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The U.S. Court of Appeals for the Fifth Circuit ruled in July that the police do not need a warrant to access mobile phone subscribers cell phone tower data. The Fifth Circuit, which has the final word on matters of Federal law in Texas, held that warrantless access to such information by police is not a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure.

Instead, according the the Fifth Circuit, the information is merely a business record created and maintained by the private cell companies. Further, the Government is not involved in the creation or storage or the accumulated data, and for a variety of reasons, the Court held that an individual has no expectation of privacy in the data.

What does this mean? As a practical matter, the phone in your pocket or purse is a de facto tracking device. If you use a cell phone you may be tracked to a relatively small area by use of the cell phone tower data. This data is now accessible without a warrant.

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In the practice of law, I am asked questions on Expunctions and Non Disclosures on an almost daily basis. Many people are confused by the two. An Expunction Order and an Order of Non Disclosure are two very different legal remedies, with different eligibility requirements.

Though this article cannot be a comprehensive legal guide, I want to explain the basic differences between Expunctions and Non Disclsoure.

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The use of dogs trained to detect drugs is a common  interdiction tool used by the police.  Typically, if a properly trained drug detection dog alerts on the presence of illegal drugs, the alert itself may be sufficient to establish probable cause to search a car.

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A conviction for even misdemeanor possession of marijuana in Texas carries with it several consequences of which you may be unaware.  The hidden consequences will be found nowhere in a plea agreement or judgment of conviction, but may nevertheless affect your life negatively.

1.  Federal Student Loan Aid

  Congress established law, codified at 20 U.S.C. section 1091 that prohibits students convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance, from receiving any grant, loan, or work assistance for:

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The United States Supreme Court issued a pair of decisions today that directly address two important provisions of the U. S. Constitution.  The opinions issued were overshadowed by the Court’s decision in the Arizona voting law case, which garnered the overwhelming majority of media attention.

Buried in that news cycle however were two important Supreme Court cases addressing the Constitution.  The first, Alleyne v. United States, overruled Harris v. United States, which was decided only eleven years ago.  In Alleyne, the Court decided by a 7-2 majority that any fact which, if proven, will have the effect of increasing the statutory minimum range to which the accused is subject, must be submitted to the fact finder and proved.  In other words, any fact or facts that will increase the statutory minimum implicates that Sixth Amendment.

For Federal practitioners, I do not see this as an opening to a fundamental change in the sentencing process.  The facts and issues generally regarded as sentencing factors that may increase the punishment within the prescribed statutory range will still be considered by the sentencing judge at sentencing and may be found reliable with a jury finding and proof beyond a reasonable doubt.  The Alleyne case does not appear, for example, to affect a sentencing court finding that the defendant acted as an Organizer, Manager or Leader, or that the defendant Obstructed Justice. 

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The United States Sentencing Commission (U.S.S.C.) has submitted a number of amendments to the United States Sentencing Guidelines that are to take effect on November 1, 2013.  The amendments in their entirety may be found here.

From a practical standpoint, the most important amendment may be one of the changes to U.S.S.G. 3E1.1.  Section 3E1.1 is that provision of the Guidelines that addresses Acceptance of Responsibility.  The section provides for a 2 point reduction to the base offense level for a defendant who “clearly demonstrates acceptance of responsibility for his offense.”    The change to this section added the following language.

       “The government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”  

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When a police officer arrests a person in Collin County, Texas for Driving While Intoxicated, the officer may seek a search warrant from a judge if the person refuses to provide a sample voluntarily. 
 
When the officer applies to the Judge for the search warrant authorizing him or her to draw a person’s blood, the officer must prepare an affidavit of the facts that the officer believes will show that probable cause exists that evidence of a crime (Driving While Intoxicated) will be found in the body of the person under arrest.  That evidence usually takes the form of a quantity of alcohol in the blood of the person.  Because the act of securing a search warrant to take suspected evidence from a location in which the suspect has an expectation of privacy is a serious and solemn matter, the law imposes a requirement that the police officer seeking the warrant present a “sworn affidavit” to the judge in support of the search warrant.  Texas Code of Criminal Procedure 18.01(b) The requirement of preparing an affidavit and swearing to the truth of it’s contents impress upon the officer the serious nature of the matter at hand.

The issue of whether section 18.01(b) requires a police officer to personally appear before the judge to swear out and oath, or whether the officer may simply swear to the truth of his or her affidavit over the phone, is an issue that has been debated by lawyers and judges quite a bit over the last few years.  Until recently, the Texas Court of Criminal Appeals has never weighed in to settle the question.  Finally, in January of 2013, the Court decided the case of Clay v. State of Texas

In Clay the Court succinctly ruled that section 18.01(b) does not necessarily require an officer to be in the personal presence of the judge from whom they seek the search warrant.  Swearing over the phone may be ok so long as “sufficient care is taken in the individual case to preserve the same

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Who is Erdman, and why should you care?  Erdman is a case decided by the Texas Court of Criminal Appeals nearly two decades ago and has been the law of the land in Texas for that period of time. 

The Erdman case established that police officers who have arrested a Driving While Intoxicated suspect may not provide so called ” extra statutory” information concerning the consequences of  refusal to submit to a breath test.  In plain terms,  The Erdman court explained that police are required by law to inform suspects about the legal consequences of refusal – nothing more and nothing less. 

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When someone has been charged with a criminal offense, at some point the decision must be made to plead guilty or exercise one’s right to a jury trial.  This statement is true in most criminal cases.  I say most,  because some criminal cases are dismissed by the prosecutor before trial or plea.

The decision to enter a guilty plea or insist on one’s right to  a trial is a very important one for one’s future.  There are a number of factors that go into the decision to accept a plea bargain offer or .  The decision is very case specific and can’t be made until a lawyer thoroughly investigates the facts of the case, including speaking to the witnesses where possible, and fully understands the law applicable to the case.  Other important but somewhat intangible considerations involve the defense lawyer.  Does he or she practice in the county in which the charge is pending?  Does the lawyer know the practices of the particular court in which the case is pending?  Has the lawyer tried this type of case before and is he or she familiar with the sorts of punishments are common for thus type of offense.

It is not possible for your lawyer to advise you as to whether you should try the case or accept a plea bargain offer unless the attorney has the information I discussed above, as well as a realistic grasp of what sorts of outcomes are reasonably likely in the case pending against the client.  An inexperienced attorney is not going to know whether a particular plea bargain offer is “good” or “bad.” 

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A recent decision of the U.S. Court of Appeals for the Fifth Circuit raised some eyebrows in Federal criminal law circles.  In the case of U.S. v. Rodriguez – Escareno, ___F.3d___, 2012 WL5200190 (5th Cir. Oct. 23, 2012)  the Court vacated and remanded for resentencing,  on a plain error standard, where the District Court imposed a 16 level enhancement for defendant’s previous conviction for a “drug trafficking offense.”

Mr. Rodriguez – Escareno was indicted by a federal Grand Jury for the crime of  Illegal Reentry, and he plead guilty to the charge.  In the Federal system, when an indicted person pleads guilty, a Presentence Investigation Report (PSR)  is prepared.  One of the matters that the PSR addresses is the existence of prior convictions.  Mr. Rosdriguez – Escareno was previously convicted of a conspiracy to distribute methamphetamine. The PSR determined that Rodriguez-Escareno’s previous crime was a “drug trafficking offense,” which permitted the application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i).  On the surface, it seems obvious that a drug conspiracy withing the meaning of the Federal criminal statute will be considered a drug trafficking offense within the meaning of the U.S. Sentencing Guidelines; at least that is what everyone in Mr. Rodriguez – Escareno’s case appeared to believe.