Current Issue: March 2021

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Features

17 | Be Sure to Pencil Yourself In – By Shana Stein Faulhaber
18 | Home-Rule City Ordinances vs. Texas Penal Code – By Anne Burnham & Stephanie Stevens
21 | Get What You need for the Indigent Non-Citizen Client with an ICE Hold During COVID-19 – By Suzanne Spencer
24 | What is Computer Vision and How Does Law Enforcement Use It? – By Nicolas Hughes
30 | Combating Y-STR DNA Analysis in Sexual Assault Cases – By Angelica Cogliano
32 | Illuminating Pathways to Criminal Defense Practice: An Update from TCDLA’s Law School Committee – By Anne Burnham & Stephanie Stevens
34 | Kids, Schools, Phones, and Consent – By Ambrósio Silva
37 | Working with Diverse Juries – By Rick Flores

Columns

6 | President’s Message
7 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
12 | Federal Corner
16 | From the Front Porch
29 | Shout Outs

Departments

5 | CLE Seminars and Meetings
43 | Significant Decisions Report

Online-Only Articles

Alcohol Testing in the Age of COVID-19 – By Jan Semenoff
Invest in Secure E-Mail Services – By Lex Johnson

President’s Message: Pandemic Jury Trials

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It has been nearly a year since Texas and the nation’s courts began scaling back in-person operations due to the pandemic. It has been well more than a year since the pandemic became a major problem. This is but an example of a shortcoming with large governmental systems: They often react late to a crisis.

As of February 2021, I would be less than candid if I were to tell you that state and federal jury trials are unsafe and pose an unacceptably high risk of viral transmission. But it would be equally misleading to state that trials and other in-person court proceedings are safe. The truth is, no one really knows.

Here is another stubborn truth I’ve discovered during the past year through consultation with administrators, judges, defense lawyers, prosecutors, and even some scientists: Many of the important stakeholders in the criminal justice system have strong opinions about the “best” path forward and there is little we criminal practitioners — the ones on the front lines of the legal system due to frequent contact with inmates, clients, courthouse personnel, and many others — can do to change their minds.

The time has come to paddle our own boat.

If as a TCDLA member you believe it is unsafe to participate in a court proceeding or that your client’s constitutional rights are not adequately protected, this organization has your back. We have a COVID-19 Committee and a Strike Force to help you with legal and strategic assistance when a judge is dragging you and your client into trial against your will. If you believe there is no reason to postpone a court proceeding and your client has demanded a speedy trial, the same TCDLA people will assist you with the full force and intelligence we’ve assembled. You can reach me personally by text or email 24/7 and I will work for you as well.

Many among us believe that in-person court proceedings are unwise and possibly unsafe until vaccinations are widely distributed and the population has achieved herd immunity. That’s a reasonable position to take. As a single parent of a small child, I will not permit a judge to bully me into something I don’t think is safe and I wouldn’t ask any of our members to allow it, either.

It is not as though the criminal defense bar isn’t trying to improve the situation. In December I sent a letter on behalf of TCDLA to Governor Greg Abbott and vaccine administrators. We asked them to prioritize criminal practitioners in the vaccination pipeline. Not jump ahead of frontline healthcare workers, nursing home residents, medically vulnerable people, and the elderly. Just put us into a group of essential workers with vaccination priority. While that may indeed happen, the Governor’s Office has yet to respond.

During a State Bar Task Force Zoom meeting on February 8, 2021, I suggested that trial judges give priority to defendants who affirmatively demand a speedy trial, so we could possibly avoid situations in which attorneys, clients, and even some prosecutors are dragged into trial against their will. Several of the judges in the meeting (including two regional presiding judges) made it clear it was a hard no. For judges who are bent on going to trial during the pandemic, it’s not about incrementally shrinking trial dockets or safeguarding the accused’s constitutional right to a speedy trial. It’s about running their courtrooms however they see fit.

Worth noting, the vast majority of judges I’ve encountered in my small pocket of the universe (mostly Greater Houston) are doing the right thing and waiting until conditions are safer and not pushing cases to trial unless all parties are willing. When you see a judge doing the right thing, be sure to thank him or her. They’re under a lot of pressure, too.

Trials are about to ramp up, whether it’s the right path forward or not. My advice to colleagues is to follow your conscience. No matter which path you choose, TCDLA will make sure you do not have to walk it alone.

Executive Officer’s Perspective: Another Historic Event

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The only thing you sometimes have control over is perspective. You don’t have control over your situation. But you have a choice about how you view it.

-Chris Pine

When I first started to write this article, I was going to write about how we have become so reliant on technology since COVID. Everyone has had to learn new programs, change the way we have always done things. Technology is tricky. By the time you buy the most recent device, program, or update, another is available.

How the tables turned this past week during our Texas arctic blast – another historical event to add to the pandemic and share with younger generations. It was tough to realize we had no power, water, and heat for days—the simple things I had taken for granted. The days just all ran into each other. Checking in with family, staff, and friends, I felt so helpless because there was no definite answer to when things would get back to running efficiently – normal? What is that? When the state offices and schools completely shut down, and over four million have no power, you know it is something very wrong. No light at the end of the tunnel, literally.

As with all tragedies, the takeaway is how I could have better prepared for things in my control. I sat here for a while to think about what I could do differently. I was well equipped with food and toilet paper since the start of COVID, candles, and flashlights if the power went out, lots of blankets. I had backups to charge the cell phone and laptop. Staff who had power were on standby to get us through the four live programs scheduled. One staff’s husband went in their 4 x 4 to make sure we didn’t have another busted pipe at the office. Check, check, and check.

I had people come over who needed food since theirs went bad without refrigeration. When I finally got power, others came to shower, and I left my house open. I checked in with co-workers, family, and friends, and they did with me. After several days without heat and water, I felt like a savage, surviving on libations and Girl Scout cookies. There were no patterns to the blackouts. But I am so blessed for my group of friends and family who reached out. TCDLA is the community we’ve built and the one we need.

Together I could see our TCDLA family reaching out to one another in group texts, direct texts, social media, and listserves. The relationships built through TCDLA are irreplaceable and it humbles my heart to be part of this community.

Now back to my original topic: The TCDLA staff along with the Technology Committee have worked really hard to update the How To section. You may think these are basic, but we had staff learn some new tricks to be more efficient with our daily work. If you have not gone through the sections, the videos are short and right to the point with hands-on examples. Many committee members are also working on pages under the members-only section and are reorganizing the video resource library. The COVID resource page has been updated and reorganized as well with new resources. We are working hard to keep up with technology – if only we had control of the power! Keep checking the members-only section for new additions!

Keep safe and warm!

Editor’s Comment: Tattoos Can Be Removed, But Can a “Gang Member” Label?

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It all started simple enough. A question popped up in my inbox from a probation officer. It wasn’t a question about a particular client of mine – just a question from a good probation officer who, seeing beyond the criminal offense, was trying to help one of his young probationers.

“Do you know anything about the process that a probationer could use to be removed from the gang registry?”

And do you know what? I didn’t know, and I felt bad for not knowing. I could tell him all about other legal mechanisms to help restore a person – early release, expunctions, sealing records, and judicial clemency – but nothing about getting off the gang registry. So, I made it a point to find out.

When in doubt about a question like this, turn to the CCP to see if there’s guidance. The answer to the question above is found in Chapter 67. Before answering the question though, it is necessary to understand a little about the gang database.

As an initial matter, it is important to note that Texas is one of a minority of states that have a gang database. In 2005, the FBI established the National Gang Intelligence Center that integrates gang intelligence from across law enforcement agencies at all levels.

Article 67.051 mandates that the State compile and keep a database for the purpose of investigating or prosecuting the criminal activities of combinations or criminal street gangs. Subsection (d) requires local law enforcement to send to the department such information the agency compiles and maintains under Chapter 67. So, first, the database is required at the State level, and local law enforcement agencies are required to participate in providing information to the database.

Article 67.054 outlines the submission criteria for inclusion in the database:

(b)  Criminal information collected under this chapter relating to a criminal street gang must:

(1)  be relevant to the identification of an organization that is reasonably suspected of involvement in criminal activity; and

(2)  consist of:

(A)  a judgment under any law that includes, as a finding or as an element of a criminal offense, participation in a criminal street gang;

(B)  a self-admission by an individual of criminal street gang membership that is made during a judicial proceeding; or

(C)  except as provided by Subsection (c), any two of the following:

(i)  a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

(ii)  an identification of the individual as a criminal street gang member by a reliable informant or other individual;

(iii)  a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

(iv)  evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

(v)  evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual and described by Subparagraph (iv);

(vi)  evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity;

(vii)  evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

(viii)  evidence of the individual’s use of technology, including the Internet, to recruit new criminal street gang members.

(c)  Evidence described by Subsections (b)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person’s information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C).

So, it is important to recognize and acknowledge that the “gang member” label can be, and likely is, applied without due process and outside the walls of any courthouse. And as becomes obvious from a further read, removing a tattoo is easier than removing a “gang member” label.

The answer to the question of how to remove information from a gang database is contained in Article 67.151 which provides, in relevant part:

(b)  Subject to Subsection (c), information collected under this chapter relating to a criminal street gang must be removed after five years from an intelligence database established under Article 67.051 and the intelligence database maintained by the department under Article 67.052 if:

(1)  the information relates to the investigation or prosecution of criminal activity engaged in by an individual other than a child; and

(2)  the individual who is the subject of the information has not been arrested for criminal activity reported to the department under Chapter 66.

(c)  The five-year period described by Subsection (b) does not include any period during which the individual who is the subject of the information is:

(1)  confined in a correctional facility operated by or under contract with the Texas Department of Criminal Justice;

(2)  committed to a secure correctional facility, as defined by Section 51.02, Family Code, operated by or under contract with the Texas Juvenile Justice Department; or

(3)  confined in a county jail or confined in or committed to a facility operated by a juvenile board in lieu of being confined in a correctional facility described by Subdivision (1) or committed to a secure correctional facility described by Subdivision (2).

Interestingly, the person named in the database does not have to be informed they are named in the database. However, the CCP outlines procedures for determining if a law enforcement agency has collected or is maintaining gang information, requesting a review of criminal information that may have been incorrectly included in a gang database, and also for judicial review of any such determination made. See Art. 67.201- 67.203.

The Texas Department of Criminal Justice calls gangs “security threat groups.” TDCJ recognizes 12 such security threat groups: Aryan Brotherhood of Texas, Aryan Circle, Barrio Azteca, Bloods, Crips, Hermanos De Pistoleros Latinos, Mexican Mafia, Partido Revolucionario Mexicanos, Raza Unida, Texas Chicano Brotherhood, Texas Mafia, and Texas Syndicate. TDCJ has created a process for inmates to renounce their membership in one of these security threat groups (aka “gangs”). And it is a process – a 9-month process with several phases – called the Gang Renouncement and Disassociation (GRAD) Process. Of course, there are myriad considerations, not address herein, that must be evaluated before an inmate embarks on the GRAD Process. To say it is dangerous is an understatement. And the fact that an inmate has completed the GRAD Process doesn’t mean the “security threat group” notation will be forever removed. Rather, it means that the new notation will be “ex-security threat group member.” See www.tdcj.texas/gov/divisions/cid/stgmo_GRAD.html (last visited 2/9/21).

I’m thankful I received that email question. Chapter 67 is worth reading. And it’s worth a visit to the TDCJ website to check out the security threat groups and GRAD Process too. The bottom line is that it seems much easier to remove or cover up a tattoo – even a gang tattoo – than to remove the same label law enforcement has applied.

P.S. – We all weathered the recent winter blast together but experienced it in very different ways. Many of us may have experienced only minor inconveniences for a week while some of us were really hit hard and are still recovering from the damage caused. Please know that your TCDLA family is here for you. If there is anything we can do to help you, please reach out to any of us. Let’s take care of each other.

Ethics and the Law: Bad Reviews

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QUESTIONS PRESENTED

May a Texas lawyer respond publicly to a former client’s adverse comments on the internet? If so, what information may the lawyer disclose?  

STATEMENT OF FACTS

A former client posted negative comments about a Texas lawyer on an internet review site. The lawyer believes that the client’s comments are false. The lawyer is considering posting a public response that reveals only enough information to rebut the allegedly false statements.   

DISCUSSION

The internet allows consumers to publish instant reviews and comments about goods or services. Once posted, consumer reviews are usually searchable, easily accessible to other potential consumers, and effectively permanent. With the internet becoming an increasingly common source of referrals for legal services, consumer reviews on various sites have assumed a greater importance for attorneys in recent years.

Vendors of commercial goods or services are relatively free to respond to negative reviews as they see fit. But when a former client posts a negative review about a lawyer, the lawyer’s duty of confidentiality limits the information the lawyer may reveal in a public response.  

In general, Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct defines the scope and extent of a Texas lawyer’s duty of confidentiality. Rule 1.05(a) broadly defines “confidential information” to include not only information protected by the lawyer-client privilege but also “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”  

A lawyer may not publicly reveal the confidential information of a former client unless expressly permitted by an exception stated in Rule 1.05. Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client or acquired by the lawyer during the course of or by reason of the representation of the client. This is true even though the information may have become generally known. Compare Rule 1.05(b)(3) (allowing lawyer to use confidential information to the disadvantage of a former client after the information has become generally known) with Rule 1.05(b)(1) (generally prohibiting revelation of confidential information absent an applicable exception).

No exception in Rule 1.05 allows a lawyer to reveal information in a public forum in response to a former client’s negative review. The only exceptions potentially applicable to the facts presented in this Article appear in Rule 1.05(c) and (d):

(c) A lawyer may reveal confidential information:

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client. 

(d) A lawyer also may reveal unprivileged client information:

(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;

(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.”

It is the opinion of the Committee that each of the exceptions stated above applies only in connection with formal actions, proceedings, or charges. The exceptions to Rule 1.05 cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet. This approach is consistent with the guidance issued by the ethics authorities in other jurisdictions.

See, e.g., Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinion No. 525 (Feb. 2013); Bar Association of San Francisco Ethics Opinion 2014-1 (Jan. 2014); New York State Bar Association Ethics Opinion 1032 (Oct. 2014); and Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014).

Accordingly, a lawyer may not reveal confidential information, as that term is defined in Rule 1.05, merely to respond to a former client’s negative review on the internet. A lawyer may, however, post a response to a former client’s negative review so long as the response is proportional and restrained and does not reveal confidential information or violate any other provision of the Texas Disciplinary Rules. For example, it would not violate the Texas Disciplinary Rules to post the following response, suggested in Pennsylvania Bar Association’s Formal Ethics Opinion 2014-200 (2014):

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum.  Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”

Nothing in this article is intended to suggest that a lawyer may not seek judicial relief against a former client who commits defamation or other actionable misconduct through an internet publication.  

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a Texas lawyer may not publish a response to a former client’s negative review on the internet if the response reveals any confidential information, i.e., information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client or acquired by the lawyer during the course of or by reason of the representation of the client. The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.

INQUIRY TO TCDLA ETHICS COMMITTEE FROM AGGRIEVED LAWYER

Attached is the review my client left.  My question is whether I can disclose in my response the fact that her case was dismissed and expunged.

I was hoping to receive the same level guidance, representation, and communication from [attorney X] as his previous reviews have indicated. It is very disappointing to be writing this review. I am confused as to why I had a completely lackluster and different experience. Any time I had a question for him I would receive a curt clipped response as if I was bothering him. I always had the feeling I had made a bad decision in having him represent me because of this. To his credit he was very responsive in texting back and performed the basic functions of his role, which for my issue were not very complicated. He did not spend $2500 worth of time on me and if so, I’ve yet to see his hours. Unfortunately, he did not communicate on issues that he knew about at the time would still impact me. I received very little communication on what to look out for and when asked about it he shared that because he gave me a discount, I should have no problem paying to have an error removed from my background now. Time is one thing that cannot be recovered. He was more focused on money though. I received the bare minimum from him. Overall, I feel he was apathetic and unhelpful in his representation of me. I hope no other client is treated this way.

RESPONSE OF COMMITTEE MEMBER JOE CONNORS

Please get back to us later after your ex-client then files another on-line response with many more details to further denigrate you in so many new ways.

Like the other responses from the Ethics Committee attorneys who took time to share their experience and knowledge with you, I also suggest YOUR SILENCE would be best. It will stop this matter now rather than its continuing with another bad post by your ex-client.

You asked for our advice but refuse to follow it so be forewarned: “This one is not over with posting your fine words.”

I have been there where you currently are. My silence stopped the need for my denigrating ex-client and non-client to get in each last evil word on-line about how bad I was. You ought to just be silent, I request. 

REPLY OF INQUIRING ATTORNEY

Aside from ethics rules, I believe it is a misdemeanor to divulge an expunction.  So, I do not think it would be wise to include in a response that I got a criminal case dismissed and expunged. I will just use the one suggested by Ethic opinion 662:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum.  Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

RESPONSE OF COMMITTEE MEMBER BETTY BLACKWELL

I have just recently reviewed the State Bar rules about this, and they are extremely strict.  About the only answer you can give is that “professional rules do not allow me to respond as I would like.”

Anything you post on the website can be seen as a violation of confidentiality.  The only other thing they recommended was reaching out directly to the client and asking if you could talk to her about the review.  But it is really not recommended and could be an ethical violation to respond on the site where the review is posted,

I’m so sorry.  We have all had them.  It is frustrating, but better to ignore.

I have been told the best thing to do is get better reviews posted.  The bar does say that it is okay to request clients to post good reviews, though it is not okay to pay for good reviews.

Federal Corner: If You Have a Cell Phone Search Issue, Assume the Governor is Aware of Morton

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On February 2, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that an officer’s affidavit provided probable cause to search the contacts, call logs, and text messages on the defendant’s cell phone, but not to search for photographs on the cell phone; and, also, that the good faith exception did not apply to allow the admission of the photographs that were found on the cell phone.  United States v. Morton.1

A week or so later, I asked an AUSA whether he had read Morton.  He replied that he and the other lawyers in the office – and one of the magistrate judges in the division – had read it and were concerned about its implications.  If you have a case that involves the search of a cell phone, Morton is a “must read.”  It is another Leon2 case, but one in which the defendant prevailed.

Judge Jolly’s opinion reads, in part, as follows:

An Overview of the Opinion

In this appeal, we are asked to determine whether the good faith exception to the Fourth Amendment’s exclusionary rule allows officers to search the photographs on a defendant’s cellphones for evidence of drug possession, when the affidavits supporting the search warrants were based only on evidence of personal drug possession and an officer’s generalized allegations about the behavior of drug traffickers—not drug users. We hold that the officers’ affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones; and further, we hold that the good faith exception does not apply because the officers’ reliance on the defective warrants was objectively unreasonable. And while respecting the ‘great deference’ that the presiding judge is owed, we further hold that he did not have a substantial basis for his probable cause determination with regard to the photographs. We thus conclude that the digital images found on Morton’s cellphones are inadmissible, and his conviction is therefore VACATED. Accordingly, the case is REMANDED for further proceedings not inconsistent with this opinion.

The Facts in the Case

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe. When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.  After arresting Morton for drug possession, one of the officers, Texas Department of Public Safety (DPS) Trooper Burt Blue, applied for warrants to search Morton’s three cellphones that were found in the van. Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a ‘DRE-Drug Recognition Expert’—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

The Affidavits and the Warrants

The affidavits and warrants were identical to each other except for naming different cellphones to be searched. The paragraph of the affidavits describing the objects of the search reads:

It is the belief of affiant that suspected party was in possession of and is concealing in the cellphones … evidence of the offense of Possession of ecstasy, possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.3 (emphasis in the opinion)

In full, the sole paragraph in each affidavit purporting to provide probable cause to search Morton’s photographs reads:

Affiant knows through training and experience that photographic images taken on cellular telephones can be stored in the telephones sic memory and retained for future viewing. Affiant also knows through training and experience that criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs. Affiant believes that photograph images stored in the cellular telephone may identify other co-conspirators and show images of illicit drugs and currency derived from the sale of illicit drugs.4 (emphasis in the opinion)

The Search and the Indictment That Followed

Relying on these affidavits, a judge issued warrants to search Morton’s phones. While searching the phones’ photographs, Trooper Blue and another officer came across sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

The Motion to Suppress; the Guilty Plea; and, the Appeal

In pretrial proceedings, Morton moved to suppress this pornographic evidence. He argued that the affidavits in support of the first set of warrants failed to establish probable cause to search for his additional criminal drug activity. The government responded by stating that the warrants were supported by probable cause and, if not, then the good faith exception to the exclusionary rule—first announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)—should apply. The district court ruled in favor of the government, and Morton later pled guilty to the child pornography charge while reserving his right to appeal the district court’s suppression decision. He was sentenced to nine years in prison, and this appeal of the suppression ruling followed.

Appellate Review of the Denial of a Motion to Suppress

… In reviewing a district court’s denial of a suppression motion for evidence obtained pursuant to a search warrant, our precedent usually applies a two-step test. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010). First, we decide whether the good faith exception should apply. Id. If the good faith exception applies, then no further inquiry is required. Id. If the good faith exception does not apply, we proceed to a second step of analysis, in which we review whether the issuing judge had a substantial basis for determining that probable cause existed. Id.

The Good Faith Exception

The good faith exception to the suppression of evidence obtained in violation of the Fourth Amendment arises when an officer’s reliance on a defective search warrant is ‘objectively reasonable.’ United States v. Sibley, 448 F.3d 754, 757 (5th Cir. 2006). In such a case, the evidence obtained from the search ‘will not be excluded.’ Id. This court has decided that the good faith exception applies to most searches undertaken pursuant to a warrant unless one of the four situations enumerated in Leon removes the warrant from the exception’s protection. Leon, 468 U.S. at 923, 104 S.Ct. 3405; see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Only one of these ‘exceptions to the good faith exception’ is relevant here: Morton alleges that the warrant ‘so lacked indicia of probable cause’ that the officers’ reliance on it was ‘entirely unreasonable.’ Leon, 468 U.S. at 923, 104 S.Ct. 3405.  (emphasis added.)

 Indicia of Probable Cause

To determine if there were indicia of probable cause, the reviewing court will usually be required to look at the affidavit supporting the warrant, but, even so, all of the circumstances surrounding the warrant’s issuance may be considered. United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003); United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). Affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that criminal evidence will be found in the place to be searched for there to be probable cause. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (cleaned up).

Trooper Blue’s Affidavits

Here, as suggested by this court’s precedent, we turn to Trooper Blue’s affidavits supporting the search warrants. The affidavits seek approval to search Morton’s contacts, call logs, text messages, and photographs for evidence of his drug possession crimes. As the government properly conceded at oral argument, separate probable cause is required to search each of the categories of information found on the cellphones. Although ‘treating a cell phone as a container … is a bit strained,’ the Supreme Court has explained that cellphones do ‘collect  in one place many distinct types of information.’ Riley v. California, 573 U.S. 373, 394, 397, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). And the Court’s opinion in Riley went to great lengths to explain the range of possible types of information contained on cellphones. (emphasis added.)

Riley made clear that these distinct types of information, often stored in different components of the phone, should be analyzed separately. This requirement is imposed because ‘a cell phone’s capacity allows even just one type of information to convey far more than previously possible.’ … Absent unusual circumstances, probable cause is required to search each category of content. Id. at 395, 134 S.Ct. 2473 (stating that ‘certain types of data’ on cellphones are ‘qualitatively different’ from other types); id. at 400, 134 S.Ct. 2473 (analyzing data from a phone’s call log feature separately)… (emphasis added.)

This distinction dovetails with the Fourth Amendment’s imperative that the ‘place to be searched’ be ‘particularly described.’ U.S. CONST. amend. IV.; cf., e.g., United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992)…

Here, this observation means that the facts as alleged in Trooper Blue’s affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that evidence relevant to Morton’s crime—that is, simple drug possession—will be found in each place to be searched: his contacts, his call logs, his text messages, and his photographs. There must be a specific factual basis in the affidavit that connects each cellphone feature to be searched to the drug possession crimes with which Morton was initially charged.  (emphasis added.)

The affidavits successfully establish probable cause to search Morton’s contacts, call logs, and text messages for evidence of drug possession. In attesting that probable cause exists, officers may rely on their experience, training, and all the facts available to them.

But the affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a ‘substantial chance’ that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession. As we have said, officers are permitted to rely on training and experience when attesting that probable cause exists, but they must not turn a blind eye to details that do not support probable cause for the particular crime. Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)…  (emphasis in the opinion)

Here, Trooper Blue supplied two facts to provide probable cause to search the images on Morton’s phones. First, Morton was found with less than two ounces of marijuana, a pipe, and sixteen pills that Morton stated were ecstasy. Second, based on Trooper Blue’s training and experience, ‘criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.’ This background led Trooper Blue to assert thatphotograph images stored in the cellular telephone may identify other co-conspirators and show images of illicit drugs and currency derived from the sale of illicit drugs.’ These photographs would, in turn, be evidence of ‘other criminal activity … in furtherance of narcotics trafficking’ and Morton’s drug possession crimes. The search warrant is thus expanded to seek information of an alleged narcotics trafficking conspiracy based solely on Morton’s arrest for, and evidence of, simple drug possession.  (emphasis added.)

The Syllogism Fails to Provide Adequate Grounds For the Extensive Search

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

To begin, the quantity of drugs Morton possessed can best be described as personal-use: a single small bag of marijuana and a few ecstasy pills. Further, Morton did not have scales, weapons, or individual plastic bags that are usually associated with those who sell drugs. It is also significant that the officers arrested Morton for possession of marijuana and ecstasy but not distribution of these drugs. Compare TEX. HEALTH & SAFETY CODE §§ 481.121, 481.116 with id. §§ 481.120, 481.113.  In sum, indications of drug trafficking were lacking: no significant amount of drugs; paraphernalia for personal use, not sale; and no large amounts of cash. Or precisely: there was no evidence supporting drug trafficking.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a ‘fair probability’ or a ‘substantial chance’ that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.  (emphasis added.)

The Good Faith Exception Does Not Save the Day

Having demonstrated that the warrants to search the photographs stored on Morton’s cellphones were not supported by probable cause, we next turn to the question of whether the evidence produced by the search may nevertheless be admitted based upon the good faith exception. To resolve this question, we ask whether the officers’ good faith reliance on these defective warrants was objectively reasonable. … In reviewing whether an officer’s reliance is reasonable under the good faith exception, we ask ‘whether a reasonably well-trained officer would have known that the search was illegal’ despite the magistrate’s approval. United States v. Gant, 759 F.2d 484, 487–88 (5th Cir. 1985).

The facts here lead to the sensible conclusion that Morton was a consumer of drugs; the facts do not lead to a sensible conclusion that Morton was a drug dealer. Under these facts, reasonably well-trained officers would have been aware that searching the digital images on Morton’s phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause, despite the magistrate’s approval. Consequently, the search here does not receive the protection of the good faith exception to the exclusionary rule.

The Magistrate Did Not Have a Substantial Basis for Determining That Probable Cause to Search the Cell Phone Existed

However, the good faith exception, applicable to the officers, does not end our analysis. As we have said, if the good faith exception does not save the search, we move to a second step: whether the magistrate who issued the warrant had a ‘substantial basis’ for determining that probable cause to search the cellphones existed. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010). While the good faith analysis focuses on what an objectively reasonable police officer would have known to be permissible, this second step focuses on the magistrate’s decision. The magistrate is permitted to draw reasonable inferences from the material he receives, and his determination of probable cause is entitled to ‘great deference’ by the reviewing court in all ‘doubtful or marginal cases.’ United States v. May, 819 F.2d 531, 535 (5th Cir. 1987); see 2 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 3.1(c) & n.78 (4th ed. 2019).

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ ‘drawers’ or ‘file cabinets,’ the photographs ‘file cabinet’ could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible. (emphasis added.)

What the Court Has Said

Today, we have held that a reasonably well-trained officer would have known that probable cause was lacking to search the photographs stored on the defendant’s cellphones for evidence related to drug possession, which was the only crime supporting a search. Moreover, we have held that any additional assertions in the affidavits were too minimal and generalized to provide probable cause for the magistrate to authorize the search of the photographs. Because the officers’ search of the stored photographs pursuant to the first warrants was impermissible, obviously the use of that information—which was the evidence asserted to secure the second set of warrants—tainted the evidence obtained as a result of that second search, making it the unconstitutional ‘fruit of the poisonous tree.’ See, e.g., United States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007). Therefore, the evidence obtained as a result of the second set of warrants is inadmissible.  (emphasis added.)

My Thoughts

  • Any analysis of a cell phone search issue should begin with a review of Riley and, now, Morton
  • Any cell phone search can include looking at contacts, cell logs, text messages and photographs.
  • The affidavit prepared by the individual seeking a search warrant for a cell phone, absent unusual circumstances, must show probable cause for searching for each of these distinct types of information.
  • As Judge Jolly noted, “…we ask whether the officer’s good faith reliance on these defective warrants was objectively reasonable… In reviewing whether an officer’s reliance is reasonable under the good faith exception, we ask ‘whether a reasonably well-trained officer would have known that the search was illegal’ despite the magistrate’s approval.”  As criminal defense lawyers, we should like this question.  The Government does not.

From the Front Porch: Mending Fences

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If you practice in a small town, sooner or later, you’re going to tear your britches with the prosecutor or the judge. Sometimes, you tear your britches with both. Me? I’ll take the 5th (as always). In a big city, this is not so much of a problem. Prosecutors come and go, and your cases are probably so spread out that you may not see that pesky judge for awhile. In the big city, things can cool off organically. The conveyor belt of problems will often quickly remove yesterday’s problem with today’s, then tomorrow’s. And as a learned attorney in Nacogdoches once said, “Time is a soothing balm.”

However, in a small town, time’s soothing balm may not always be so soothing. You may be dealing with that judge or prosecutor for the next 20 years or more. Literally! In my experience, rural practitioners seem to have a long memory. So, what do you do when you get crossways with the powers that be? Telling them to just go to hell doesn’t work in the long run. Unfortunately, and inextricably, they hold the keys to what ultimately happens to your clients. In my experience, there are three things that you can do to mend fences when things go south.

If you are wrong, admit it. No one likes to admit when they have made a mistake. But, hey, we’re all human. You may perceive that admitting when you made an error bruises your public perception. On the contrary, it enhances it. The worst thing you can do is wrongfully blame someone else, make excuses, etc. This makes you look far weaker in the long run. If you make a mistake, own up to it.

If they are wrong, don’t rub it in. Just as the rationale for #1, we are all human. If they don’t realize their mistake, you can point it out gracefully without making them lose face. If they own up to it, don’t rub it in. As stated before, you may be dealing with these people for a long, long time. Be graceful and dignified about their mistakes, just as you should be with yours.

Whether it is 1 or 2, don’t let your emotions dictate how you respond. This is probably the toughest advice to follow. Whether it’s extreme anger or fear, it is best not to show this to the other side. When I first started practicing, I often needed to leave the courthouse and drive around the block to cool off. One time, I almost hit my colleague driving around doing the same thing (I’m not kidding). With today’s zoom hearings, it’s even easier. Just mute your app, turn off the video, and let loose. Compose yourself and boogie on.

We are all going to be in this position sooner or later. Avoid the temptation to act like a jackass. Because our jobs inherently involve conflict, at some point in time, some fences will need mending. But our actions determine whether we need a small repair or if we need to fix the whole damn fence! If you practice in a small town, you probably are doing so to avoid the big-city headaches. I’ll take our unique rural problems over the big city headaches any day! I hope this helps you a little when you suit up and take on the state – even if only from the waist up in our current age of Zoom. Take care, good luck, and have fun!

Shout Outs

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Congratulations to Amber Vazquez, who freed her client, James, after 17 months in jail awaiting sentencing. James is a felon who was arrested while possessing drugs and a gun. He was facing five to 10 years in prison. Judge Albright granted James probation on Feb. 3. Congratulations, Amber!

Congratulations to Stephanie Gonzales and Jeff Daniel Clark, who appealed and won on behalf of their client in Wheeler v. State. Stephanie’s cross-examination of the police officer at the MTS hearing has been called “brilliant” and “tremendous.” Awesome work!

Congratulations to the A Team – that is, TCDLA’s Ethics Committee for their continued hard work in aiding lawyers caught in ethical quandaries. The Ethics Committee includes Robert Pelton, Joe Connors, Keith Hampton, John Wright, Betty Blackwell, Laura Popps, Jack Zimmermann, Chuck Lanehart, Joe Pelton, Robyn Harlin, Stephen Doggett, Audrie Lawton, and Greg Velasquez.

Current Issue: January/February 2021

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DOWNLOAD PDF VERSION

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.

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