Author Archives: admin

On judicial overreach and those “so called Judges.”

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. (163)

It is emphatically the province and duty of the judicial department to say what the law is. (177)

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. (179)

Chief Justice John Marshall. Marbury v. Madison, 5 U.S. 137 (1803)

The Clock and the Search Warrant

“Most were corrupted by the lure of the underworld. They thought they could check their morality at the door – go out and lie, cheat, and steal – then come back and retrieve it. But you can’t.”  (Agent Martin Pera, Federal Bureau of Narcotics, 1948 to 1963), from “The Strength of the Wolf” by Douglas Valentine.

We need to revise a part of our search warrant rules in Texas. I consider this an issue in criminal justice reform that the legislature needs to address.

A set of rules of inference must be internally consistent.  If they are not, then they can lead to contradictory results or arguments that are not valid arguments.

All search warrants must have a time limit.  Particularly in the case of warrants for drugs or controlled substances.  People do drugs and/or they sell them.  They might be all gone by the time you get there. The target of a warrant might get a tip of an impending raid and move the evidence the warrant seeks to find to another location.  As well, someone might pick up and move for an entirely different reason.  Officers could come crashing in the door of the wrong person, someone entirely innocent of any misconduct and not in possession of any contraband.  Or they might find themselves walking into an empty, vacated residence.  In either scenario, the neighbors would certainly be alarmed and frightened. It is commonly thought that the lifespan of a search warrant in Texas is three (3) days.  Lets take that  assumption and see if we can derive a contradiction to show that the proposition is false.

Article 18.06, of the Texas Code of Criminal Procedure states very clearly that:
…a search warrant must be executed within three days from the time of its issuance.

Article 18.07 clarifies that the period allowed for the execution of a typical search warrant is “exclusive of the day of its issuance and of the day of its execution” and is “three whole days.”

Excluding the day or date of issue makes some sense in light of the fact that the warrant is good for “three whole days.”
Although the magistrate is ordered to endorse the date and hour the warrant is issued, when does the clock actually start running if the day the warrant is issued does not count?
The code offers little insight on this question.

It is the “exclusive of the day of execution” part that makes the rules fall apart. If you include the day of execution then the three day rule might make more sense… but the day of execution is said to be excluded.  Stating a warrant has to be executed withing three days and then not counting the day the door actually gets kicked in is absurd.
Because in reality when a magistrate issues a warrant that rule means that the police actually have four (4) days to execute it.  And that obviously contradicts the rule that a warrant must be executed in three days.

More Reason’s to Turn Off Your Smartphone

November 2014 was an exceptional month on the government surveillance front.  Some new acronyms and codewords entered the lexicon of discussion such as IMSI catcher, Dirtbox, and Stingray.

The first time I heard the term IMSI catcher was actually in late October.  This was in a segment by Martin Kaste on the October 22nd broadcast of All things Considered.  Kaste was speaking with an ACLU attorney named Nate Freed Wessler.  IMSI is an acronym for International Mobile Subscriber Identity. So what’s an IMSI catcher?  The idea is this: a transciever is designed to mimic a local cellphone tower.  Essentially, it spoofs all phones within its range into thinking its the nearest cell tower and so the phones exchange data with it, such as their location. What Wessler had tried to do was use Florida’s public records act to get information about what a police department in Sarasota was doing with their IMSI catchers.  Wessler’s tale ended with the U.S. Marshall’s Service seizing the collected records before they could be turned over.

This red-lined my curiosity.  I emailed the article to several colleagues, some of whom were dismayed to find an attachment in their email marked “IMSI Catcher.”  I had to find out more about this topic and began researching it in my spare time.  Turns out that Devlin Barrett of the Wall Street Journal was way ahead of me.  His story bore the ominous title “American’s Cellphones Targeted in Secret U.S. Spy Program.” It was published on November 13th and can be found here.  I heard about it the following day, again on NPR, this time in a segment by Audie Corniche.  She did a brief interview with Devlin.  When I realized what they were talking about, I couldn’t believe my ears. The U.S. Marshall’s Service had installed very powerful IMSI catchers in Cessna airplanes and were using them in the course of their investigations. This activity could collect data from potentially thousands of phones and raised a number of disturbing questions.  What do they do with the data of the people they aren’t looking for?  Where are the warrants and the court orders authorizing this dragnet?

The device deployed by the Marshall’s is informally called a “Dirtbox” and derived from the acronym of the manufacturer DRT or Digital Receiver Technology.  That company is now a subsidiary of Boeing, an operation that has produced some of the finest military surveillance aircraft.

In contrast, a Stingray is a device with a shorter range that operates on the ground.  It essentially performs the same function on a smaller scale.  Turns out our own Houston Police Department acquired one or more of these devices recently and uses them in investigations.  This was discovered by KPRC investigative reporter Jace Arnold and published on November 19th.  Chief Charles McClelland assured Arnold that HPD always gets judicial approval for its surveillance activity.  My question is, have they ever been compelled to disclose this kind of surveillance to a particular defendant’s lawyer?

It seems to me the next logical step would be to place a DRT, or even a Stingray, into a drone.  If I’ve thought of that sitting here at my desk, I’m sure someone else already has.

AWACS 1988“Skyking, Skyking…..”  The majestic Boeing E-3 Sentry.

The Aim of Philosophy

“The aim of philosophy, abstractly formulated, is to understand how things, in the broadest possible sense of the term, hang together, in the broadest possible sense of the term.”

Professor Wilfred Sellars, Philosophy and the Scientific Image of Man, Published in Frontiers of Science and Philosophy, edited by Robert Colodny (Pittsburgh: University of Pittsburgh Press, 1962): 35-78. Reprinted in Science, Perception and Reality (1963). 

Stay tuned, more to follow…

How to properly NOT talk to the police (part 1)

“I’m not talking. That’s what I’ve got to say.” The Yardbirds, 1965

“Deputy Dan has no friends.” The Firesign Theater, 1970.

“No good ever came of talking to the police.” Mark W. Bennett, 2009.

As a lawyer this is one of the topics that I am most often asked questions about.

Whether you are in custody, or detained, or restrained, or none of the above, you do not have to talk to the police or answer any questions beyond what the law requires. The key is knowing what to do in each situation, what to say and what not to say, and how to recognize which situation you are in.

Under present Texas law: “A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.”  [Texas Penal Code, Section 38.02(a)].

But wait there is more. “A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:  (1) lawfully arrested the person; (2) lawfully detained the person; or (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense. [Texas Penal Code, Section 38.02(b)].

And there is another important consideration. “In this chapter:
(1) “Custody” means:
(A) under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court of this state or another state of the United States; or (B) under restraint by an agent or employee of a facility that is operated by or under contract with the United States and that confines persons arrested for, charged with, or convicted of criminal offenses.
[Texas Penal Code, Section 38.01]

What actually happens out on the street though is not always so clearly defined

Police and Citizen Encounters

Let us turn to Justice Baird’s opinion in Francis v. State (922 SW 2d 176 at 178, Tex. Cr.. App., 1996) for a concise exposition.

“There are three recognized categories of interaction between the police and citizens: encounters, investigative detentions and arrests.
The Fourth Amendment is not implicated in every interaction between police officers and citizens. Terry, 392 U.S. 1, 88 S.Ct. 1868. An encounter is a friendly exchange of pleasantries or mutually useful information. Id., at 13, 88 S.Ct. at 1875-76. “As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In an encounter police are not required to possess any particular level of suspicion because citizens are under no compulsion to remain. Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Cr.App.1988); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Cr.App.1986). However, in order for investigative detentions and arrests to be legal, particular levels of suspicion are required.
Furthermore:  “The controlling distinction between an encounter and either an investigative detention or an arrest is whether there has been a seizure. A seizure occurs when a reasonable person would believe he or she was not free to leave, and whether that person has actually yielded to the officer’s show of authority. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Cr.App.1995) (plurality opinion). In short, interaction without a seizure is an encounter.”

So how do you find out what sort of situation you are in?

Ask the officer? The pitfall here is that the police are not obligated to tell you the truth. That’s right. In fact, police officers routinely lie to suspects in order to gain information, admissions, and confessions. Remember that “Deputy Dan has no friends.” No matter how friendly he may seem or what he may say.

You can technically be in custody although you have not yet been formally arrested. Ask yourself this question: Would a reasonable person in these circumstances feel free to leave? Do you feel free to leave? Some have suggested asking the officer “Am I being detained?” While that’s not too bad, bear in mind that the subjective intent of the officer plays no role in the analysis of whether or not you are in custody for Miranda(1) or 38.22(2) purposes. My suggestion is to cut to the chase and simply ask the officer “Am I free to leave?” And if he or she says “NO,” then tell them you refuse to answer any more questions and STOP TALKING.


1. Miranda v. Arizona, 384 US 436, 1966

2. Chapter 38, Article 38.22, Texas Code of Criminal Procedure

Nation’s Capitol Loosens Up On Weed

Yes, it sounds like a headline from the Onion, but it is true.  I first found the story on the BBC, so it gained international attention.  That story can be found here, (while the link remains active).  By the way, they refer to marijuana as cannabis in the UK and always have.  Now, if you are found in possession of less than an ounce or 28 grams of weed in Washington D.C., you will be issued a civil citation and fined a whopping 25 bucks.  Nonetheless, you can still get jail time for selling marijuana or smoking it in public; which in contrast does seem a bit silly.

Back in 2007 here in Texas, our legislature decided that police officers could have the option of issuing a citation to persons found in possession of less than 2 ounces of marijuana. This was in lieu of arresting them and hauling them to jail.  I can say that since that time I have not received a single call from someone who was issued a citation for possession of marijuana, but I have handled numerous cases for people who were arrested with small amounts of the stuff. Most of the time this occurred incident to a routine traffic stop for something like a brake light out, or an expired registration sticker. If a police officer in Texas (and just about anywhere else) smells the distinctive odor that he or she knows from their training and experience to be that of marijuana, they are going to start asking questions, and they can also search your car for evidence at that point. So, two important points can be derived from this. 1) Do not smoke weed in your car. 2) Do not drive around with expired tags, or any obvious maintenance issues, like faulty lights. or a noisy exhaust. If you’re going to smoke, do that in your own backyard. You’ll be glad you did.


“Where are the Snowdens of yesteryear?”
Capt. John Yossarian

When I read the opening paragraphs of the first news story from the New York Times that surfaced on Google news about Judge Richard J. Leon’s opinon in Klayman et al. v. Obama, et al., “Federal Judge Rules Against NSA Phone Data Program” I felt vindicated and relieved.

When the Edward Snowden/NSA leak story first appeared in the Guardian I wrote a short piece about the classified FISA Court opinion that was published there and then re-posted that document. I did so in the event that might disappear from the Guardian site without notice for a number of reasons. I believed that this was a document that people needed to see and it should receive the widest possible circulation. Although no longer secret, the opinion was technically still classified. What was happening here was clearly illegal in my estimation.  I took the view that to classify and hide what is unlawful is also an unlawful act. I saw the FISC Order that allowed the bulk collection of phone records as being closely analagous to a general warrant.

As a result of publicly advocating this position early in the game, I was sure I was going to be labeled a “person of interest” who could now look forwad to being “selected for special screening” at the airport and having some part of my electronic life hacked as well.

Now finally there was not just another lawyer or concerned citizen who agreed with me, there was a Federal District judge on the D.C. Circuit who had issued a written opinion.  And so I went in search of a copy of the opinion to download and read.  What did it actually say?

Klayman I, as I will refer to it, is a thorough, scholarly, and well referenced opinion.  After reading it one feels that there is not much left to be said as to the Fourth Amendment questions raised by the topic of controversy.  That topic is, the NSA’s “Bulk Telephony Metadata Program.”
(Klayman et al. v. Obama et al., Civil Action No. 13-0851,filed 12/16/2013,
The Court finds that the Plaintifff’s have demonstrated a strong likelihood of success on the mertits of their Fourth Amendment claim.  The Plaintiffs are, in the Amended Complaint, Larry Klayman and Charles and Mary Ann Strange, both on behalf of themselves and “others similarly situated,” which would seem to include every Verizon subscriber for at least the last 5 years.  (In fact, by extrapolation, it could include everyone who was a cellphone subscriber during that time and up to the present.)

The Plaintiff’s constitutional claims are, generally speaking, that the Government, through the NSA’s Bulk Telephony Metadata Program, has violated their rights under the First, Fourth and Fifth Amendments to the Constitution.  The primary focus of the opinion is on the Fourth Amendment issues raised by the Program, because as noted above, the court finds that the Fourth Amendment claims are those most likely to succeed on the merits.  (Klayman I at 35). In addition, the plaintiff’s moved for a preliminary injuction to stop the Government from collecting and analyzing their particular phone records while the case is pending before the Court.

The headings of the opinion provide a clear roadmap of the questions considered by the Court. As a threshold issue, the plaintiff’s must have standing to challenge aspects of the Bulk Telephony Metadata Program.  Without standing, the inquiry would end there. (Clapper v. Amnesty Int’l USA 133 S. Ct. 1138 (2013))  “Accordingly, the plaintiff’s meet the standing requirements set forth in Clapper as they can demonstrate that the NSA has collected and analyzed their telephony metadata and will continue to do operate the program consistent with FISC opinions and orders.” (Klayman I at 42)

Having found the plaintiff’s have standing, the next question is whether the NSA’s collection and analysis violates the plaintiff’s Fourth Amendment rights.  The first question to be considered in that inquiry is whether or not a search has occurred.  If not, then once again the inquiry would end there.  If a Fourth Amendment search has occurred then the last question is whether the search was reasonable or unreasonable.  A reasonable search will be found lawful whereas an unreasonable search will not.  The Court frames the question in the following way at page 43 of the opinion.
“…whether plaintiff’s have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries analyzes and investigates that data without prior judicial approval of the investigative targets. (Klayman I, 43)

The Court ultimately finds that’s the NSA’s collection and analysis of metadata does constitute a search.  After very thorough consideration, the Court finds that “plaintiff’s have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation.” (Klayman I, 58 – 59.); and furthermore “…plaintiff’s have a substantial liklihood of showing that their privacy interests outweigh the Governments interests in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.” (Klayman I, 62).

The end result for now was that the Court granted the plaintiff’s Motion for a Preliminary Injunction but stayed that Order pending appeal “in light of the significant national security interests at stake and the novelty of the constitutional issues.” (Klayman, 6)

That’s basically an outline of the Fourth Amendment aspects of Judge Leon’s opinion. The full text of the opinion in Klayman et al., 0851 is a fascinating read that I highly recommend.

“Car 54, Where are you?”


That’s a good question.  What the defense usually wants to know is: “What was Car 54’s location at a certain time on the night the defendant was arrested?”  Fortunately, there is a way to  find this out.  Most modern police prowlers are equipped with electronics that report their location to a central command center.  (For example, the Houston Emergency Center.)

Global Positioning System (GPS) satellites are utilized to keep dispatchers apprised of the current location of law enforcement and emergency vehicles. This kind of system is also known by the acronym “AVL” or automatic vehicle location. Such a system serves several purposes. It aids the dispatcher in responding to calls because they can see in real time who is close to a particular area or incident. It is an aid to managing events as well as protecting the safety of personnel in the field. In the sense of safety, its not unlike radar for air traffic controllers. If you disappear from the screen, its likely that something is very wrong.This system also serves other purposes unstated in the official description. It allows resourceful lawyers and investigators to reconstruct who was where after the fact. These location records have been used in that manner by both defense lawyers and prosecutors.  It can provide a certain degree of accountability and oversight of the activity of police officers.

This is all fine and well. The fact that such records exist is of no consequence unless you can obtain them. To their great credit, the Houston Emergency Center will timely respond to requests for AVL records whether through a Public Information Act request or a subpoena.

Harris County however is another matter. With respect to the County it seems that we have is another collision of secrecy vs. accountability and transparency.
County authorities have generally stonewalled the efforts of lawyers and investigators to obtain AVL data. We have tried multiple Public Information requests as well as subpoenas to get at them. At this point, I am not certain who the custodian of these records is or where the command and control center that uses them is located. The other unknown is what is the retention period for these records? (Ideally it would be indefinite if there is a pending criminal investigation.)

Keep in mind these are public safety records generated by a system built with public funds that monitors public servants.  Below is a recent and interesting news story by KTRK reporter Ted Oberg on this topic:

“GPS units in law enforcement vehicles: What some lawmen, lawmakers want to keep you from seeing.”

I would like to thank Mark Bennett for bringing this particular story to my attention. Mark has been very actively involved in the effort to obtain AVL records from Harris County.