A Lesson for Lawyers and the Public: How to Get, Use, and Win With The Houston Police Department Body Worn Camera Policy

Body Cameras, The Police, and Criminal Cases

University of Cincinnati Police Officer Ray Tensing would have you believe that he shot and killed Samuel DuBose in self-defense after Mr. DuBose reached for something then drove off, dragging Officer Tensing.

Police body camera footage shows that Officer Tensing and the thin-blue-line lied in their offense reports.

Texas Trooper Brian Encina would have you believe that Sandra Bland was arrested for violating a lawful order.  Sandra Bland was found dead days later after being charged with assaulting a peace officer, an assault which was conveniently not on camera.

Dashboard camera footage shows that Trooper Encina violated department policy and failed to inform Ms. Bland why she was being arrested.

North Charleston, South Carolina Officer Michael T. Slager would have you believe that he shot Walter L. Scott in self-defense because he feared for his life after Mr. Scott took is Taser.

A bystander’s cell phone footage showed that Officer Slager cowardly shot Mr. Scott eight times in the back as Mr. Scott ran in fear for his life.

WHAT DO THESE INSTANCES HAVE IN COMMON?

Each of these occurrences of police brutality members of our communities share many troubling facts in common.  First, a driver committed a minor traffic violation.  Second, an officer used unnecessary force.  Third, a person who was entitled to due process and equal justice under the law was denied his or her constitutional rights.  Fifth, the suspects died in police custody.  Sixth, the officer lied on his officer report or arrest affidavit.  Seventh, the events were caught on camera and exposed the truth.  This paper focuses on using Body Worn Cameras to demonstrate that an officer either lied in his offense report or violated your client’s constitutional right to be free from unreasonable search and seizure.

Police unions are relatively correct in their assertion that officer involved shooting that result in civilian deaths are rare in relation to the total amount of officer-civilian interactions.  However, there still remains this staggering number:  690.  Six-Hundred-and-Ninety civilians have died at the hands of police officers as of August 4, 2015 according to killedbypolice.com.

Having just returned from my semi-annual Gideon’s Promise training session, I am reminded of an important fact that its founder, Jonathon Rapping stresses.  For every Michael Brown, Samuel DuBose, Sandra Bland, Andrew Scott Gaynier, Ezell Ford, and Eric Garner, there are hundreds of thousands of criminally accused people being processed into jails and prisons around the country like sheep at a slaughter house.

In light of the national conversation regarding police brutality and video footage, I want to advise you of my experience involving a lying police officer, an unlawful arrest, body camera footage, and an in-trial dismissal following a successful motion to suppress.  If every lawyer takes the time to learn from my recent experience, I am confident we will chip away at number of people going to jail and prison, which is a seldom seen tragedy that is destroying America right before our very eyes.

WHAT THE POLICE SAY:

On July 7, 2014, my client, Jane Doe, was sitting in the driver’s seat of a parked car at a public park.  Her friend, John Doe, was sitting in the front passenger seat.  Both front doors were wide open.  Jane was eating a slice of pizza as John was smoking a blunt.  According to the officers, they were doing a standard park check in a high crime and high drug park, when they noticed a small pile of loose tobacco outside John’s door.  After noticing the tobacco, according to the police, they engaged in a consensual encounter, but while walking up to the car, they noticed John place ‘something’ in the ashtray, and smelt the strong odor of marijuana as soon as they exited their vehicle.  The cops then detain both suspects and conduct a search of the passenger compartment of the vehicle where they find two blunts in plain view within easy reach of Jane.  The officers then write that they walked around the trunk and smelt the strong odor of marijuana which gave him reason to open the trunk.  An officer opens the trunk and immediately finds almost two ounces of weed in a plastic bag packaged for sale.

WHAT THE BODY WORN CAMERA FOOTAGE SAYS:

One of the officers noted at the very end of his offense report that he was wearing and used a body worn camera.  The body camera footage reflects that the officers are driving down a dead-end driveway with two rows of parking spaces late in the evening while the park was full of visitors.  The park their marked patrol car directly in front of the car my client was in, effectively boxing the car and its occupants in.  The Mobile Data Terminal states that the officers initiated a self-initiated law enforcement activity.  The body camera is not turned on until both suspects have been taken out of the car and are cuffed.  The cop wearing the body camera then searches the passenger compartment of this darkly tinted car.  First, he finds an empty plastic bag on John’s seat.  Next, he finds a roach in the passenger side of the ashtray leaning towards John.  Then, he finds a roach deep inside the passenger side of the cluttered center console.  The officer then searches Jane’s purse, which was in the rear passenger side seat, where he finds nothing linking Jane to the crime.  Next, he walks around the rear of the car and does not mention anything about the smell of marijuana coming from the trunk.  He then searches Jane’s seat, where he finds nothing linking Jane to the marijuana.  Finally, the officer takes the key out of the ignition and opens the trunk.  About 10 seconds later he remarks that it smells like weed.  Although conveniently not on camera, the officer the opens up a men’s shoe box where he finds a many small plastic bags full of marijuana inside a large plastic bag.  Once the officer finds this weed, he says, “Oh fuck yeah!”

The cop then asks Jane whose car it is, she says its John’s.  The cop then asks a few questions and realizes that Jane is sober as a gopher.  The cop then turns his body camera off.  The cop then speaks to the obviously high John, and turns his body camera on.  The cop then talks to Jane, and turns his camera off.  The cop then talks to John, and turns the camera on.  The cop then turns his camera off before transporting Jane and John to jail.

Viuve Body Worn Camera Used By HPD

WHAT I LEARNED FROM THE BODY CAMERA FOOTAGE:

First, I learned that the police officers lied about the nature of their encounter.  Clearly, based on the video, there was nothing consensual about the encounter as the State argued at the motion to suppress.  Under State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008), a police-citizen encounter implicates fourth amendment protections in a totality of circumstances test where the officer makes a show of authority that a reasonable person would not feel free to ignore.  In Garcia-Cantu, the officer boxed in the suspect by paring his patrol car about 10 feet away from the suspect’s car on a dead-end street and shining his spotlight on the suspect vehicle.  In my case, the cops parked their car about 10 feet in front of the front bumper of the car my client was in, a car that was reversed back up to the curb, in a dead-end parking lot, before both officers exited their vehicle with their hands on their guns, walked to each side of the car and made authoritative orders.  Without the body camera footage, it was unlikely that I would have filed a motion to suppress based on what my client told me, and what the offense report said.  It was even less likely that I would win the motion to suppress.

Second, I learned that the officers lied in their offense report about two blunts being in plain view and easily within my client’s reach.  The blunt in the ashtray was within my clients reach, but it’s arguable whether it was in plain view, considering the officers could not see it before they entered the car.  The blunt at the bottom passenger side of the cluttered center console was clearly not in plain view, nor was it easily accessible by my client.

Houston Police Department Body Camera Footage Shows That My Client Was Unlawfully Detained Under Garcia-Cantu

Houston Police Department Body Camera Footage Shows That One Blunt Was Not In Plain View

HPD BodyCam Footage Shows That Second Blunt Was Not In Plain View

Third, at no point during the video footage could we see any loose tobacco outside John’s door.

Fourth, the office claimed that he smelled the strong odor of marijuana emanating from the trunk, but not once did he note the smell, despite narrating everything else in the video, until 15 seconds after opening the trunk.

Fifth, I learned that the officer turned off his camera essentially every time he spoke to Jane, but turned it on every time he spoke to John.

HOW TO MAKE THE MOST OF BODY WORN CAMERA FOOTAGE:

First and foremost, you need to get the police department’s body worn camera policy.  I was the first lawyer in Texas to get the Houston Police Department Body Worn Camera Policy.  A policy, even draft policy, creates the rules that officers must follow.  Humans rely on rules to establish what is right and wrong.  If we can get juries to understand in simple terms that the officer had a few rules to follow that are designed to protect the constitutional rights of members of our community, and that the police violated these rules, then the members of our jury will feel less comfortable with the officer’s actions because the police might just as easily violated their rights.

Getting the body camera policy was not easy, and don’t expect it to be.  The first problem I ran into was that the prosecutor did not turn over the body camera footage until out first trial setting.  I knew it existed because it was noted on the offense report, but I would suggest requesting body camera footage when you file for 39.14 discovery request at your first appearance.

The next problem I ran into was a Chinese wall.  The State not only refused turn over the Houston Police Department Body Worn Camera Policy, but the state also refused to admit the policy existed.  The state’s excuses ranged from there is no policy, it’s not a final policy, it’s a draft policy, the policy was not applicable, and you’re not entitled to the policy.

I filed the court’s standard discovery order, which the judge signed.  I made oral requests, and I made written requests all to no avail.  Finally as the trial was fast approaching, I filed an updated 39.14 Michael Morton Act request for “Any documents or reports related to Houston Police Department’s use of Body Worn Cameras, including, but not limited to, any HPD circular, training material, educational material, draft materials, and final policies.”  On the same day, I also filed a Texas Public Information Act Request with the Houston Police Department, and a Subpoena Duces Tecum for the same information.

The prosecutor again ignored my discovery request.  When confronted with why she wouldn’t turn it over, she said the policy doesn’t exist.  Little did she know, I was holding the policy in my briefcase.  The Houston Police Department objected to my TPIA request.  Surprise. Surprise.   However, the good civilian Custodian of Records at HPD complied with my subpoena.  Of course, it took the additional threat that I would subpoena the Chief of Police to testify as to why his department would not turn over the policy to the public, during the public input stage, but hey, you gotta do what you gotta do, and I was prepared to examine him.

WALLAH, THE HOUSTON POLICE DEPARTMENT BODY WORN CAMERA POLICY:

Once you have the body camera policy, you have to know how to use it.  You have to know how you are going to get it into evidence.  Once you figure that out, you get to know the policy like the back of your hand.  The better you know the policy, the more clear, concise, and effective your rule-based question can be.  The following is an example of my cross on the body camera policy.  The purpose of this cross is to establish why body cameras are used and rules on how they are supposed to be used.  Once the officer agrees to each rule, you can expose that he did not follow the rules he agreed to follow.

Policy Rule 1:  Houston Police Department is committed to protecting the constitutional rights of all people.

Police Rule 2:  Houston Police Department uses Body Cameras to collect the best evidence of every encounter between officers and the public.

Policy Rule 3:  Houston Police Department uses Body Cameras to preserve the best evidence of every encounter between officers and the public.

Policy Rule 4:  Houston Police Patrol Officers assigned Body Cameras must record all law enforcement activities.

Fact 1:  Body Cameras accurately reflect events.

Fact 2:  Body Cameras accurately reflect interactions.

Fact 3:  Body Cameras accurately reflect evidence.

Fact 4:  Body Camera footage is the best evidence of what happened.

Rule 1:  Before receiving your Body Camera, you had to learn how to use it.

Rule 2:  You went to a two hour course to learn how to use the Body Camera.

Rule 3:  You also learned the Body Camera Policy.

Rule 4:  You received a copy of the Body Camera Policy.

Rule 5:  Before being issued your Body Camera, you had to pass a test to demonstrate you knew how to operate the Body Camera.

Rule 6:  Before being issued your Body Camera, you have to pass a test to demonstrate you knew the Body Camera Policy.

Rule 7:  You passed your test.

Rule 8:  On the date of this arrest, you knew how to operate your Body Camera.

Rule 9:  On the date of this arrest, you knew the Body Camera Policy.

Rule 10:  The Body Camera Policy lists rules that you must follow when using your Body Camera.

Rule 11:  Officers are responsible for the Body Camera.

Rule 12:  Officers must check the Body Camera at the beginning of their shift to make sure it is working properly.

Rule 13:  Officers must check at the beginning of their shift to make sure the Body Camera has a sufficient charge.

Rule 14:  Officers must notify their supervisor any time a recording may be evidentiary.

Rule 15:  Officers must document the existence of a Body Camera video in their incident report.

Rule 16:  Officers must immediately report any malfunctioning equipment to a supervisor.

There a rules in the policy that state when you must activate your Body Camera.

Operation/Activation Rule 1:  If an officer discovers his camera is defective, the officer must immediately notify his supervisor.

Operation/Activation Rule 2:  Officers must begin recording with their Body Camera when they arrive on the scene for any call for service.

Operation/Activation Rule 3:  Officers must begin recording with their Body Camera when they self-initiate law enforcement activity.  (See squad car’s MDT to determine if and when officer began self-initiated law enforcement activity.)

Operation/Activation Rule 4:  Officers must begin recording with their Body Camera when they initiate a traffic stop.

Operation/Activation Rule 5:  Officers must begin recording with their Body Camera when they initiate a pedestrian stop.

Operation/Activation Rule 6:  Officers must begin recording with their Body Camera when they are flagged down to take law enforcement action.

Operation/Activation Rule 7:  Officers must begin recording with their Body Camera when they detain a person.

Operation Rule/Activation 8:  Officers must begin recording with their Body Camera when they attempt to detain a person.

Operation/Activation Rule 9: Officers must begin recording with their Body Camera when they arrest a person.

Operation/Activation Rule 10:  Officers must begin recording with their Body Camera when they when they are likely to arrest a person or take any other law enforcement action.

Operation/Activation Rule 11:  Officers must record all searches of people.

Operation/Activation Rule 12:  Officers must record all searches of vehicles.

Operation/Activation Rule 13:  Officers must record all searches of buildings.

Operation/Activation Rule 14:  Officers must record all searches of places.

Operation/Activation Rule 15:  Officers must record all pursuits.

Operation/Activation Rule 16:  Officers must record all transports of detainees of the opposite sex.

Operation/Activation Rule 17:  You may only violate these rules, per the policy, if it is immediately necessary to ensure your safety or the safety of others.

There are rules in the policy that state when you are allowed to turn the body camera off.

Operation/Deactivation Rule 1:  Officers must ensure that Body Worn Cameras are recording during the entire potential law enforcement activity.

Operation/Deactivation Rule 2:  The Body Camera must record until the incident is over.

Operation/Deactivation Rule 3:  An incident is over when all arrests have been made and the arrestees have been transported from the scene.

Operation/Deactivation Rule 4:  An incident is over after all witnesses and victims have been interviewed.

Operation/Deactivation Rule 5:  An incident is over after the officer has left the scene.

Operation/Deactivation Rule 6:  An incident is over after the citizen contact is complete.

Operation/Deactivation Rule 7:  An incident is over, if an arrestee is of the opposite gender, once the arrestee has arrived at jail.

Operation/Deactivation Rule 8:  If an officer is flagged down by a citizen, the officer must record the interaction, but may stop recording only if the citizen wishes to share confidential information.

Operation/Deactivation Rule 9:  Officers may stop recording when conferring with other personnel regarding the handling of a situation.

Operation/Deactivation Rule 10:  Officers may stop recording at the scenes of extended incidents.

Operation/Deactivation Rule 11: Officers may stop recording when no law enforcement action is occurring.

Operation/Deactivation Rule 12:  Any time and officer stop recording, he must audibly note the reason for termination.

Operation/Deactivation Rule 13:  Any time an officer stops recording for any reason, the officer must turn the camera back on immediately when the circumstance that caused the officer to stop recording has passed.

Recording/Documentation Rule 1:  The recording of a criminal incident shall be treated as evidence.

Recording/Documentation Rule 2:  Officers must record a chain of evidence/custody for all evidence.

Recording/Documentation Rule 3:  Officers must not alter, tamper, or destroy evidence. (Break into three questions).

Recording/Documentation Rule 4:  Officers must note in their offense report if he recorded an incident.

Recording/Documentation Rule 5:  Officers must note on all relevant forms involving the incident that there is body camera footage.

Recording/Documentation Rule 6:  All recordings in criminal cases must be retained for the period set by the statute of limitations.

The aforementioned questions serve several purposes. First, they establish that the officer was trained in how to use the Body Camera.  Second, they establish that the officer was trained in the Body Camera Policy, and knew how to follow the policy.  Third, they establish the officer knew the rules on the date of your client’s arrest.  Fourth, they establish that the officer knew when to turn on the camera.  Fourth, they establish that the officer knew when to turn the camera off.  Fifth, they establish that the officer knew how upload and store the Body Camera video.  Fifth, they set you up for a spoliation instruction. Sixth, most importantly, you are committing the officer to his testimony.

The officer must agree to each of these rules.  If the officer does not agree to each of these rules, you can impeach him and at least try to get the actual policy into evidence.  After getting the officer to agree to each of these rules, apply the facts of your case to the rules he agreed that he was supposed to follow.  There is a good chance that the officer did not follow his own rules, which is good for you.  First, hopefully you asked the jurors in some manner during voir dire if they expect officers to follow their own rules, policy, and procedure.  Second, you can use the testimony to support your theme of a rush to judgment, bad police work, your client’s rights were violated, or any other.  Third, these questions will help you seek to get a spoliation instruction.

In my case, the officer broke several rules.  The officer began recording later than he was supposed to.  He stopped recording sooner than he was supposed to.  He never audibly noted why he turned off the camera.  He only recorded his interaction with John, but not Jane.  He did not record the transportation of Jane to jail.  The video came in three disks.  It was clear that the officer wanted John to rat on Jane once he realized Jane was sober and John was not.  It was clear that the officer chose not to record the entire law enforcement activity and that he therefore tampered with evidence.

Ultimately, the Body Camera video helped me win my motion to suppress by establishing that my client was sober and there were no affirmative links.  The judge disagreed that my client was detained, but body camera video enabled me to lay an accurate record for appeal.  I would have loved to have heard what the jurors thought about the way in which the body camera was used, but I am more than happy to get a victory before that point.

We, as lawyers, need to use Body Camera footage to our advantage in every case possible.  More often than not, body camera footage isn’t going to show that an officer killed someone.  But in the same token, body camera footage will show that a cop lied in his offense report or that he violated the defendant’s Fourth Amendment rights to be free from unreasonable searches and seizures, or that he treated your client like trash. Take the time to carefully review your body camera footage.  This technology will help us identify the bad cops, get more dismissals, win more motions to suppress, and hear more not guilty verdicts.

The Ballad of Marijuana Defendant

The Dope Defense Attorney

This case has become unreal.  Just unreal. My client was charged with possession of marijuana.  I don't want to give away too much here because I know the prosecutor, who I believe to be lovely and reasonable in her soul, has at the very least looked up body cameras in the local news.  In fact, I think she was kind of impressed that I was quoted in the Houston Chronicle about this particular case. 

Note:  The Pic Is Not Me Or My Client

Credit where credit is due.  She researched the matter, and dare I say me (although I doubt it), and then tried to get any reference to the article excluded from trial through a motion in limine.  

So, just why has this case become unreal.  Harris County Court 14 works in a peculiar way.  Clients only have three or four court dates, spread out over about 6-9 months before their first trial setting.   Personally, I like this set up.  Your client doesn't get pointlessly dragged into court, and I don't find going to court every month for the same case a useful exercise for attorneys either.  In theory, there should be more cases being dismissed in Court 14, and also more cases going to trial due to the scheduling.  The problem is that cases are not actually being dismissed at the rate they should be.

Well I can tell you what, a whole ton of cases are set for trial in that Honorable Court everyday. While I'm not important enough for court staff to read my blog, I still take a risk by saying that showing up for trial TEN TIMES is inexcusable. It is a war of attrition to get the defendant to plead guilty by tearing away at their finances, will power, and soul.  

My client is innocent and she will not plead guilty for something she did not do.  Hell, there are defendants who may be guilty that want to go to trial, but feel like the government can't make there case, and that is their constitutional right.

Back to the topic.  At my client's 9th trial setting, yes ninth, my client was told to return the next day (third day in a row), only if the judge called her case to trial.  In other words, she didn't have to be at court like the rest of the defendants.  So, I showed up in her stead. Judge Fields, who is truly a likable and well thought judge, calls my client's case to trial.

Ok, so I don't announce that I am ready.  I don't have witnesses and I don't have my co-counsel with me at that exact moment.  The was kind enough to say,  "Counselor, you are great.  You know what you are doing and know the facts of your case very well.  You don't need co-counsel.  You don't even need to go get your file."  As flattering as his statement may be,  commercial pilots don't fly solo, and neither do I.  He reaffirms that my case is going to trial, so I run outside and call my client.   Like the rest of Houston, she had trouble getting downtown in the tail end of a tropical storm.  Too much trouble.

Meanwhile, we have a GREAT jury panel.  I am talking about young and diverse.  It was a beautiful thing.  Two hours later, the judge tells the jury to go home. Judge Fields even proclaimed he had never seen such a good looking jury for the defense and jokingly said he wanted to take a picture with them. The times, they are a changing.  However, My client finally arrives and Judge Fields graciously and justly did not revoke my client's bond because she had been on time the previous 9 trial settings. 

I was so ready to try this case.  Witnesses would have been great, but I won a good couple of battles during pretrial motions, not least including getting a spoliation instruction granted, should I present evidence warranting the instruction, which was likely to happen.  I saw Mike DeGuerin in the elevator and got some words of advice from that legend, and I had some great attorney''s helping me at trial.  The stars were aligning.  It's a shame my client wasn't on time.  

Lesson learned, don't give your client's the chance to mess things up, because they will, and at the worse of times.

Unlawful Carrying Of A Weapon Motion To Suppress Post-Rodriguez

I was almost there.  I was so close that I could feel it.  I could touch it.  I could see it.  I could see the Montgomery County Judge saying, "Motion To Suppress Granted," and the State of Texas saying "Judge we will file this Motion to Dismiss."  However, it wasn't to be.  It wasn't to be because we worked the case us so good that the Montgomery County prosecutor dismissed both cases in exchange for my client forfeiting his handgun.

For the record, I would not have taken that deal under the circumstances, that's how confident I was in the facts of the case, my legal research, and that I would not let the government steal my gun (if I had one).  However, as a client-centered lawyer, my job, my obligation is to inform my clients about the procedure, the potential courses of action, and the potential consequences of each course of action.  In this case, the dismissals were all he wanted.

So, let's rewind to May of 2014, in a little speed-trap of a town called Patton Village.  My client was driving a car his mother bought him for graduation north on highway 59 to visit his mother in Mississippi.  He was traveling in the left lane, allegedly, without passing other vehicles.  A Patton Village Cop followed him for, according to the cop, three miles.  The cop turns on his dashboard camera as the cars approach the Liberty County Line (where liberty goes to die).  In the video, you can see that my client's car is getting further from the white car in the right hand lane, and closer to the semi in front of him, thus appearing to be passing traffic and nullifying the reason for the stop.

The officer turns on his overhead emergency lights and pulls my client over.  My client turns on his signal and makes safe lane changes until he comes to a safe stop on the shoulder, at which point he turns on his hazard lights.  The Patton Village Cop calls in my client's Mississippi license plate number, exits his vehicle and goes to the driver door.  The cop talks to my African American client for a full minute with his window down.  My client gives the cop his license, insurance and registration, just as he's supposed to, and the cop orders my client out of the car.  The cop waits for a another cop to arrive (not in the offense report as it should be) then returns to the squad car and runs my client's driver license. 

About 15 minutes later, the cop learns that there are no arrest warrants for my client, he has no criminal history, he has only been pulled over once before, and that his car is coming back as stolen.  The cop places my client under arrest and puts him in the back of the squad car.  My client tells the officer that there must be a mistake, I mean, after all, the his registration and insurance are for that car, they have his name on it along with his mother's name, who shares the same last name and is registered to her address in Mississippi which is the address on my client's driver's license.

The officer agrees to call my client's mother.  To be fair, he could have been a real big jerk and not done that, but on the other side of the token, the evidence before him was that the car was not stolen.  His story made sense.  So, the cop calls my client's mother who answers.  The cop says hes in a stolen car.  She asks what he's driving.  She cuts him off,  "is it a black 2006 chevy hhr?"  Indeed it was.  She assures the cop that the car was not stolen.  The cop sayd he would let her son go in a few moments.

The cop then tells my client he is letting him go, but requests consent to search his vehicle.  My client exercises his Fourth Amendment right to deny the officer consent to search.  At this point, under a new Supreme Court Case called Rodriguez v. United States, the cop had a duty to let my client go.  Instead, the cop called a K9 to search the outside of my client's car.  The K9 arrives 15 minutes later (after more than an hour had already passed where the officer could have called the K9, or actually just searched the car since he had probable cause to believe a crime had been committed).  The K9 made two hits, and the cops recovered some weed and pistol.

We argued that the fruit of the search, were fruits of the poisonous tree, and must be suppressed.  In layman's terms, the cops illegally searched my client's car.

So quick rundown on searches and seizures.  A cop can search a person or a place if there is a valid search warrant.  IF there is not a valid search warrant, the search is presumed to be unlawful.  An officer can search for contraband if he has probable cause."  Probable cause is exists where facts and circumstances are sufficiently strong to justify a prudent and cautious person's belief that certain facts (that a person committed a crime) are probably true.  Probable cause to search exists if the cop sees the person commit the crime, the contraband is in plain view, the officer's smells the weed... so on and so forth.

Here, the cop did not see and dope in plain view. The law holds that an officer must diligently pursue all reasonable avenues to confirm or dispel a belief, and that they must execute the ordinary tasks of a traffic stop in a diligent manner.  So, an officer may not prolong a traffic stop to call a dog or conduct a search without probable cause. 

What are the ordinary tasks of a traffic stop, you may ask?  Investigating and issuing a ticket, running a warrant check to see if the driver if the driver is wanted for arrest, and do a license plate check to see if the car is stolen.  In this case, the officer did a reasonable diligent job in doing the above, and he did a pretty great job at investigating once the car was stolen.  However, once he determined the car was stolen, he did not have the right to detain my client any longer, unless he had developed a reasonable suspicion to believe my client was engaged in or was about to be engaged in criminal activity. FYI, all you officers out there, a HUNCH IS NOT ENOUGH TO DETAIN A MOTORIST!!!  

In this case, the officer did not have an articulable  reasonable suspicion to continue detaining my client and it was his right, as it is yours, dear reader, to DENY CONSENT TO SEARCH his vehicle.  My client did not make incriminating statement, there was nothing in plain view, the car was not stolen, he was not a known drug dealer, he did not come from a known drug house, he was not intoxicated, his story made sense, he was calm, cooperative, honest, did not attempt to flee... I could continue, but you get the point.

There are a litany of cases that define what a cop can and cannot do in regard to a traffic stop.  Rodriguez is great because it affirms absent a reasonable suspicion, the extension of a traffic stop a.k.a. prolonged detention is an unreasonable seizure, and that calling a K9 is not an ordinary or traditional aspect of a traffic stop.

If you have been arrested you need to hire a lawyer who loves to investigate unlawful searches and seizures.  You need a lawyer who can read an offense report and smell something fishy.  You need a lawyer who enjoys researching to protect your liberties.  

Appeals Filed and Trials Postponed

What an exhausting week!

First, I was set for a possession of marijuana trial in Harris County on 4/20.  I was so eager to try that case and hopefully get a NOT GUILTY on the marijauna holiday, but it wasn't to be.  For the second time.  The first time the case was set for trial it was reset because the district attorney thought that the day of trial would be a good time to turn over BRADY bodycam video.  I am sure glass I did not push forward without it ;).

This time, the case was reset because the judge wanted to get a two day trial out of the way, whereas mine would only take one day  Although I was disappointed to not try this case, it gave me time to finish up an appeal.  My appeal client was sentenced to life in prison for aggravated sexual assault of a child, which is the legal term for "rape" in Texas.  You'd think that a trial for this type of charge might take quite a while, but this trial only lasted two days and they sent my guy to the slammer for the long haul.

I was not the trial lawyer.  The trial lawyer was a guy who is infamous for being found ineffective multiple times, yet for some reason, the courts keep appointing this guy to cases (in my opinion it is because they way certain defendants locked up for life, and this guy's representation almost guarantees it).  I don't want to get into the details of the case, but I'll tell you what's important.

The complainant (what you might naturally as the victim) claimed my client diddled her.  The complainant also claimed that three boys raped her at a party in another county that were no-billed. Mind you, a prosecutor could indict a ham sandwich.  The prosecutors sent the trial lawyer a motion in limine that indicated the girl made accusations in the other county. (P.S.  This crappy notice is going to be a huge issue and a potential Brady violation if there is a writ filed.)  The trial lawyer didn't read the notice/motion and didn't request a continuance to investigate the allegations to see if they were false, which would be necessary to cross-examine/impeach the complainant at trial.

You might not think her prior false allegations of abuse are all that important, but they are huge, and particularly huge in this case.  Why?  Because the complainant claimed my client penetrated her, and touched her elsewhere.  Well, the nurse recovered my client's DNA everywhere the complainant said my client touched her, except in her vagina, AND the nurse testified that if he really did penetrate her vagina, his DNA should be there under the circumstances.  PHEW!  It's uncomfortable talking about this.  I don't like sex offenders and pedophiles, but if I'm not protecting their rights, your rights wont be protected.

So the point here is that if my client did not penetrate the girl, he is not guilty of aggravated sexual assault, which brings me to my second point, the court committed error by not including a jury charge for the lesser offense of indecency with a child.  

I don't know if my client is guilty, and it wouldn't effect my representation if I did or he was.  I never in a million years thought I would be an appellate lawyer in Texas, but it can be fun at times.  Now it is time to wait and see what happens.

The One Witness Rule -- What a Waste of Time!

I spent this morning reading the voir dire section of a record for appeal.  My client was charged of aggravated sexual assault of a child.  I did not represent him at trial.  He was sentenced to life in prison.   Voir dire is the phase of trial where the jury is selected from a larger pool of potential jurors. During voir dire, the judge will speak and as questions, as well as the government attorney and defense attorney. 

In every trial I have watched or participated in, and in every record I have read, I see the most annoying waste of time ever during voir dire.  The big waste of time goes something like this:

Government:  Ok folks, so, let's just say, I don't think it will happen but let's just say there was only one witness. Right? Ok? Just one witness.  And let's say this witness testified.  And let's just say she was the only witness to testify.  And let's just say you believed her beyond a reasonable doubt.  Here, we go, here we go, this is the question.  And remember, voir dire is my only chance to speak to you and in French it means "to speak the truth." So, if we put on only one witness, and you believed that witness beyond a reasonable doubt, could you convict the defendant?  COULD YOU CONVICT THE DEFENDANT BASED ON THE TESTIMONY OF ONE WITNESS WHO YOU BELIEVED BEYOND A REASONABLE DOUBT?

The prosecutor will then go person by person or row to figure out who is not capable of doing this.

This is the biggest waste of time, ever, in a court room.  The government lawyers knows darn well whether he intends to present one witness.  Now, these line of voir dire questioning is especially common in sex cases.  As one judge explained it, the one witness rule exists because there is usually only two witnesses to a sex crime: the complainant and the defendant.  I would like to note, however, that his interpretation of "the legislature's intent" is wrong.  There is a different between witnesses and eyewitnesses.  In that case, why don't they call it the "one eyewitness rule?"  That may take care of some of the confusion.

But why waste time?  Why waste the jury's time?  Why make a frivolous claim?  I suppose the government lawyers are looking for people actually want good, reliable, independent evidence so that they can exercise a strike on those individuals.  

But hey, it could work out for us.  Hopefully, some juror, subconsciously is thinking, "Why the hell did that government lawyer waste my time and ask me a stupid, question when he knew darn well there was going to be more than one witness?  Ef him, I don't trust him."

(Steps down off soap box.)  Ladies and gentlemen of the audience, thank you.   Next time a government lawyer asks you this question, go Socratic on his ass and ask why he is asking a pointless question and wasting your time. 

Setting a Case For Trial In Harris County Criminal Courts

They will do just about anything to keep a lawyer from setting his case for trial, and I love it.  I have a brave client.  He was charged with possession of marijauna and the State gave him a nice offer, a.k.a. a conviction, of time served.  That means he would plea and his case would be over with, except for a six month license suspension.  My client was having none of it.  If they want to prove that he is guilty, go ahead and make them prove it, he says.  The ADA, takes the case to her boss makes her enhance the case.  Why was this done?  Most likely to dissuade my client from making the ADA work and try a "stupid marijuana case."  Guess what?  We agree, it is stupid.  So then we have to approach the judge to get a trial setting.  This judge doesn't believe that me, in my youth, has informed my client of the risks of trial.  She expresses concern that I have a trial fee and that my bar card is at risk.  I mean, really, what business does she have being concerned with my financial circumstances and the structure of my contract?  She was very nice, but also "paternalistic."  I suppose part of a judges duty is to encourage compromise; to encourage cases to settle.  However, I feel like that has a place more so in the civil courthouse than the criminal courthouse.  I said at least three times that my client just wants his story heard by six members of the community.  This is the second case I tried to set for trial in two weeks, and each time the judge urges me to urge my client to plea.  I am glad the judge told me she never was a defense lawyer, but that just begs the question: how can any judge be neutral who hasn't worked both sides of the docket?  She didn't seem to grasp that my client made up my mind to exercise his right to trial, and that he does not care that it will take time out of the court's more important time, or as the property folks say, highest and best use.  If a DA wants a convictions, make them work for it.