Attenuating the Taint

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

     1. The temporal proximity of the arrest and the confession;
     2. The presence of intervening circumstances; and
     3. The purpose and flagrancy of the official misconduct (in making the arrest).

In State v. Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

This opinion was a tease.  I read all 29 pages expecting a certain outcome and then the CCA (by a 5-4 vote) pulled the rug out from under me in the final two paragraphs.  Apparently, I wasn’t the only one that felt this way.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

While it is beneficial for the CCA to create precedent where none previously existed, if it cannot apply that precedent to the facts of the case correctly, what good is it?

From Dry Land to Swimming: A Few Thoughts on Transitioning from Government Attorney to Private Practice

On March 1st of this year I stepped away from the dry land of a steady government paycheck (with benefits and retirement) to swimming in the ocean of private practice. Before I did, I asked a few attorneys (who shall remain nameless) some advice about making the leap. The general consensus from the attorney’s I talked to was, “Don’t do it!” While their misgivings were discouraging, something about that advice didn’t add up to me. Now that I’ve been practicing for a couple of months I understand why they advised me against the move…and I respectfully dissent.

Why did they tell me not to do it?

First, there is no more “steady”. The leap from government attorney to sole practitioner has been as far from steady as you can get. The word I use to describe my life to friends and family is “chaos”. That word is about as accurate as it gets. Between evaluating new clients, balancing current clients and keeping up with court dates and deadlines there is always something I need to be doing and staying on top of. (It really makes sitting down to write a blog post excruciatingly painful!). In government work, I worked from 8:00 a.m. to 5:00 p.m. Now, I’m on-call 24/7.

Second, there is the “unknown” factor. As a government attorney, I new how much I made and what I was supposed to do. My paycheck was always the same and automatically deposited into my account at the same times every month. I was able to budget, plan, save and keep my finances very organized…not so much now. Everything now is unknown. Week-to-week and even day-to-day, I don’t know what income I will be bringing in. There’s no way to know how many clients I will sign up. There’s no way to know what kind of case I’ll be working on in the future. There’s no way I’ll know what costs are going to pop up unexpectedly. There is so much unknown that it’s impossible to feel safe.

Third, it’s all me! When I worked for the government, I had a two legal assistants and a handful of attorney’s to bounce things off of. Now, it’s all me. I find that the tasks of researching, preparing motions, phone calls, emails and making decisions regarding my clients cases can be overwhelming at times. The responsibility of not only keeping my business sustained, but effectively representing my clients seems impossible sometimes. Psychologically, the stress and pressure has been taxing.

Now, the dissent:

It’s not steady, but it’s exciting. There is no boredom in what I do now. Now, I’m not going to say I was bored working for the government…but I will say that the pace of things now definitely keeps me on my toes. Deep-down, I enjoy the chaos. It’s stressful, and can make me irritable at times. But, for the first time since graduating law school (outside of my courtroom experience), I really feel like a lawyer. Plus, there’s always some new problem, some new situation that stimulates me to bring out my potential.

There is so much “unknown”, but some of it is really good! I don’t know what my income will be but it could be so much more than it used to be (and I’m finding that if I work hard and serve my clients to the best of my ability it likely will be). There have also been some great rewards in getting to know the people I’ve been helping and building relationships with. Those rewards were unknown when I started. Sure, it’s impossible to feel safe…but it’s also exciting to know that something really great and rewarding could walk through the door at any minute. That “unknown” is something that is constantly exciting and always hovering in the back of my mind.

Finally, it’s all me!!! When you help a client, or help them make a decision that they had not previously thought of, the rewards are indescribable. The pride I have in my work now does exceed what I previously did for the government because I know that nobody helped me come to my final decision but me. In addition to taking stock in your own work, there is that added benefit of being your own boss. I can take off when I want to as long as I'm caught up on my work. (Granted, that has not been often...but at least I know it's a possibility!)

All-in-all, I completely understand why attorneys would advise me not to go out on my own. But, it fits my personality and I’m happier now (despite the chaos and stress) than I ever have been. So, if you’re out there making a nice, steady safe paycheck and you’re comfortable with that, then my advice is to stay there. But, if something about that routine leaves you wanting for more and you’re willing to live with the fast-pace chaos, then jump on in…the water is fine!!!

Comment Rejected (Sorry SEO gurus)

As most bloggers do, I enjoy reading thoughtful comments.  It confirms that there is indeed someone out there reading my ramblings.  When I first began this blog, I published every comment that came in.  I was completely unaware of the SEO underground with its own agenda.  Now I’m wiser, savvier.  I can spot an SEO comment a mile away, and I reject them all.  This blog does not exist to drive traffic to your law firm.  If you write a thoughtful comment, even if you embed your firm’s link in the name, I will probably publish it.  But if you do as those listed below, your comment will be rejected.  I know that the SEO gurus could care less.  They probably submit thousands of comments a day, indiscriminately.  But they won’t be getting any link love here.

Here are some of the recent comments that I received and rejected (all from the same Criminal Defense firm in San Antonio).  Notice how the commenter does not even try to use a fake name – they just call themselves what they hope someone might be googling.  Shameless.

Comment from “San Antonio Criminal Defense Attorney”

This is a very good post. Especially as it contains information I haven’t read before.

Comment from “San Antonio Criminal Defense Attorney”

You have brought up very good details, appreciate it for the post.

Comment from “The DWI Sharks” (a.k.a. San Antonio Criminal Defense Attorney)

Thank you for sharing this post about the Criminal Defense Attorney, this is a big help for me and to the others as well on how to choose the right criminal defense lawyer. Thanks again :)

It is abundantly clear (from the grammar and syntax alone) that these comments were not submitted by lawyers.  I enjoy writing this blog.  I enjoy reading slip opinions and other current legal issues and posting about them.  But this blog does not exist to help drive internet traffic to your law firm’s website.  Sorry SEOsters - find another way.

The Beauty of Specialty Courts

As I'm sure you've noticed by now, specialty courts (drug courts, DWI courts, reentry courts, etc.) are rapidly becoming the norm in most criminal jurisdictions.  Why the increase in popularity?  Simple.  They work.

The National Association of Drug Court Professionals' website cites the five primary goals these programs are working to achieve.

     1) They reduce crime
     2) They save money
     3) They ensure compliance
     4) They combat addiction
     5) They restore families

Incarcerating addicts only delays their inevitable addiction cycle.  Specialty courts offer a real, life-changing alternative that not only aid individuals in their battle against addiction, but also improve the crime rates in every community in which they exist.  These specialty courts work to provide intense supervision through the cooperative efforts of local probation offices, prosecutors, defense attorneys, and, most importantly, judges. Read more about it here.

If you haven't researched specialty courts in your jurisdiction, I'd highly encourage you to do so immediately.  These programs could offer your present clients an incredible opportunity your previous clients didn't have.  Let's hope specialty courts continue to gain traction, and that more specialty court keep popping up throughout Texas.  It is important to remember that the criminal justice system is not always about punishment, it's also about rehabilitation.

Nothing to Report

I’ve written a couple of blog posts recently and then deleted them. They weren’t very good and I didn’t want my name at the bottom of them. I guess I need an alias for those posts that I don’t wish to claim. I’ve also read several recent Texas decisions, but I didn’t find any of them particularly blogworthy. I’ve trawled the internet in search of something worth sharing…nothing. So, just like I use to do when I was the firewatch in the squad bay and a senior officer approached me, I have nothing to report.

But check these guys out if you’re in the mood for a good law-related read:

• For something witty, try Jamison Koehler; or
• For something curmudgeony (pretty sure that's not a word), try Scott Greenfield.

Or...for a completely ridiculous YouTube video of Finland's version of the song YMCA with some very sketchy looking backup dancers, see HERE. 

Wow...Just Wow.

I cannot believe what I just saw - outrageous police brutality and utter disregard for human life.

See what I'm talking about HERE.  This video is unbelievable.

Greenfield posted about this HERE as well. 

Wow...

More Rules of the Road: Passing on the Shoulder is A-Okay

It appears that the Texas Court of Criminal Appeals is also becoming the State’s highest traffic court.  Last week, I posted about a CCA case involving merging traffic.  This week, the CCA issued an opinion on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop v. State, the Appellant was pulled over after a police officer observed him using the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated.  At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop.  Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

     (2) to accelerate before entering the main traveled lane of traffic;

     (3) to decelerate before making a right turn;

     (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

     (5) to allow another vehicle traveling faster to pass;

     (6) as permitted or required by an official traffic-control device; or

     (7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI.  The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely.  Merely driving on an improved shoulder is not prima facie evidence of an offense.  Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred. 

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.  So there you have it - traffic lesson number two from the CCA this month.  You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

Judge Johnson concurred, noting that driving on the right should at or near a railroad crossing is typically unwise.

Lane Ends, Merge Left

Back in 2010, I posted about Mahaffey v. State, a case in which the CCA directed the 12 District Court of Appeals (Tyler) to determine whether a "lane merge" is a "turn" under the Texas Transportation Code, such that it requires a driver to signal.  If a "merge" does not require a turn signal (as the appellant failed to do in this case), then the police stop was improper (without reasonable suspicion) and the evidence of his DWI gained from the stop should have been suppressed.

The 12th Court took another look at the case and once again determined that a "merge" was a "turn" and thus required a turn signal.  Apparently, the 12th Court did not get the CCA's hint the first time around.

In a 5-3 opinion (HERE) with Judge Meyers concurring, the CCA reversed (again), holding:

We disagree with the State's contention that the termination of a lane does not affect whether a driver changes lanes under the signal statute.  As a practical matter, "changing lanes" requires the existence of more than one lane: In order to change lanes from Lane A to Lane B, Lane A must exist.  Appellant did not change lanes.  The two lanes became one. ...[N]o signal is required when two lanes become one. 

Presiding Judge Keller dissented and was joined by Judges Price and Keasler.  She would hold that because Appellant's lane ended, he had to change lanes, and that changing lanes requires a turn signal.

Well, it looks like logic prevailed in this one.  You cannot change lanes if there is only one lane in which to drive.  The majority got it right here.  No signal is required for a lane merge.  Remember that if a police officer tries to pull you over for failing to signal.

Pre-Arrest, Pre-Miranda Right to Remain Silent

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…