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MOTION TO SUPPRESS GRANTED!
CASE DISMISSED!
THIS CASE IS ABOUT A POLICE OFFICER INVADING A CITIZEN'S RIGHT TO PRIVACY.
THE EVIDENCE WILL SHOW THAT ON THE AFTERNOON OF AUGUST 6, 2014, A MEMBER OF OUR COMMUNITY WAS ENJOYING THE WARM BREEZE PASSING THROUGH HIS CAR AS HE WAS PARKED IN HIS NEIGHBORHOOD PARK PLAYING BUBBLE WITCH 2, WHEN A POLICE OFFICER DECIDED TO HIM.
THE OFFICER DIDN'T SEE JOHN DOE BREAK ANY LAWS.
JOHN DOE DIDN'T NEED ANY HELP.
JOHN DOE WAS SIMPLY MINDING -- HIS -- OWN -- BUSINESS.
THE ONLY REASON THE COP BOTHERED JOHN DOE WAS BECAUSE JOHN DOE HAD A NICE CAR IN A POOR NEIGHBORHOOD.
I HAVE THE HONOR AND PRIVILEGE OF REPRESENTING JOHN DOE...
Unfortunately, although selfishly, I never got to give this opening statement that I worked for hours to prepare. Not only did I prepare it, mind you this is just the introduction, but I practiced it probably ten times, making audio recordings of most my attempts.
The sad thing is that I even had to prepare for this trial. From the moment I spoke to my client about this case, I had a feeling it was a bullshit racially motivated stop/seizure/search. After reading the offense report, I was near certain that something fishy took place. After researching and reading the law, I knew for certain the search and seizure were unlawful under the Constitution.
The baby lawyers over at the district attorney's office barely have a chance to catch their breath they move between courts so often. The first prosecutor on this case offered my client time served. That means he pleas guilty, gets credit for his two days in jail and he doesn't have to do any more time or pay a fine. It is pretty much a standard offer. A time served is ALSO A GUILTY PLEA, and most defendants don't comprehend that. It also means that your license will be suspended. This particular client was a professional limo driver. He had no chance but to Take That Shit To Trial.
I only met the second prosecutor the Friday before trial. He was a very nice guy and great to work with. The first thing he said to me is that he doesn't think he can make his case. We approach the Harris County Judge, who kind of urges the state to dismiss the case. The prosecutor doesn't have that authority, and had to get the approval of his chief (boss). The judge then urges the prosecutor to cal the cop, which he does. The cop then changes his story up just enough to make the case tryable in the state's eyes. Remember, The Eyes of Texas Are Upon You.
You see, the arresting officer claimed he made a welfare check on my client. A welfare check is also known as the community caretaking function. The Community Caretaking Function is an exception to the warrant requirement of the Fourth Amendment if the US Constitution. Remember, all warrantless searches are preemptively invalid. If the defendant files a Motion to Suppress, the government has the burden of proving that the search was legal (not unlawful). So that's exactly what I did in this case. Based on the advice of experienced and successful lawyers, I filed a motion to suppress on the day of trial, with a more detailed brief in support.
Because the cop was not at court on time, we went ahead and picked the jury. If the cop was on time, we would have done the motion to suppress and not picked jury. So my good friend, Armen Merjanian helped me out. He did half of jury selection (voir dire) and I did the other half. He was excellent.
We had a great jury pool and ended up with a great all female jury. One of the jurors apparently recognized me from law school. She went to optometry school there. Go Nova!
After selecting the jury, I called the officer as my first witness. He was a nice guy. I kept him in check with short leading questions that required only yes, no, correct, or true answers. Once I got him in a groove, it was pretty much smooth sailing. Now this judge is known to be very conservative and as one who doesn't grant motions to suppress all that often, but she followed the law.
In order for a welfare check to be valid, there is a two part test: First, the court has to determine whether the officer was primarily
motivated by a community caretaking purpose; and second,
whether the officer’s belief that the individual needs help was
reasonable. Gonzales v. State, 369 S.W.3d 851, 854, (Tex. Crim. App. 2012)
(Emphasis added).
The community caretaking function is only properly invoked when the officer's intentions are completely divorced from detection, investigation and gathering evidence. Here, the offense report said it all: "Fifth ward and Brewster Park are known for high amounts of drug trafficking and prostitution. I decided to make a welfare check. BULLSHIT!
So, in order to determine whether an officer's belief that an individual (suspect in this case) needs help, the court is supposed to look at four factors, while giving the most weight to the 1st and 4th element.
i. The
nature and level of distress exhibited by the individual;
ii. The
location of the individual;
iii. Whether
the individual was alone and/or has access to assistance independent of that
offered by the officer; and
iv. To
what extent the individual—if not assisted—presented a danger to himself or
others. Id. (citing Wright v. State, 7 S.W.3d 148, 150 (Tex.
Crim. App. 1999).
And you know what I JUST realized, 1 plus 4 equals 5. This arrest occurred in the 5th Ward... it was written in the stars!!! So all I did (not easy or fast) was form my questions based on the elements. I nailed the cop. Of course he changed his story when the prosecutor got to ask him questions, but I cleaned it up.
My client then testified, because he really wanted to tell his story. It was kind of horrible, but we still won, and in the end my client went home happy and I went home with this...
I know my streak will end some time, but STILL UNDEFEATED.
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______________________________
Cory Roth
Cory Roth Law Office
4306 Montrose Boulevard, Suite 240
Houston, Texas 77006
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