Monthly archive

January 2021 - Page 2

Current Issue: January/February 2021

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Features

17 | Advocating for Criminal Defense: TCDLA Lobbyists Head to the State Legislature – By Shea Place
19 | The Boy with the Crime Scene Tattoo: Tattoo Evidence in Texas Courts – By John G. Browning
21 | Dealing with Stress, Isolation & Illness in the Age of COVID from a Psychiatric Perspective – By Leonard Weiss, M.D.
24 | The Road of Recovery – By Anonymous
27 | Expert Witnesses and Challenges to Expert Testimony Pt. 2 – By Craig Jett
33 | ABCs and 123s of Parole Law: An Introduction to Parole Law Pt. 2 – By Sean David Levinson

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
8 | Ethics and the Law
9 | Chapter and Verse
10 | Federal Corner
13 | From the Front Porch
15 | Shout Outs

Departments

4 | CLE Seminars and Meetings
37 | Significant Decisions Report

Online-Only Articles

Blinded Justice: Lessons Learned from Trying a Case Via Zoom – By Brent Mayr with Sierra Tabone
HIPAA in the Age of COVID – By Clifford Duke
Pandemic at the PDO – By Anonymous

President’s Message: Time for Bail Reform, But Only If It’s Done Right

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As the 87th Texas Legislative Session begins (and is scheduled to run through May 31, 2021), Supreme Court of Texas Chief Justice Nathan L. Hecht has weighed in on an important and surprising topic: bail reform.

Chief Justice Hecht, along with David Slayton, Administrative Director of the Office of Court Administration, submitted an opinion piece to the Dallas Morning News (DMN). Entitled, “If Texas doesn’t reform its bail system, federal courts likely will,” it is really worth a read.

Now you may be asking yourself, why is a civil appellate justice – whose legal background includes partnership at a white-shoe firm in Dallas — wading into the mostly criminal law issue of bail reform? That’s a fair question. Perhaps the answer lies in the landmark settlement in November 2019 of a federal lawsuit successfully challenging the automatic wealth-based detention of tens of thousands of impoverished people every year in misdemeanor cases in Houston. Chief United States District Judge Lee Rosenthal approved an agreement aimed at releasing 90-95% of misdemeanor arrestees in Harris County, without substantial cash money or a surety. Unfortunately for taxpayers, it was not before Harris County spent $9.1 million on outside legal help defending an obviously unconstitutional bail system. The settlement also required Harris County to pay an additional $4.7 million in legal fees for the plaintiffs.

Whatever the motivation for what appears to be a bipartisan effort to address bail reform at this moment in our state’s history, Chief Justice Hecht’s opinion is a welcome addition to a debate that has raged for many years. He is the top state jurist in Texas and our governor and state legislators listen to him. We criminal practitioners should, as well.

Chief Justice Hecht’s and Administrative Director Slayton’s well-written, five-point proposal for bail reform raises some difficult questions. Here is how criminal defense lawyers and our many allies should respond to each point in the DMN piece:

  1. “[G]ive judges validated pretrial risk assessment information for all defendants to make better-informed decisions about bail.” – Putting aside the difficulty of confirming underlying information in a pretrial risk assessment and statistically tracking it for validation, I think we can all agree that more information is better. The problems here are, (a) it might be enormously expensive to implement systems in all 254 Texas counties and, (b) getting risk-assessment information into the hands of judges, magistrates, prosecutors, and defense lawyers (when the accused has counsel), might slow down the process of bail and release. Even an extra day in jail might mean the difference between a person going back to work versus losing their job. Risk assessments hardly seem worth it for most misdemeanors and non-violent felonies. Perhaps risk assessments — which are already done in many Texas jurisdictions — should only apply to certain categories of felony offenses, where the nature of the alleged crime dictates a heightened scrutiny of the bail process.
  2. “[A]sk voters to amend the Texas Constitution to allow judges to hold high-risk, potentially violent defendants without bail.” – This is a non-starter. Article 1, Sec. 11a of the Texas Constitution provides a laundry list of situations in which potentially dangerous arrestees may be held without bail. These include arrestees with multiple prior felony convictions, defendants who commit a felony while out on bail for an indicted felony offense, arrestees accused of using a deadly weapon after being convicted of a prior felony, and arrestees who allegedly commit certain types of violent or sexual offenses. Additionally, Article 1, Sec. 11b allows for detention without bail of arrestees accused of felonies or offenses involving family violence, when bail is subsequently revoked or forfeited for a violation of a condition of release. Texas already has enough legal tools to hold people without bail. We don’t need any new ones. Bail reform must not be predicated upon activist measures to hold presumptively innocent people indefinitely, while their cases await trial. Doing so would defeat a major purpose of bail reform — namely, to make it easier for the accused to gain their freedom while awaiting resolution of legal matters.
  3. “[P]rovide pretrial supervision for those released.” – This is another expensive and unnecessary proposal. Texas judges already have authority to set conditions of bail and place defendants on pretrial supervision. What’s the point of mandating it? We should trust trial court judges to order pretrial supervision only in cases where it is most appropriate.
  4. “[C]ollect data to verify that the system is working as it should.” – This is an excellent proposal, provided we can all agree on criteria for determining when the system isn’t working and what to do about it. Any data collection and verification provision in bail reform legislation should not include some automatic solution that kicks in when, say, a certain percentage of arrestees miss their court dates. You don’t fine-tune an expensive vehicle with a sledge hammer.

Bail reform is an achievable and worthy goal, but it must be done right. We should be prepared to wait if it’s not. There is no question that Chief Justice Hecht and Administrative Director Slayton are correct when they say, if Texas doesn’t reform its bail system, federal courts likely will. In that vein and based on what we’ve seen thus far in federal lawsuits, Texas criminal lawyers and our allies should be willing to let this play out in federal courts if we can’t get reasonable proposals. TCDLA’s Legislative Committee, leaders, and lobbyists are interested in hearing more.

Executive Officer’s Perspective: TCDLA Welcomes the 2021 JTIP Class

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“Under our Constitution, the condition of being a boy does not justify a kangaroo court.” – In re: Gault, 387 U.S. 1, 28 (1967).

Juvenile Training Immersion Program (JTIP), TCDLA and the Texas Indigent Defense Commission have teamed up to bring the “gold standard” of juvenile defense training to Texas. Special kudos to Geoff Burkhardt, TIDC Executive director for this idea. The Juvenile Training Immersion Program (JTIP) isn’t your usual CLE. Instead, it’s a hands-on, immersive, 42-lesson training program that emphasizes the specialized role of juvenile defense counsel and the unique knowledge needed to provide meaningful representation to our youngest defendants. JTIP trainings aren’t a lecture—instead, JTIP trainings use small groups with intensive on-your-feet exercises in a mix of hands-on case scenarios, skill-building drills, facilitated discussions, and more. These innovative elements strengthen your trial skills and deepen your knowledge of juvenile defense.

JTIP is a creation of the National Juvenile Defender Center (NJDC). NJDC in a non-profit organization created in the 1990s to improve the quality of juvenile defense. NJDC provides training across the country on juvenile defense and works to raise the profile of the specialization through training, technical assistance, publications, and amicus briefs. You can learn more about NJDC, download their policy briefs and other resources at http://njdc.info.

TIDC and TCDLA recognized the need for training in this important area, and in 2019 applied for funding through the State of Texas’ Edward Byrne Justice Assistance Grant. This fund, provided by the U.S. Department of Justice and administered by the State of Texas, is usually awarded to law enforcement agencies. The Texas JTIP Project is the first time that these funds will be used to provide training to defense counsel.

We have selected the 18 attorneys below to be part of an elite corps of Certified JTIP trainers across the nation. They are scheduled for a training February 16-18, 2021, in Austin. They will then create the training and materials specific to Texas Laws. TIDC and TCDLA will bring six free regional juvenile trainings in the spring and fall of 2021. The seminars will cover the critical importance of specialized defense counsel in juvenile courts.

Welcome to our Texas Trainers!

Donna Broom, Tyler
Kristin Brown, Dallas
Sara Casner, Austin
Ruben Castaneda, Austin
Scott Constantine, Austin
William Cox, El Paso
Dolores Esparza, Dallas
Rebecca Garcia, Dallas
Todd Greenwood, Wichita Falls
Steven Halpert, Houston
Steve Keathley, Corsicana
Michelle Latray, Groesbeck
Melanie Lister, Austin
Michael Parson, Edinburg
Laura Peterson, Dallas
Scott Ruplinger, Austin
Stephanie Stevens, San Antonio
Nydia Thomas, Austin

Co-authored with Kathleen Casey-Gamez

Editor’s Comment: Here for Each Other

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A new year. A fresh start. Or so it’s supposed to be. We are all still dealing with COVID-19 and all its many implications on our profession. Many of us are balancing work with helping our children with connected learning. Some of us have lost loved ones. We have all been, and continue to be, impacted. Amidst all this, please know that TCDLA continues to be out front fighting for us. Your officers and executive director work incessantly for the interests and benefit of all of us. Recently, our leadership reached out to Governor Abbott about vaccine prioritization for criminal defense lawyers. After all, as we know, criminal defense lawyers are essential to a fully functioning criminal justice system.

Keep on keepin’ on (as my Dad would say), stay safe, and let’s continue to take care of each other.

Sarah

Two New Year Reads

I want to share a couple of books with you that I recently read and think you will enjoy.

Uncomfortable Conversations with a Black Man
By Emmanuel Acho

I had heard about this book a while back and considered reading it but honestly just happened to pick it up on a whim recently. I’m so glad I did. I couldn’t put it down. The book is exactly what its title indicates. There’s nothing pretentious about it. Acho, the son of Nigerian immigrant parents who grew up in Dallas, played for the NFL, and who now is an analyst on Fox Sports, fully acknowledges his experience is not representative of all black people, and that gives the book a certain credibility. Each chapter begins with a question – a question many people have thought if not wondered out loud at some point. Then, each chapter discusses the history behind the question, the uncomfortableness around the question itself, and how to come together. The book is appropriately divided into three parts: 1) You and Me; 2) Us and Them; and 3) We. Acho doesn’t talk down to the reader or make the reader feel ashamed, and he provides actionable suggestions to become a part of the solution. This is a quick but thought provoking read. You will learn something about yourself and someone else. As Acho points out (and we all know from experience), black men are disproportionately arrested, convicted, and imprisoned in our justice system. You won’t regret spending the time to read this book if you haven’t already.

Murder in Montague: Frontier Justice and Retribution in Texas
By Glen Sample Ely

Even though I’m a Baylor/Texas Tech girl, Mr. Ely and the University of Oklahoma Press was kind enough to send me Murder in Montague to review. If you love history, this book is for you.

On a sweltering August night in 1876, a Methodist minister, his wife, and children were brutally slaughtered in their North Texas home. Acting on deathbed testimony, three men were arrested and tried for the murders. The book is a blend of true crime reporting, social drama, and legal history and presents a vivid snapshot of frontier justice in Texas following the Civil War.

The sheer brutality of the Montague murders terrified settlers already traumatized by decades of chaos, violence, and fear – from the deadly raids of Comanche and Kiowa Indians to the terrors of vigilantes, lynchings, and Reconstruction lawlessness. But the crime’s aftermath – involving five Texas governors, five trials, five appeals, and life at hard labor in the state’s abominable, inhumane prison system – offered little in the way of reassurance or resolution.

Viewed from any perspective, the 1876 murders were both a tragedy and a miscarriage of justice. Combining the long view of history and the intimate details of true crime reporting, this book captures this moment of reckoning as vigilante justice grudgingly gave way to an established system of law and order.

Ethics and the Law: Just Visiting

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There is becoming an issue with visiting judges – some have been alleged to have ethics issues.

Now with the back log of cases more visiting judges will be used. These judges may have been defeated in last election. The voting public did not want them so why do lawyers have to accept them? It may be they were defeated because they had an “R” or a “D” by their name. But it could be because the voting public did not want them to be Judges. 

Ever get hired on a case and it falls in a court where you and the Judge have not, and never will, form a bonding relationship?

The section in the Government Code that applies to objecting to a visiting judge is 74.053. 

GOVERNMENT CODE—–74.053

Subsection (d) was amended after Lanford, see infra, was decided.  

(a) When a judge is assigned to a trial court under this chapter:

(1) the order of assignment must state whether the judge is an active, former, retired, or senior judge; and

(2) the presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge.

(b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case.

(c) An objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. The presiding judge may extend the time to file an objection under this section on written motion by a party who demonstrates good cause.

(d*) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.

(e) An active judge assigned under this chapter is not subject to an objection.

(f) For purposes of this section, notice of an assignment may be given and an objection to an assignment may be filed by electronic mail.

(g) In this section, “party” includes multiple parties aligned in a case as determined by the presiding judge.

Johnny Holmes tried to object to a defeated judge being assigned to hear criminal cases in Harris County. See Holmes v. Lanford, 847 S.W.2d 581 (1993). The Court of Criminal Appeals ruled that the section was clear that it only applied to civil cases.

After that case was decided, section (d) was added at the request of the Houston DA’s office to cover all cases. I was the TCDLA legislative representative at the time and was present when the legislation was passed. I believe that the legislative history would reflect that it was a direct result of the case holding that section (a) and (b) as written, before the changes, only applied to civil cases. The much-needed addition was section (d) which now says:

(d) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.

No case has been decided under this section because it is so clear. I agree this applies to criminal cases. Since pointing this out, Dan Mills has not sat as a visiting judge in Travis County.

Written by Betty Blackwell

At least one Houston lawyer believes Lanford is still good law.  His reasoning is that even though the statute was specifically amended to address defeated judges, which was the case in Lanford, the legislature did not add in the amendment that it applies to criminal cases. Lanford told the legislature that they needed to say that, and they chose not to.

So his argument is that it only applies to civil cases. There are no cases decided under that section since its amendment. I believe that is because administrative judges, who assign visiting judges, just don’t want to risk an entire case going away since it is easier to assign another judge.

For the huge number of pro prosecutor judges who have been defeated, I think we need to be making the objection.

Thanks to Betty Blackwell and Sharon Bass.

*Section (d) was amended after Lanford was decided.

Chapter and Verse: Double Jeopardy

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Dear and Beloved Colleagues,

This month, I write to you from the fog of eternal social distance. Me and my big orange O’Connor’s are snuggled up in bed together with a cup of tea and a burning desire to get to know one another since, you know, we have time on our side. There’s a sink full of dishes I’m ignoring, a toddler in the next room clomping around in my long-neglected high heels, and a feral cat noisily spraying his potent urine all over the outside of my bedroom window since one of the forsaken neighbors literally leaves 50 lb. bags of cat food open on his front porch. But inside my bedroom is a picture of calm, just me and the tea and the Code.

Somehow this thing always knows just what I need to hear. The next section is always exactly on-point. Like dipping into the Bible (ok, not so much the Old Testament with all the begats and the wrath), it always seems weirdly prescient. Today’s reading is §1.10-JEOPARDY. In a time so reminiscent of “Groundhog Day” where each day is the same as the last, jeopardy seems especially poignant. Even more, I am actually struggling with a jeopardy issue in a trial division case in which I seem to have gotten myself entangled recently.

No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

The rule seems extremely straightforward, but it turns out it comes with a long and bizarre series of asterisks that ensure that almost no one really understands what jeopardy is, except probably our wizened TCDLA presidents. Fortunately, those guys are on our side. Unfortunately, everyone else thinks they know what jeopardy is because the rule looks so deceptively simple.

A long time ago when I was a baby public defender, someone gave me a job for which I was not yet ready. Across the stormy ocean, very far from home, and without access to a legal research database, I hacked (with a blunt machete, dear friends, not a computer) my way into the law.

On that tiny island that used U.S. law and precedent, I represented a man who had lost all hope. He was an expat from the Philippines working for a pittance at a local tourist hotel. The job did not live up to what was promised, and he was homesick, broke, and struggling with undiagnosed mental health problems while living in a filthy, sweltering barracks with other workers. One day he grabbed a knife and threatened to kill himself in front of his only friend there, a fellow countryman who tried to talk him out of it. As the talking seemed to not be working, the friend struggled with my client over the knife, and the client, in the struggle, stabbed the friend in the neck inadvertently. Horrified and shocked, he jumped out of the window of the barracks, hoping to hit the sharp rocks beneath him. Of course, friends, you know what happened. He landed in the water. A local man saw him and quickly rescued him, and then he became my client.

Locked up in the small psychiatric cell at the local hospital, my client grieved and wept. The single psychiatrist in that country was also from the Philippines and she did her best to counsel and comfort him. I could tell she wanted to help him, but she found him competent, and I believed her. The DA offered to dismiss charges if he agreed to deportation. The family of the dead man petitioned the Philippine government to press murder charges and render harsh punishment. I tried to imagine what that was in the Philippines and I decided it was probably more akin to a lynching than a trial.

I sat on my porch with some other American lawyers I knew, drinking lukewarm Asahi beer and smoking harsh Korean cigarettes. “I think we have to prosecute him here, and then jeopardy attaches, and the Philippines can’t do anything to him.” I felt brave. We had double jeopardy protections; the Philippines had double jeopardy protections (I had bothered to check). That’s when I heard, for the first time, about the Separate Sovereigns doctrine. My heart lurched and for the millionth time that week, I realized again how inadequate I was.

Eventually, after a series of negotiations, the Philippine government agreed to confine my client to a mental hospital and not try him again if he were adjudicated of something in the island nation (not the Philippines) where charges were brought. I pleaded him to an involuntary manslaughter charge, and his sentence was suspended for ten years, with the only condition being that he leave the country and not return. Later, the Philippine consul brought me a box of instant coffee packets and a large pineapple. I am still unsure whether that gesture was personal or professional, but it was better received than the melting sack of frozen fish I once found on my coffee table after I woke up from a nap.

This is my round-about way of telling you, dear friends, that double jeopardy is weird. If you catch any sort of indication of it, much like a whiff of seafood coming from your living room on a warm, equatorial afternoon, it is a good idea to investigate immediately.

Stay safe and let me know if you need anything.

Love Always,
AJM

Federal Corner: A Nonroutine Border Search + A Leon Good Faith Issue = An Interesting Case

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In United States v. Leon1, the Supreme Court held that the Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.  (emphasis added)

On November 21, 2019, a panel of the United States Court of Appeals for the Fourth Circuit held that (1) the forensic searches of an airplane passenger’s laptop computer, cell phone, and digital media player, after he arrived at international airport, had to be regarded as “nonroutine;” (2) warrantless forensic searches of an airplane passenger’s electronic devices was not justified under the “border search” exception to warrant requirement; (3) subsequent warrant-backed searches of electronic devices did not constitute an “independent source” that cured any taint from prior warrantless, forensic searches; (4) but evidence did not have to be suppressed, given the agents’ “good faith” reliance on existing precedent.  United States v. Aigbekaen.2

A search of WestLaw’s ALLFED database reflects 5,215 cases in which a district or appellate court has cited Leon.3  In many of these, Leon’s good faith exception permitted an appellate court to affirm a conviction.  There are, though, other Leon cases where there is no issue as to a warrant.  Aigbekaen is one of those cases.

Judge Motz’ opinion reads, in part, as follows:

The Facts of the Case

In April of 2015, a minor alerted law enforcement officers that Raymond Idemudia Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of the investigation that followed, when Aigbekaen returned to the United States from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices. …

The Indictment and the Motion to Suppress

… a grand jury indicted Greene4 and Aigbekaen on six counts, all of which related to interstate sex trafficking of L. and transportation of her for the purpose of prostitution.

Prior to trial, Aigbekaen moved to suppress various pieces of evidence, including (as relevant here) any evidence recovered from the May 2015 warrantless forensic searches.

Aigbekaen’s Argument on the Motion to Suppress and the Government’s Response

Aigbekaen argued that the May 2015 forensic searches were unconstitutional because they were conducted without warrants and did not fall within the border search exception to the warrant requirement. Aigbekaen maintained that ‘there has to be a point at which the nature of the government investigation is so separated and so divorced from anything related to the border’ that the exception becomes inapplicable. He explained that the Government’s ‘general interest in enforcing domestic criminal laws’ does not constitute an interest justifying ‘border searches.’ The Government responded that, at the time of the forensic searches, it had reasonable suspicion both that Aigbekaen had trafficked L. for sex domestically and that he ‘might be bringing contraband in the form of child pornography into the country,’ citing for the latter argument only an ‘allegation from the manager of the hotel where the victim was recovered.’

The District Court’s Holding; the Jury’s Verdict; and, Notice of Appeal

At the close of the suppression hearing, the district court dismissed the Government’s child pornography argument as ‘a lot weaker’ but held that under ‘the traditional border search analysis,’ ‘the circumstances of where the property was and where the person was when the search occurred’ ‘trumped’ any need to justify the specific search. As a result, the court found that no warrants were required for the May 2015 searches. The court further reasoned that if any individualized suspicion was needed to justify the ‘intrusive’ forensic searches of Aigbekaen’s devices, the Government met this standard because HSI had ‘at least’ reasonable suspicion, if not probable cause, that the warrantless searches would reveal evidence of domestic sex trafficking.

The court thus denied the suppression motion, and Aigbekaen proceeded to trial. After considering testimony from over twenty witnesses, a jury found Aigbekaen guilty on all six counts. Aigbekaen timely noted this appeal.

Aigbekaen’s Argument on Appeal

Aigbekaen’s principal argument on appeal is that the May 2015 warrantless forensic searches of his laptop, iPhone, and iPod violated the Fourth Amendment. Although the Government contends (and we ultimately agree) that the good-faith exception to the exclusionary rule requires affirmance in any event, ‘when a Fourth Amendment case presents a novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for a court to decide the violation issue before turning to the good-faith question.’ United States v. Bosyk, 933 F.3d 319, 332 n.10 (4th Cir. 2019) (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring)).

The Standard of Review

We review the district court’s legal conclusions de novo and its factual findings for clear error, considering the record evidence in the light most favorable to the Government. Kolsuz, 890 F.3d at 141–42. Because the Government conducted the challenged searches without warrants, it bears the burden of proving, by a preponderance of the evidence, that an exception to the warrant requirement applies. United States v. Davis, 690 F.3d 226, 262 (4th Cir. 2012).

The Fourth Amendment

The Fourth Amendment requires that governmental searches and seizures be reasonable. In most cases, this requires a warrant based on probable cause. … ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ … (emphasis added)

The Border Search Exception

One such exception applies at our nation’s borders, where the Supreme Court has long recognized the federal Government’s substantial sovereign interests in ‘protecting … territorial integrity’ and national security, … blocking ‘the entry of unwanted persons and effects,’ … ‘regulating the collection of duties,’… and ‘preventing the introduction of contraband,’… These Government concerns are ‘at their zenith’ at the border, whereas an individual’s ‘expectation of privacy is less at the border than it is in the interior.’ … Thus, ‘at a border’ or its ‘functional equivalent, like an international airport … government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion.’ Kolsuz, 890 F.3d at 137 (internal quotation marks omitted). 

Nonroutine Border Searches

Although this ‘border search’ exception to the warrant requirement is broad, it is not boundless. Even when the exception applies, the Supreme Court has explained that certain ‘highly intrusive searches’ may qualify as ‘ “nonroutine” ’ and so require some level of individualized suspicion. Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582 (quoting Montoya de Hernandez, 473 U.S. at 541 n.4, 105 S.Ct. 3304).

Warrantless Searches Not Related to Sovereign Interests

… neither the Supreme Court nor this court has ever authorized a warrantless border search unrelated to the sovereign interests underpinning the exception, let alone nonroutine, intrusive searches like those at issue here. … This restriction makes particularly good sense as applied to intrusive, nonroutine forensic searches of modern digital devices, which store vast quantities of uniquely sensitive and intimate personal information, id. at 145 (citing Riley, 573 U.S. at 393–97, 134 S.Ct. 2473), yet cannot contain many forms of contraband, like drugs or firearms, the detection of which constitutes ‘the strongest historic rationale for the border-search exception,’ United States v. Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018) (Costa, J., concurring).

to conduct such an intrusive and nonroutine search under the border search exception (that is, without a warrant), the Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband. See also United States v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) … (emphasis added)

The Court’s Conclusion

Applying these principles to the facts at hand, we can only conclude that the warrantless forensic searches of Aigbekaen’s devices in May of 2015 lacked the requisite nexus to the recognized historic rationales justifying the border search exception. Of course, when Aigbekaen landed at the airport with his MacBook Pro, iPhone, and iPod in tow, HSI agents had not only reasonable suspicion but probable cause to suspect that he had previously committed grave domestic crimes. But these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband. Thus, holding the border search exception applicable here, based simply on the Government’s knowledge of domestic crimes, would ‘untether’ that exception from its well-established justifications. Riley, 573 U.S. at 386, 134 S.Ct. 2473. (emphasis added in the opinion)

The Court Rejects the Government’s Argument

… the Government asserts that Aigbekaen’s crime ‘clearly was one that is the proper subject of a border search, because sex trafficking is a crime “commonly involving cross-border movements.” ’ Supp. Response Br. at 13 (quoting United States v. Caballero, 178 F. Supp. 3d 1008, 1017 n.7 (S.D. Cal. 2016)). Of course, the general character of a crime may be relevant to an officer’s reasonable suspicion that it involves a transnational component. But inherent in the notion of individualized suspicion is some evidentiary basis for what a specific crime does involve in the individual case at hand, not just what it ‘commonly involves’ as a general matter. Here, the Government has offered no reasonable basis to suspect that Aigbekaen’s domestic crimes had any such transnational component. (emphasis added in the opinion)

The Court Rejects the District Court’s Conclusion

We also must reject the district court’s conclusion that a nonroutine, intrusive search’s physical and temporal proximity to an international border ‘trumps everything’ under the Fourth Amendment. To be sure, the Supreme Court has stated that routine border searches ‘are reasonable simply by virtue of the fact that they occur at the border.’ Ramsey, 431 U.S. at 616, 97 S.Ct. 1972. But in the context of ‘highly intrusive’ nonroutine border searches, … the Court has explicitly struck a ‘balance between the interests of the Government and the privacy right of the individual,’ Montoya de Hernandez, 473 U.S. at 540, 105 S.Ct. 3304; see also Riley, 573 U.S. at 385, 134 S.Ct. 2473 (instructing courts to evaluate any exception to the warrant requirement by weighing individual privacy interests against ‘legitimate governmental interests’ (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999))). Consistent with this balancing, we clarified in Kolsuz that a nonroutine search’s location is not dispositive of whether the border search exception applies; rather, it is the search’s relation to the Government’s sovereign interests that is paramount. 890 F.3d at 142–43.

Border Searches Unrelated to Sovereign Authority

… it would be patently unreasonable to permit highly intrusive forensic Government searches of travelers’ digital devices, without warrants, on bases unrelated to the United States’s sovereign authority over its borders. To be clear, we do not question the import of the Government’s general interest in combatting crime. But we cannot agree that this interest categorically eclipses individuals’ privacy interests in the vast troves of data contained on their digital devices when the suspected offenses have little or nothing to do with the border.

… where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply. Because no such nexus existed here, the warrantless, nonroutine forensic searches violated the Fourth Amendment.

Because the Government lacked sufficient individualized suspicion of criminal activity with any nexus to the sovereign interests underlying the border search exception, its warrantless forensic searches of Aigbekaen’s devices violated the Fourth Amendment.

The Good Faith Exception Saves the Day for the Government

The Government next contends that the good-faith exception to the exclusionary rule bars suppression of any evidence tainted by any constitutional defect in the May 2015 searches. Aigbekaen counters that the lack of a nexus renders the good-faith exception inapplicable. On this point, we must agree with the Government.

The evidentiary fruits of Fourth Amendment violations are generally inadmissible at trial. See Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). But the fruits of ‘a search conducted in reasonable reliance on binding precedent are not subject to the exclusionary rule,’ as that rule is designed ‘to deter future Fourth Amendment violations.’  …

In this case, the HSI agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an ‘established and uniform body of precedent allowing warrantless border searches of digital devices.’ … Although it has long been understood that the scope of a warrant exception should be tailored to the purposes underlying that exception, no court had yet applied that principle to require a warrant ‘for any border search, no matter how nonroutine or invasive.’ … Molina-Isidoro, 884 F.3d at 294 (Costa, J., concurring) (noting that ‘no reported federal decision has required a warrant for any border search’). Only in 2018 did this court recognize that ‘a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception’ and so require a warrant. Kolsuz, 890 F.3d at 143. And only today have we applied that principle to hold unconstitutional such an attenuated, warrantless, nonroutine forensic search at the border. (emphasis added)

Tellingly, Aigbekaen offers almost no argument against application of the good-faith exception, save for a question-begging allegation that the Government ‘attempted to exploit an exception to the Fourth Amendment warrant requirement.’ He may well be correct that even prior to Kolsuz, ‘the better practice’ would have been for the Government to get a warrant in the first place. But good faith does not mandate best practices. Given the uniform body of precedent that permitted warrantless searches at the border in May of 2015, we cannot help but conclude that the good-faith exception applies here. (emphasis added)

Conclusion

For the foregoing reasons, the judgment of the district court is AFFIRMED.

My Thoughts

  • Although Aigbekaen was decided more than a year ago, it just popped up in WestLaw’s Topical Highlights – Criminal Justice.  Even though this is not a new case, it is a good read.
  • When Leon was decided, it appeared that it would be applicable only to those cases in which law enforcement officers had obtained a search warrant.  Not so.
  • Aigbekaen was convicted in the United States District Court for the District of Maryland.  Chief Judge James K. Bredar presided over his trial.  As Aigbekaen illustrates, search issues are often challenging — even for chief judges.

From the Front Porch: Getting Back to Normal

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What exactly is normal?  How and when will we get back to normal in our criminal defense practice?  When will we have a jury trial without having to wear a face mask or shield?  When can we go to the courthouse without fear of contracting COVID-19 and bring it home to our loved ones?  All are good questions, and the likely answer is we just do not know.  However, with the rollout of multiple vaccines, a return to business as usual is on the horizon. 

I do not think returning to normal will resemble what it did a year ago.  With the use of Zoom, and the growing comfort with using it, I expect that the use of Zoom for certain court settings may continue.  This may be especially true in rural areas where the district court serves multiple counties over a large geographical area.  I do not think this is necessarily bad and may provide many rural practitioners the ability to become more efficient in their law practices.  We should be considering what that future holds for use of Zoom as a practice tool, and when the opportunity presents itself, having this type of conversation with our local judges.  I am not suggesting that we use Zoom for conducting a trial.  I also do not believe we should use Zoom for substantive contested motions, such as a motion to revoke, motion to suppress, or motion to revoke bond, as it is in the client’s best interest to have the opportunity to appear and be heard in open court on matters such as these. 

However, those of us who practice in rural areas are aware of the difficulties and limitations we sometimes experience in obtaining a setting on a preliminary pre-trial matter.  Zoom offers us an alternative.  I can think of several instances where using Zoom may be a preferable method to conducting a hearing for purposes of expediency, such as arraignment, preliminary or status pre-trial settings, contested pre-trial motions (so long as they are procedural in nature), and agreed-upon bond reductions and plea dispositions.  Under limited circumstances, I can envision where using Zoom can provide a cost-effective way for an out-of-county witness to testify.  This may be a double-edged sword and I would never agree to allow a complaining witness to testify via Zoom, as I believe it violates the client’s right to confrontation.  But there are legal arguments to be made on both sides of this topic, and we need to be prepared to respond to the state’s and/or court’s requests regarding these types of testimony or witness issues.

It will be up to our local judges to decide if Zoom provides an efficient alternative for conducting future court business.  I do think that some rural judges will continue using Zoom for the efficiency it provides and to reduce traveling to multiple counties for court appearances.  As criminal defense lawyers, we need to adapt to this new normal, and either embrace its use or be prepared to object to how it is being used, depending on the circumstances.  As such, our new normal may involve all of us becoming more fluent in the use of Zoom and digital evidence.  I know that I have been on the lookout for CLE seminars on these very issues and topics.  Everything changes over time.  We either adapt or become extinct like the dinosaurs. 

While a return to normal is what we are all waiting for, we need to embrace the technological advancements which have been made over the last year that in some cases have made the practice of law more efficient.  I have always tried to stay ahead of the curve on the use of technology in my law practice and specifically in the courtroom.  I remember the headaches I experienced when I first started using PowerPoint, and I found myself concerned about how to effectively use PowerPoint in my practice.  I ended up taking a local community education class to educate myself on how to create and use PowerPoint presentations, and now I cannot imagine a scenario where I would not use PowerPoint during some phase of the trial proceedings.  My point being that we should not be afraid to take advantage of the technological resources which are available, so long as we are willing to put in the time and effort to understand how best to utilize those resources.

I hope that we are back too normal soon because I miss being in the courtroom and socializing with my friends and colleagues at the courthouse.  I miss making my argument in front of the judge, and not having to decide whether to view the Zoom proceeding in speaker or gallery mode.  But when we finally start to get back to normal, I do think it will look different and that is not necessarily a bad thing.  Embracing change can be difficult, but as criminal defense lawyers it offers us another opportunity to become better advocates.  The technological advancements we have seen over the last 10 months is another way for us to provide better representation for our clients and work more efficiently.  Normal in the future should involve all of us becoming more adept at these technological changes and striving to educate and train ourselves on how to best take advantage of them. 

At some point in the future, I hope to see all of us gather for a seminar and telling war stories.  Until then, be safe and stay TCDLA strong.

Shout Outs

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Congratulations to John. F Shrode on his appointment to the 358th Judicial District Court in Ector County by Gov. Greg Abbott!

Congratulations to Susan Kelly for her appointment to the 54th State District Court in McClennan County by Gov. Greg Abbott!

Congratulations  to Keith Hampton, Marjorie Bachman, and investigator Caitlin Meredith, all of whom contributed to the exoneration of an individual falsely accused and convicted of misdemeanor assault. Accused of shooting a school monitor in a parking lot with a BB gun, the actual assailant admitted his guilt and the eyewitness recanted his identification of the defendant. The defense wishes also to give kudos to the Travis County Attorney’s Office, as well as Corby Holcomb and Judge John Lipscombe. Congratulations!

Congratulations to Gerald Goldstein and Cynthia Orr, who saved Geronimo Gutierrez from the death penalty. Gerald and Cynthia received notice from the Court of Criminal Appeals that Geronimo’s death sentence had been overturned. The defense wishes to give thanks to David Weiss and the Center for Death Penalty Litigation. Excellent work!

Congratulations to all the law firms associated with defending Arkema, Inc., against environmental crime charges during Hurricane Harvey in 2017. The trial began in February 2020, went on a six-month break due to the pandemic, and resumed in October. Now the State has officially dismissed one charge against Arkema and three executives, and the judge has granted a directed verdict on the remaining charges. The four defendants were represented at trial by Rusty Hardin (Rusty Hardin & Associates), Letitia Quinones (Quinones and Associates), Derek Hollingsworth (Drumheller, Hollingsworth, & Monthy), Dan Cogdell (Cogdell Law Firm), Cordt Akers (The Akers Firm, PLLC), Paul Nugent and Heather Peterson (Nugent & Peterson), and Tim Johnson and Nick Dickerson (Locke Lord LLP).

Congratulations to past TCDLA President Betty Blackwell, who received the Distinguished Lawyer Award from the Austin Bar Association on January 28. The award recognizes the dedication and hard work of attorneys who have practiced for 30 years or more and have significantly contributed to the legal profession and the greater community. You deserve it, Betty!

Congratulations to Mark Thiessen and Nicole DeBorde Hochglaube of the Strike Force, who were instrumental in getting a continuance for one of Paul Looney’s cases. Looney feared contempt of court due to his expert witness being unavailable and his co-counsel being asthmatic and not participating in the trial until a COVID-190 vaccine was available. Thanks to the Strike Force, Paul’s case was continued until April 2021. Excellent work!

Congratulations to Alyse Ferguson for her appointment as a commissioner to the Texas Judicial Commission on Mental Health!