerrero-Barajas, 240 F.3d 428 (5th Cir. 2001). This presumption, alone, is always sufficient grounds for suppression when an officer is unable to justify his actions through a showing of probable cause or reasonable suspicion. However, unlike the presumption of innocence, this presumption is not automatically afforded to a criminal defendant in Texas.

In 1970, in the case of Mattei v. State, the Court of Criminal Appeals determined there also exists a presumption of proper police conduct in investigating crime and held that defendant-movants should bear at least some burden in a motion to suppress. Mattei v. State, 455 S.W.2d 761 (Tex. Crim. App. 1970) This conclusion was attributed to two opinions issued by the Fifth Circuit in the wake of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and the newly modified federal exclusionary rule. Mattei, supra, 455 S.W.2d at 765 (citing Rogers v. United States, 330 F.2d 535 (5th Cir. 1964); United States v. Thompson, 421 F.2d 373 (5th Cir. 1970)). Not surprisingly, the authority cited in Mattei fails to make any mention of the at-that-time-recent notion that searches and seizures without a warrant are presumptively unconstitutional. Instead of abandoning the old ways for the new, the Mattei court chose a middle road and allowed both the presumption of unreasonableness in warrantless police conduct and the presumption of proper police conduct to curiously exist side by side.

Summarizing what is still the current status of the law in this area, the Court of Criminal Appeals would later demonstrate that they did indeed intend for both of these presumptions to exist together in harmony. The Court explained:

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has placed the burden of proof initially upon the defendant. As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the state is unable to produce evidence of a warrant, then it must prove the reasonableness of the search or seizure [citations omitted, emphasis added].

Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986).

Harmonizing these two presumptions in the search and seizure context results in a peculiar proposition of law: a presumption that police always possess a warrant. Despite being contrary to reality in the vast majority of cases at the time of Russell and in the vast majority of cases since, the Court of Criminal Appeals would reaffirm Russell in 2005 as the proper allocation of burdens in a motion to suppress. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App., 2005).

Burden of Proof in a Statutory Motion to Suppress under Tex. Code Crim. Proc. §38.23

A motion to suppress based on a purely statutory violation (e.g., DWI suspect induced to consent to breath test by extra-statutory consequences of refusal) is a completely different adventure. The Texas version of the exclusionary rule, sometimes referred to as a 38.23 motion (see Tex. Code Crim. Proc. Article 38.23), hardly operates in the same fashion as its federal counterpart.

A recent undertaking by the Court of Criminal Appeals to explain the proper execution of a 38.23 motion was in the 2011 case of State v. Robinson. 334 S.W.3d 776 (Tex. Crim. App. 2011). In Robinson, at a hearing on the defendant’s motion to suppress a DWI blood draw, the State insisted on assuming the burden of proof. The Court obliged and required the State to prove that blood was drawn not only in compliance with the defendant’s constitutional rights, but also in accordance with Tex. Transp. Code § 724.017 (statute requiring, among other things, the taking of a blood specimen in a sanitary place). The trial court suppressed the blood not based on a violation of constitutional rights, but rather the State’s failure to show compliance with the statute. The Court of Criminal Appeals reversed, holding that a defendant moving for suppression on the basis of noncompliance with a statute has the burden as the moving party to produce evidence of a statutory violation. Id. at 779.

There is good company for those perplexed by this holding. Judge Price (Robinson dissenting), and to a lesser degree, Judge Cochran (Robinson concurring), both aptly note that at trial, it would be the State as the proponent of evidence who would “bear the burden of proving [the law] was satisfied.” Judge Price writes:

I fail to see what sense it makes to assign the burden of proof differently when a defendant first broaches the issue in a pre-trial motion to suppress rather than waiting until trial to insist that the State be held to its evidentiary predicate.

To whatever extent the Robinson holding encourages defendants to hold on to 38.23 issues until trial, it promotes judicial inefficiency. However, in this regard, Robinson is a fairly anomalous opinion. Rarely has it ever made strategic sense to file a pretrial motion to suppress based on 38.23 because most 38.23 issues focus upon the State laying a proper predicate to the admission of evidence rather than the establishment of a detailed factual record which should be made outside the presence of a jury.

One of the stronger points that could have been addressed in Robinson is why the courts should treat a pretrial 38.23 motion differently than a pretrial motion regarding the admissibility of scientific evidence. Should the courts ever wish to begin reconciling or simplifying all the rules of procedure that apply in motions to suppress, the framework may have been laid in a case discussed below.

Exclusion of Evidence Based on Tex. R. Evid. 702

In October 2013, the Court of Criminal Appeals issued an opinion in State v. Esparza outlining in detail how a Rule 702 hearing is properly conducted. State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013). Writing for the majority, Judge Price addressed whether an appellate court may consider a newly raised Rule 702 theory to save a trial court’s otherwise erroneous granting of a statutory motion to suppress in which the trial court misallocated the 38.23 burdens of proof. Judge Price wrote:

It is only “[o]nce the party opposing the evidence objects . . . [that] the proponent bears the burden of demonstrating its admissibility.” Allocation of the burden with respect to scientific reliability as a function of Rule 702 should be no different in the context of a pretrial motion to suppress than it is when the issue is raised during the course of trial. Whether at trial or in a pretrial hearing, the State (as proponent of the breath-test results here) can, of course, be made to satisfy its burden to demonstrate reliability. But it is not called upon to satisfy that burden unless and until the appellee (as opponent) has made a specific objection that those test results are scientifically unreliable or (perhaps) until the trial court, in its capacity as the gatekeeper of the admissibility of scientific evidence, should sua sponte call upon it to do so.In this case, as the court of appeals correctly observed, nothing happened at the trial court level to alert the State that the scientific reliability of the breath-test evidence, as a function of Rule 702, was in play at the hearing on the pretrial motion to suppress evidence [emphasis added].

State v. Esparza, supra, 413 S.W.3d at 86–87.

This explanation is far from groundbreaking; it is the same procedure that has been employed since Kelly and Daubert became the standard for admissibility of scientific evidence. The value of the Esparza case is mostly scholarly. A significant portion of the Esparza opinion is dedicated to juxtaposing the procedures in Texas for the three different types of evidence suppression discussed in this article. By doing so, the majority opinion either unintentionally or perhaps passive aggressively demonstrated the absurdity in maintaining three different sets of procedure for nearly identical legal mechanisms.

Perhaps Esparza can serve as a building block in an effort to employ a simplified single standard in all motions to exclude or suppress evidence. But, for now, the “Choose Your Own Adventure” model remains the law of procedure in Texas and will undoubtedly continue to provide no shortage of cautionary tales. Even with a simple understanding of the nuts and bolts of the shifting burdens of proof in a motion to suppress, a criminal practitioner will occasionally be able to exploit his or her opponent’s burden and provide value to clients.

Following is what we, as practitioners, should take away from these cases. The diagram on the facing page sets out the nuts and bolts and provides a quick black letter reference along with some lesser-known provisions of the code that can be quite handy in in any type of motion to suppress hearing.

Texas Code of Criminal Procedure Article 28.01. Pre-Trial

Sec. 1

(6) Motions to suppress evidence—When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court;

Texas Code of Criminal Procedure Article 28.02. Order of Argument

The counsel of the defendant has the right to open and conclude the argument upon all pleadings of the defendant presented for the decision of the judge.

Has any trial judge ever said, “Well, the Defendant has cancer, so I will assess the maximum sentence available,” or “Leukemia? He has leukemia? Then he gets life without!” Such a sadistic lack of compassion—that a person should suffer an enhanced punishment because of a condition that he or she did not purposefully acquire, a condition that causes suffering and disability—tarnishes a reputation for fairness. This happens in every courtroom, however, when we present a defendant who experienced permanent developmental damage.

Defendants get beaten as children. They get drunk in the womb. They get knocked out and come around—too often—with impaired cognitive abilities as a lingering reminder. They get abandoned before they can protect or feed themselves. Like a cancer, these injuries from early childhood can eat through a mind, warp a personality, and make permanent, unsought changes to the individual. Defendants do not trust—they cannot trust. They suspect, they stalk, and they harass. They do not control themselves; they impulsively steal, or strike out with a fist or knife or a gun, even though the consequences are immediate. They do not recognize immediate consequences. They get drunk or high and lose jobs and families. They harm other people, and they harm themselves.

But the courts routinely ignore defendants’ suffering when they would offer compassion for any other individual. The court sees the harm a defendant causes and sees the threat of future harm. In mitigation, we strive to reveal the root causes of the harm, but how can we expose the root cause without exaggerating or amplifying the future threat? I know of several methods that do not work completely.

The “Disease Model” argues that a defendant, through no fault of his own, has succumbed to some crime-inducing “pathogen” such as physical or sexual abuse, addiction, or brain damage, which compels aberrant behavior. But the Disease Model falls short of offering a complete defense; it fails to incorporate any consideration of Free Will. The United States Supreme Court recognized the shortcomings of the Disease Model in a case that offered alcoholism as a defense:

It is one thing to say that if a man is deprived of alcohol his hands will begin to shake, he will suffer agonizing pains and ultimately he will have hallucinations; it is quite another to say that a man has a “compulsion” to take a drink, but that he also retains a certain amount of “free will” with which to resist. It is simply impossible, in the present state of our knowledge, to ascribe a useful meaning to the latter statement. This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions.

Powell v. Texas, 392 U.S. 514, 526, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

The “Narrative Model” directs trial counsel to explain a defendant’s life in the terms of a familiar story, hopefully with the defendant as the protagonist. See Amsterdam, Anthony, and Bruner, Jerome, Minding the Law, p. 110, Harvard, 2002. A defendant overcomes the hardships he has faced, even hardships he has created, and hopefully the listener will want him to “win” in the end, with “winning” equating to a merciful sentence. However, this model too falls short by requiring a receptive listener to plunge into the story. Often, however, we cannot count on a receptive listener.

The standard “fallback” model involves finding elements that would make an objective person pity the defendant, tossing up these facts, one after another, and hoping one sticks. Yet this model too falls short by failing to provide a context that explains why the court should care about the circumstances that befell the defendant.

None of these models deliver a sure-fire merciful outcome, but the lack of a perfect way, however, does not mean sentencing should be a roll of the dice. Sentencing should be more than an afterthought; it is a search for truth, revealing both what the defendant did and why. Just as we contemplate how best to pre­sent evidence at guilt-innocence, obtaining a beneficial sentence requires conscious effort to understand the evidence available, and how best to present it in a persuasive manner that explains the defendant as a unique individual, albeit a flawed one.

By thinking about mitigation in the same manner we think about guilt-innocence presentations, by using a calculated, systemic method (or model) of presenting mitigation, we can provide the maximum opportunity for the court to see the defendant as a damaged human being who possesses free will, but who made decisions in the context of an emotional or chemical or psychological battlefield—not in a safe, calm, and protected office or home. By systemically thinking about mitigation, we take advantage of the defendant’s greatest weapon in the battle for mercy—and that weapon is our time, our attention, and our effort. While we cannot control what a sentencer thinks, we can nonetheless suggest a path for their thought, a path which, with conscientious effort, will lead to a just sentence and mercy.