The Probable Cause Fairy: AKA An Officer’s “Training & Experience”

October 27, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It was very early on in my experience with criminal law when I first learned the power of an officer’s “training and experience.”

Much of our legal system is built to prevent profiling of any kind.  Some of those safeguards include both statutes and case law which prevent officers from arresting or even just hassling people based on “hunches.”  Courts have long recognized where there is a hunch, there is a good chance there is profiling.

Courts insist probable cause must be based on what is called articulable fact and then making reasonable deductions from those facts which make it probable a crime is in progress or just occurred.

An example of articulable fact would be “Defendant swerved into the next lane of traffic without signaling.”  The statement is concrete and establishes an objective fact, i.e., the car moved from one lane to the next.  A reasonable deduction would be there is something wrong with the driver.  An officer can and should investigate more.

But the topic is still pretty mushy.

Here’s an example of something which probably isn’t articulable fact: “Defendant took several steps away from his car after I asked him to exit the vehicle.”  This doesn’t really tell us anything, does it?  Can we deduce this person has done something wrong or is trying to get away with something?  It’s hard, huh?

How Police and Prosecutors Convert Hunches into Articulable Facts

They do it through using the magical phrase referring to an officer’s “training and experience.”

So lets change the above example… “Defendant took several steps away from his car after he exited the vehicle.  In my training and experience, people in possession of drugs will often separate themselves from the contraband.”

Really?  Which class was that in the police academy?  How many times, officer, has a defendant taken several steps away from a car because they had drugs… and would you mind trying to remember those cases…. because this sounds like you just made it up?

See how it works?  By inserting “training and experience” into the sentence, SHAZAM — what was once just a hunch is now articulable fact.

In defense of police and prosecutors — I don’t think they really see what they are doing is trying to manipulate the standards.  They may honestly believe police get a ‘hound dog’ sense after being on the streets for their careers…. and maybe they do.  But the bottom line is blurs the line between “articulable fact” and a hunch.  Unfortunately, courts often go along with the fiction.

The Defense Lawyer’s Struggle

Our constant struggle is trying to root out exaggeration and, for lack of a better word, fudge from prosecutors and police which helps them attain probable cause or convince a jury to convict.

Any time I hear that phrase in the courtroom it sets off my spidey sense and it is time to fasten the seat-belts.  But that is just my training and experience!

*Jeremy Rosenthal is Board Certified in Criminal Law in Texas.  Nothing in this article should be considered as legal advice.  For legal advice about any situation contact an attorney directly.




A Small Habit Which Contributes to Convicting the Innocent

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Police agencies have public relations personnel.  Their job is to issue press releases.  Normally the press releases answer relevant questions the public has demand for.

We all want to know about bad crimes which affect our safety or our community.  We need to know if a killer is on the loose or if an elected official is a crook.

But police agencies and their PR people are human.  They are trying to paint the agency, their investigative abilities and their protection of the public in the best light possible.

Look at the DUMB Criminals!

I’m not sure why, but sometimes you get press releases which result in articles like this.  Two people were caught with methamphetamine on a routine traffic stop and one claimed he was wearing pants that weren’t his.  Hardy har har.

I’m assuming this was from a press release.  I don’t know how else a beat reporter would get such specific details from a crime blotter.  Normally this degree of detail would require access to a police report, PR person or press conference.  I don’t blame the reporter for running with it.  They’re just doing their job.

This is what I call a “look at the dumb criminals” release.  I’m not going to lie.  The defense this guy used is amusing.  For about 30 seconds.

Blake Long and his girlfriend aren’t city council members, aren’t celebrities, and aren’t law enforcement officers.  They’re the punchlines and the foil of today’s joke.

What I See in the Article

What I see is two things:  First is a mother and father somewhere with a broken home and with broken hearts because of their adult child’s self-inflicted disease… and second I see readers (jurors) who are being taught to presume anyone sitting at Defendant’s table guilty and not innocent.

The Same System of Justice

The same system of justice is responsible for apprehension and conviction of Blake Long and Michael Morton — wrongly convicted of murder and released after decades of confinement.  Sometimes we need to remind ourselves of this fact.

We like to pretend these two arrests happened in different worlds, on different planets, in different justice systems.  But they didn’t.  They happened in the same one.

So how are they connected?

They display polar opposite concepts in the criminal justice system.  Between the Long arrest and the Morton arrest are tens of thousands of other arrests where guilt and innocence are more blurred.

When we win cases, we don’t typically make a big deal about it in the criminal defense world.  Our clients want anonymity.  They want the thing over.

Do yourself a favor next time you see or hear a “look at the dumb criminals” story and look deeper.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation contact an attorney directly.



Do Police Lie in Police Reports?

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Yes, no and maybe so.

Each police report is its own snowflake.  No two are exactly the same (unless the officer does a bad job with a cut & paste).

When I have my clients look at police reports I typically caution them they will not like what they’re about to see.  This is because many offense reports can be heavily spun to support the officer’s conclusion and read like scathing propaganda when they are the subject of the story.  Police include facts which support their decision to arrest and facts and theories which don’t support their own see the editing room floor.

Police don’t write reports to be malicious but they probably feel that way to us when we read them.  They are simply justifying their decision to arrest.

We also have to understand rarely would a single arrest be important enough for an officer to stake his or her career on.  If they are caught being dishonest — most good agencies won’t have anything to do with them.  They really are trying to do their best.  They just see the world — and the arrest differently.

Fortunately a police report is of limited importance.

Rarely do I come across something in a report which is just an unmitigated whopper.  I have to keep several things in mind when I’m reviewing a police report.

  • My client and I have a different version of events.  This doesn’t make the officer a liar.  He or she just saw the events a different way.
  • It is normal for a police officer to omit facts which don’t support their conclusion.
  • There is a difference between lies and exaggerations.

Exaggeration in Police Reports and the “Halo Effect”

A “Halo Effect” is a cognitive bias about someone or something which causes a person to paint an over-all picture about that thing a certain way.  For instance when an employer does a job review for an employee they like – they might give the employee better marks for individual tasks than they otherwise deserve.  The employee’s “halo” blinds our view of other not-so-perfect traits.

But we’re focused here on the reverse.  The officer’s negative impression of the arrestee paints facts and traits which are negative, not positive.  So it is not uncommon to see on offense report where everything negative fact about a defendant down to dirty fingernails is listed by the officer.  We see a “reverse” halo effect in a police report.

How to Use Police Lies to Your Advantage In A Criminal Case

Today we have more and more use of body-cams, in car videos, and even citizens filming police with their own cell phones.  When the police lie, exaggerate, or omit facts from their police report which don’t support their conclusion — then often time they are caught because the video shows otherwise.

In cases where there is no video, the challenge is different.  A skilled cross-examination can show how surrounding circumstances and logic make their conclusion not so.

The Bottom Line:

Rarely will we ever completely agree with the police officer’s account.  But we have to remember his or her account is only so important.  In showing the jury the truth, we do not have to defeat the officer — we have to show the officer was mistaken/ biased/ exaggerating/ inconsistent or whatever human trait lead him to an imperfect conclusion.  This takes skill.

*Jeremy Rosenthal is licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Can I Get Off of Probation Early in Texas?

October 3, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Can I Get Off Probation (Community Supervision) Early?

Yes, except for DWI cases.

What is the Soonest I Can Get Off of Probation?

You are allowed to get off of probation 1/3 of your time in for regular community supervision and the judge can terminate deferred adjudication community supervision at any time.

As a practical consideration probably no judge will allow you to terminate your probation prior to completing all of your requirements such as community service, classes, payment of restitution, etc.

Does My Probation Officer Need to Approve?

Practically speaking — it doesn’t hurt, but legally — no.  The Judge has the final say.  Many probation officers will act as if they are the ‘gatekeeper’ but in reality they are powerless to the extent the judge listens to them (or doesn’t listen to them as the case may be).

Some probation departments have a policy where they make no recommendation whatsoever for fear of recommending someone who ultimately re-offends (thus making them look bad).

How Do I Get Off Probation Early?

You can file a motion for early termination of community supervision or deferred adjudication and request to have a hearing before the judge.  This can be done pro-se or with an attorney.  The benefit of having a lawyer is it can typically be done more efficiently — and if there is any disagreement, the lawyer is in a better position to advocate for your early release.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


Buzzed Driving Actually Isn’t Drunk Driving

October 2, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

There is a new ad campaign from the National Highway and Transportation Safety Administration (“NHTSA”) and the Ad Council trying to curb drunk driving.  The new slogan is “Buzzed Driving is Drunk Driving.”

Its catchy.  Its concise.  I’d say it’s pretty good advertising.

But the problem is its just not true.  At least not in Texas.

Why Buzzed Driving Actually Isn’t Drunk Driving

Texas Penal Code 49.01(2)(A) defines intoxication as;

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

I don’t see the word “buzzed” anywhere in there.  I don’t see the word “drunk” either for that matter.  And this brings me to what I call the ‘war of words.’

“The War of Words” in the Courtroom:

The war of words is a common battleground in most DWI trials.  The legislature gave us the clunky words “not having the normal use.”  The problem is many prosecutors I’ve tried Driving While Intoxicated cases against try to re-define it in a way to make it easier to get their conviction.  They’ll either give favorable or inaccurate examples or they will omit parts of the definition which are inconvenient.

As just one example, I’ve heard prosecutors explain to jurors a glass of wine making someone cheek’s red equals intoxication because that person is “no longer normal.”  But the statute doesn’t say, “no longer normal.”  Not troubling?  Consider by this standard anyone who has a drop of alcohol is a drunk driver when the get behind the wheel.

This means YOU are a drunk driver.  Yes, YOU!

The Definition Also has the Word “Use” 

I remind jurors about the word “use” in conjunction with the term normal.  Someone with a bad knee might not have a normal knee… however when driving a car, they can use it well enough to have the “normal use” of the knee for the purposes of operating a motor vehicle.

Someone might have a headache rending them not ‘physically normal’ for the time their head hurts.  But they can still speak, do math or drive a vehicle with their malady.  So I’d say this person, while not normal, has the ‘normal use’ of mental or physical faculties.

The “Two Beer” Game

There is just something about a formal and dark courtroom with a judge in a robe and everyone wearing suits to get us all to forget reality.  When a uniformed police officer begins using lexicon such as calling cars “vehicles” and calling the person he stopped a “suspect,” then calling a bud light an “alcoholic beverage,” it sets the scene for what I like to call “the two beer game.”  That is when we all act like two beers is excessive and irresponsible for drinking prior to driving.

In reality, 2 beers would only legally intoxicate a leprechaun or a 10-year old — neither of whom I’ve ever seen on trial for DWI.

It is important to get the jury out of the “two beer game” mode.  I like to ask jurors why restaurants like Chili’s, On the Border, or Texas Land & Cattle have bars inside and also parking lots… it is because it is not illegal to have alcohol and drive.  It is my way of getting jurors to “snap out” of the indoctrination.

Buzzed Driving

The Buzzed driving slogan is indoctrination and spin.  Decreasing the number of drunks on the road is high-minded work.  It is important.  From that point the slogan is okay.

The Buzzed Driving slogan only hurts those wrongly accused of DWI because their jurors have been lied to about the law.  In other words, it is only a problem when you or your loved one is on trial.  In which case you’re pretty mad about this lie.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact a lawyer directly.