Only Results Matter

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locker-1426008.jpgAll of us have had the experience of being called to the principal’s office. Well, most of us. Many juvenile delinquent conduct investigations begin this way, with a call and questioning by the principal, a search of a student’s locker or purse, or a pat down of a student suspected to be in contraband. Our first thought as Americans would assume that a student at a school has the same Fourth Amendment protection against unreasonable searches and seizures as an adult, but that isn’t quite so. The Supreme Court directly addressed this issue in New Jersey v. T.L.O., 469 U.S. 325.

In T.L.O., a principal had searched a student’s purse and found marijuana, cigarettes, money and drug notes after information from a teacher that the student was smoking cigarettes in the bathroom and in possession of cigarettes against school rules. The Supreme Court upheld the search, stating that different standards apply to searches of students by school officials than searches by police and held:

“We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of school children with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the …action was justified at its inception…; second, one must determine whether the search as actually conducted was ‘reasonably related in scope to the actual circumstances which justified the interference in the first place.'”

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Harley.jpgSection 15.02 of the Texas Penal Code makes criminal conspiracy a crime one level lower than the actual substantive offense. It states: “(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement…(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.”

Thus, to have probable cause to arrest a biker present at the Waco Twin Peaks on the day of the shooting for suspicion of conspiracy to commit capital murder, an officer would need probable cause that that individual specifically took an act that day intending that a felony be committed, agree with another person that they engage in conduct that would constitute capital murder, and one of them perform an act in furtherance of the conspiracy. Thus, being a biker there for the meeting alone would not be anywhere near probable cause in itself to be arrested for conspiracy to commit capital murder, even if you were wearing a similar jacket or vest to bikers involved in the shooting. The sweep was very broad and we should all be concerned about the implications of such a mass arrest. Injustice anywhere is a threat to justice everywhere.

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Texas DPS.gifThus, following the shooting, the police had the right to not only arrest any person they observed shooting weapons at others, they would have the right to conduct a protective sweep of not only the outside of the restaurant, but the inside of the restaurant for persons they believed would be a continuing danger. Any person found to be in possession of a firearm would be in violation of the law if the restaurant, Twin Peaks, sells alcohol and the alcohol accounts for 51% of its revenue. Possessing a firearm, even with a conceal and carry permit, is prohibited on the premises (including the parking lot) of such locations. Any customer possessing a firearm inside the restaurant without a conceal and carry permit would also be subject to arrest.

However, the jump to arresting everybody present is where the Constitutionality of the arrests is questionable. Police would, after a protective sweep, be able to pat down suspicions persons for “officer safety” if they have reason to suspect they might be armed and a danger to the officers. Wearing a jacket matching those who were involved in the shootout probably gets officers to this standard, and it is probably not unreasonable to pat down every person reasonably suspected to have affiliation with those involved in the shootout. If they are in possession of a firearm or other illegal items, they can be arrested for such and these are also felony level charges. But probable cause of conspiracy to commit capital murder is a very high standard that is probably only reachable with a few suspects.

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RifleCartridges.jpgEach biker shooting at other bikers without justification could be arrested for murder or capital murder. It is capital murder in the state of Texas to unlawfully kill two people in the same criminal episode. However, none of these shooters appear to have been identified in the media. It has also been reported that the police were shooting at people they believed to be wrongfully shooting others, further complicating the scenario. Police and citizens have the right to use deadly force to defend third persons where reasonable, just like any biker present who is in reasonable fear for his life has the right to use deadly force against another to defend himself.

Additionally, following the gunfire, the police would have the right to do a protective sweep of the area. A “protective sweep” is a “quick and limited search of the premises” “conducted to protect the safety of police officers or others.” Protective sweeps are generally conducted incident to an arrest, but the absence of an arrest does not preclude a protective sweep, even in a defendant’s home. For the sweep to be valid, the police must not enter a premises illegally, and their presence must be for valid law enforcement purposes. A legitimate protective sweep must be supported “‘by a reasonable, articulable suspicion … that the area to be swept harbors an individual posing a danger to those on the scene,” and may be no more than a “cursory inspection of those spaces where a person may be found.” A police officer may sweep a premises only if he possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that police officer or to other people in the area. Finally, the sweep must “last[ ] no longer than is reasonably necessary to dispel the reasonable suspicion of danger.”

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swat-1-585835-m.jpgLast week, all the news circled once again around a Waco, Texas law enforcement situation. Twin Peaks restaurant was apparently hosting a “biker” day, and several motorcycle clubs were in town for a meeting of a council of clubs. One Dallas lawyer said the meeting revolved around legislative issues dealing with motorcycles. However, the local police were suspicious because some groups are labeled as Outlaw Motorcycle Gangs by Texas law enforcement, and police thought the situation was ripe for explosion. One motorcycle club reportedly showed up uninvited, and a fight broke out in the parking lot. We don’t know what exactly happened, but when the shooting stopped, nine bikers were dead. Police then arrested approximately 170 bikers alleging probable cause that they conspired to commit capital murder. A judge has held each on $1 million bonds, which normally requires raising at least $100,000 in cash or other security.

Probable cause for arrest is a low standard, and is what officers must establish to make roadside arrest or to obtain a search warrant for a house or make a warrantless search of an automobile or other property. Stated most simply, probable cause is some reliable evidence to believe that a crime has been committed, and that a specific person committed it. Probable cause must be individual to each person arrested. The big question is, “how did police have individualized probable cause for each biker arrested in Waco?”

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statue-of-liberty-4-1420903-m.jpgHowever, Texas’ public lewdness statute proscribes a wide range of conduct, including the consensual touching of breasts outside the clothing in public. Sec. 21.01. defines: (1) “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object. (2) “Sexual contact” means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. (3) “Sexual intercourse” means any penetration of the female sex organ by the male sex organ.

The Fifth Circuit noted the Texas’ Attorney General decision in the Matter of Silva-Trevino, whereby Texas’ highest lawyer opined that even indecency with a child is not a per se a crime of moral turpitude, because the law proscribes any sexual contact with a child even if the actor reasonably believes the child to be 17 or older. The court then distinguished a BIA decision relying on California’s indecent exposure statute, noting that the Texas statute does not require conduct to actually be “lewd” despite its title, and that the California statute required an actor to director the victim’s attention to his genitals.

The case was remanded to determine the specific criminal acts Mr. Cisneros was convicted of performing, and for further action consistent with the opinion. Warning: do not consider this case to be an open invitation to sneak into our country and contact the anus of a waterfowl with your mouth.

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passport-2-807486-s.jpgSalvador Cisneros came to the United States to realize the American dream, and part of his dream might have ranged from fondling breasts in public to joining the mile high club. Having been discovered in the United States without permission to be here, he applied for a “cancellation of removal” under the Immigration and Nationality Act. Due to his record of being convicted of public lewdness under 21.07 of the Texas Penal Code in 2006, the immigration judge denied his petition categorically, stating that public lewdness was per se a crime involving moral turpitude,and therefore makes one subject to deportation.

Texas Penal Code 21.07 states: (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his: (1) act of sexual intercourse; (2) act of deviate sexual intercourse; (3) act of sexual contact; or (4) act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl. (b) An offense under this section is a Class A misdemeanor.

Thus, the immigration judge states it was a crime of moral turpitude to be convicted in any manner under this section. However, the Fifth Circuit reversed this decision by noting that the Board of Immigration Appeals’s definition of a crime of moral turpitude is conduct that “is inherently vile, base or depraved” as well as contrary to societal standards.

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syringe-1336409-m.jpgKudos to the people of Maryland for finally putting an end to state sanctioned homicide. All life is precious, including the lives of those who may not “deserve” to keep living. But, an interesting thing happened on the way to humanity. What is Maryland to do with its “inventory” of formerly suitable gurney candidates? A recent Wall Street Journal article notes that the state is giving a permanent stay-of-execution to the condemned, a welcome Christmas present. It notes that only 35 people were executed in America in 2014, and only seven states joined in the historical passtime. A tip of the hat to outgoing governor Martin O’Malley, who said that executing Maryland’s final four death row inmates “does not serve the public good of the people of Maryland.”

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police-on-the-scene-1172422-s.jpgA 17 year old in Tarrant County was arrested for tweeting a picture of picture of an airsoft rifle aimed at a marked Fort Worth police vehicle and “Should I do it? They Don’t Care For a Black Male Anyways.” Police justified their arrest, despite the rifle being an airsoft, under the Texas terroristic threat law, penal code 22.07 which states: (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

Here, Mr. Toliver will have a great defense that he did not make a threat against any actual peace officer. The State’s best argument will be that he threatened violence to property to cause a reaction by an emergency organization. It will be an interesting case to follow.

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And, when your client makes incriminating statements of whatever nature to your competency expert, you have the ability to decide whether presenting that expert is worth bringing up these statements. They are privileged as long as you do not call your expert or disclose his report. You don’t have to even disclose to the State that you have had an expert who reviewed your client for insanity. MOVE EX PARTE. You are allowed to. You don’t get to do any of this with competency evaluations. If the expert finds your client to be incompetent, you can move for a competency evaluation which you know your client will fail. In that case, demand to be present when the evaluator speaks to your client to help him get through the interview without further incriminating himself. You have a right to be present, and the evaluator will honor that right.

You have read over 1500 words about representing the mentally ill, but without any mention of the insanity defense thus far. I believe most juries like the insanity defense about as much as they like suppression charges. They are “technicalities.” But, if you have nothing but an insanity case to present, by all means present it and request every applicable jury charge. If you truly have a not guilty by reason of insanity, sometimes the state will AGREE to such a finding before the Court because your client is then shipped to the State hospital for up to the maximum range of punishment unless two doctors certify that he is safe to be on the street.

Remember, the State gets to have their expert interview your client if you present an insanity defense and an expert who has interviewed your client. Dangerous grounds. However, in the right case it is the way to go. But, remember that mental illness can also be a ground to negate intent without an insanity defense. There was a recent case where a client was on capital trial for shooting police officers who he thought were Muslim terrorist invaders, and it was error for the court to not let him put on expert testimony that he believed this to be true, and was acting in self defense due to his insanity. Thus, he was not “intentionally” shooting at police officers. Very rare case, but something to remember.

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