Video of a Textbook Illegal Search

April 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.

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How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.

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Posted by Jeremy Rosenthal, Esq.

New DWI Law: Above a 0.15 is now a Class A Misdemeanor

November 13, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Drunk driving laws are a one-way road.  They’re getting tougher and unless and until politicians begin campaigning on being easier on this sort of thing, you can expect the laws to keep getting even tougher than they are now.

A law passed this past legislative term and now in effect is that it is now a Class A misdemeanor if your blood alcohol result is above a 0.15 at the time the test is taken (not when you were behind the wheel).

The law is yet another example of how the state punishes you for cooperating by taking the breath test.

Not only that, but what they’re also doing is making steeper punishment more arbitrary.  Think of it this way… if person A has been drinking steadily all night and gets behind the wheel at, let’s say, a 0.18 blood/ alcohol concentration — it’s possible he’s spared the enhanced punishment because by the time he takes the breath test 2 hours later, his blood alcohol level may be at a 0.14 and he won’t be punished under this new enhancement.  Now take person B who took 2 or 3 shots before getting in the car to drive 2 miles home… felt fine… but was pulled over.  Two hours later, person B’s blood may spike at o.15.  Person B’s conduct is punished more harshly than person A, but clearly the culpability is reversed.

Regardless of why the law may be unfair, here’s the net result — it will be more stigmatizing.  Legally the punishment increases from a class b to a class a misdemeanor, so there is always the legal possibility that someone may get punished worse (up to a year in jail instead of 180 days and up to a $4,000 fine instead of $2,000).  In reality, people typically don’t see anywhere near the max jail time or fine on a DWI regardless of the breath or blood test scores.

The arrest will simply look worse on someone’s record and gives people facing these charges even more incentive to fight them.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice on any matter you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

How Prosecutors Turn Evidence of Innocence into Evidence of Guilt

October 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Prosecuting lawyers (like any lawyers) are in the business of selling their case to the jury.  To do that, they try to combine the facts of their case with a certain degree of spin or rhetoric to persuade a jury that they have proven their case.

Some of the prosecuting lawyer’s rhetoric, though, is solely designed at spinning evidence of innocence into evidence of guilt — or at the very least making evidence of innocence a ‘jump ball’ as to whether it proves guilt or innocence.

In defense of prosecuting lawyers — I don’t think they fully appreciate exactly what they’re doing.  First of all prosecutors are like any other professional group.  They train, discuss tactics, and share ideas and techniques they find useful.  Unfortunately some also make the thinking error that innocent people don’t get arrested or prosecuted.  When you combine those factors, you get arguments like the ones I’m describing in today’s blog.

Here are some common arguments I hear:

In drunk driving cases:

“Ladies and gentlemen… this defendant doesn’t look bad doing the field sobriety tests, but he’s the type of drunk we need to fear the most because he’s the type of drunk that can find his keys…”

“Drunk drivers can look like anyone.  They don’t look like normal criminals…”

“This drunk driver doesn’t seem too bad on the video because alcoholics know how to mask symptoms of intoxication…”

In Crimes Against People (such as robbery, assault or sexual assault)

“Of course we don’t have much evidence… The defendant is very skilled at choosing the time and place so there won’t be evidence or witnesses…”

“It’s very common for victims to retract their accusations.  They’ve been psychologically traumatized by the defendant…”

“What makes this defendant so dangerous is that he looks like a normal, everyday person…”

Here’s Why I Find these Arguments Distressing:

All of these arguments can be summed up this way “if we have evidence against you, then you’re guilty… and if we don’t have evidence against you… you’re still guilty.”

You can make these arguments about ANYONE sitting in the defendant’s chair in any case regardless of the evidence.  What is worse is that each statement probably does have a nugget of truth from the prosecutor’s perspective and is thus somewhat believable by a jury.  An experienced criminal defense trial lawyer must call the prosecutor out on these types of arguments and expose them for what they are.  Great ways to convict the poor schmo in the defendant’s chair regardless of whether they may be innocent.

Combating these Tactics

Jurors have to be told that, while yes, a person that looks decent on tape but still may be drunk is extremely dangerous — a person that looks good on tape may just be okay to drive too….

…Or that yes, a skilled criminal doesn’t leave much of a trace of a crime — but another reason there are no traces at the crime scene is that the accused might just be innocent…

…Or that yes, an alleged victim may retract an accusation because of stress or coercion — but they might also retract their accusation because it wasn’t true to begin with.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum is not a privileged communication nor does it create an attorney-client relationship.

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Theft of Service

January 23, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Theft of service is a criminal charge where the alleged victim accuses someone of stealing services instead of actual property.  An example may include where someone hires a contractor to build something that he never intends to pay for.  Also, it is a law used by rental companies to charge people with theft if they don’t return the rented property.  It is controlled by Texas Penal Code 31.04(a) and says in relevant part:

“A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:

“(1)  he intentionally or knowingly secures performance of the service by deception, threat, or false token;

“(2)  having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them;

“(3)  having control of personal property under a written rental agreement, he holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or

“(4)  he intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make payment after receiving notice demanding payment.

The punishment levels for theft of service are the same as for normal theft charges.  This is to say that the level of offense is governed by the dollar amount alleged to have been stolen.

Theft of service is generally much harder to prove than a normal theft charge.  This is because there often isn’t a clear distinction between a bad business deal and fraud.  The key is the “intent” element.  The state must prove beyond all reasonable doubt that the accused planned to steal the services all along.  This can be extremely difficult because often the motive for someone not paying a bill lacks criminal culpability.

The second part of the statute in 31.04 creates presumptions that the court can use to instruct the jury that a person is presumed to have stolen in certain circumstances.  An example of this is where an accused fails to make payment within 10 days of receiving notice from the victim to make payment.  The presumption, though, is rebuttable and the jury does not have to accept it as true.

Theft of service — like theft — is a very serious charge.  Though to criminalize a deal gone bad may seem easy to deal with — you should get a lawyer regardless!

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

 

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