News
 
Varghese Summersett

For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

  1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
  2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
  3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
  4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
  5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

  1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
  2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
  3. Magistration takes place three times a day, and not around the clock.
  4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Tim Curry Justice Center

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS in Texas

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

ORAS Assessment

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

  • Income
  • Expenses
  • Employment
  • Transportation
  • How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

  • 90 days on a felony without an indictment
  • 30 days on a Class A misdemeanor
  • 15 days on a Class B misdemeanor
  • 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

The post Tarrant County Central Magistration appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

  1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
  2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
  3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
  4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
  5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

  1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
  2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
  3. Magistration takes place three times a day, and not around the clock.
  4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Tim Curry Justice Center

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS in Texas

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

ORAS Assessment

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

  • Income
  • Expenses
  • Employment
  • Transportation
  • How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

  • 90 days on a felony without an indictment
  • 30 days on a Class A misdemeanor
  • 15 days on a Class B misdemeanor
  • 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

The post Tarrant County Magistration | Arraignment | How Long to Make Bond? appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

???

In a recent 5-4 decision, the Supreme Court held that police generally need a search warrant to gain access to your cellphone’s location information. Specifically, in Carpenter v. United States, the Court noted allowing the police to access minute-to-minute location information is the type of surveillance the Constitution’s framers sought to protect against without a search warrant. The Court went on to say that giving police this tracking information without a warrant would be akin to making someone wear an ankle-monitor without a judge’s order.

The Fourth Amendment and Cell Site Location Information

The Fourth Amendment protects your property interests and provides for some privacy protections. The text of this amendment states that you are protected from unreasonable searches and seizures, and that you, your home, your papers, and your things are secure and protected from warrantless search. Furthermore, warrants are to be issued only when probable cause is found, supported either by oath or other affirmation, which includes detail on what is to be searched, where it will be searched, and the person or items that need to be seized.

Probable cause is present for a crime when your actions (facts and circumstances) lead to a reasonable suspicion and need for further information. As the Court reiterated, warrants need “some quantum of individualized suspicion.” U.S. v. Martinez-Fuerte, 428 U.S. 543, 560–561 (1976).

The point of the Fourth Amendment is to keep the government from unreasonably intruding into your life and your freedom. This being said, there are exceptions (consent to the search, imminent danger, exigent circumstances, a search incident to arrest, items in plain view, etc. to name a few) to Fourth Amendment protections, so long as the government is doing the searching and so long as the search is reasonable.

Cell Phone Location Data

Cell phones communicate with cell sites, which can be found at cellphone towers, some light-posts, tops of buildings, and many other areas. When you move with your cell phone, the phone connects to these cell sites and when you place a call or send a text, the phone time stamps the activity which can be stored. This time-stamped information is called cell-site location information or CSLI. Cell site location information is often stored by service providers for years.

There are over 300,000 cell sites in the United States. Your cellphone provider takes the information relayed to cell sites and stores the information to improve their service and coverage. Today, CSLI includes location information that is fairly accurate.

cell site data

Carpenter v. United States (2018)

After a string of robberies in 2010 and 2011, police caught several suspects. Ironically, the robberies were for cell phones being taken from stores like Radio Shack and T-Mobile.  One of them confessed to a series of nine robberies and provided details about their leader, Timothy Carpenter. The police then requested an order for 127 days of tracking information from Carpenter’s cellphone provider. Using all the data received, there were 12,898 data points regarding locations that followed Carpenter’s movements. The location on Carpenter’s phone closely matched the places where robberies occurred and this location information was used as evidence in his conviction. Carpenter was convicted of multiple robbery counts and multiple counts of carrying a firearm during a federal, violent crime.

Carpenter appealed arguing that he was protected from a warrantless search of his cell phone records. Instead of getting a warrant, the police had obtained a court order using the Stored Communications Act (18 U. S. C. §2703(d)). This law allows phone companies to give your records to police if there were reasonable grounds to believe that the records needed would move a criminal investigation along. The standard was lower using this law than the requirements for a warrant, since police just needed specific and articulable facts that led to a reasonable belief that information requested would be related and important (relevant and material) to the investigation. The Stored Communications Act requires “specific and articulable facts showing there are reasonable grounds to believe” that electronic data being sought is relevant to an ongoing criminal investigation. The Stored Communications Act, however, did not require a showing of probable cause.

Carpenter argued obtaining his Cell Site Location Information amounted to a Fourth Amendment search. The Supreme Court focused on whether the third-party doctrine applied to cell site location information. The third-party doctrine provides that the Fourth Amendment is not implicated when the police obtain information revealed to third parties (like bank records and call records.)

Expect to see litigation involving cell site simulators to reach the Supreme Court.

What changes with Carpenter v. United States?

Before, police did not need a warrant for a lot of cellphone information because if you were sharing your information with a third party, like your cellphone provider, getting access, for example, to the numbers you called was not protected. However, the justices recognized in this decision how tied we are to our phones, and that being able to track a phone’s location when it is practically always in our pockets, would be a gross violation of our expectation of privacy without first obtaining a search warrant.

The Court found that the facts of this case put it between two areas of law: your expectation of privacy when it comes to your location and your movements versus your expectation of privacy when you voluntarily give your information over to third parties (i.e. your cellphone provider). This ruling distinguished previous case law, such as giving over records of numbers dialed or business records from location-related records. In previous cases, information sought was more limited. Here, location information is a “comprehensive record” that provides accurate details of where you have been. Additionally, the court analyzed the fact that cell phones can log your location without you actually using the phone other than turning it on. Because of these two important facts, the Court held that unless an exception to the warrant requirement applies, police generally need a warrant supported by probable cause to be able to access location records.

What does Carpenter v. United States cover?

Specifically, the decision covered location information (CSLI). Police need a search warrant to access this location information from your phone.

What does Carpenter v. United States exclude?

Case precedent involving financial, banking, and office-related records still holds. Furthermore, warrantless searches may be performed in cases of emergencies or in cases of threats to national security. The Court specifically stated that the decision was very narrow, and that the decision did not cover real time CSLI or “tower dumps,” which is the process of downloading information about all the devices connected to a specific cell site during a specific time frame.

Contact Us

Was your cell site location information obtained without a warrant in a criminal case? Give us a call at 817-203-2220.

Contact Us

?

?

?[/vc_column_text][/vc_column][/vc_row]??

?

The post Supreme Court: Warrant Required to Access Cell Site Location Information appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

Collins v. Virginia

In an 8-1 decision, the Supreme Court decided that the automobile exception does not allow police to enter the curtilage of home to search a parked vehicle. In Collins v. Virginia, the Supreme Court addressed a case where officers conducted a search of a parked vehicle that was believed to be stolen.

The Supreme Court discussed two important aspects of Fourth Amendment. The Court looked at both the automobile exception to obtaining a warrant and a protected area of the home called the curtilage.

The Fourth Amendment provides protection for you, your house, and your property against searches and seizures that are unreasonable. There are exceptions to this rule; the Automobile Exception being one of the most frequently used exceptions to the Fourth Amendment.

The Automobile Exception

The Automobile Exception allows officers to search a vehicle without a warrant if they have probable cause to believe the vehicle has contraband or some other evidence related to a crime.

automobile exception
What is the automobile exception to the Fourth Amendment?

The reasoning behind the Automobile Exception is that vehicles are easy to move. This allows officers to prevent evidence from disappearing or being relocated.

The officer can conduct a search of the vehicle without getting a warrant as long as they have probable cause for the search. For example, if an officer is walking by a vehicle parked on a street and sees through the window what looks like a bag of cocaine on the seat, the officer can conduct a search of the vehicle without getting a warrant.

Probable cause exists when facts and circumstances known to the police officer would lead a reasonable person to believe that a crime has been committed or that property connected to a crime is located in a particular place.

What is a curtilage?

The curtilage is the area directly adjacent to the home or surrounding the home. It is important for searches because both the curtilage and the home are protected by the Fourth Amendment, meaning an officer needs a warrant to search either of these two areas.

curtilage
What is curtilage for Fourth Amendment purposes?

There is a four-factor test for whether an area is a curtilage which was established in United States v. Dunn. Courts consider:

  1. How close the area is to the house;
  2. Whether or not the area is within an enclosure by or around the home;
  3. What the area is used for; and
  4. Whether or not the resident of the home took steps to protect the area from observation or access to passers-by, and what the steps where.

Curtilage and the Automobile Exception

In Collins, Officer McCall of the Albemarle County Police Department in Virginia saw a driver commit a traffic violation on an orange and black motorcycle, but the driver eluded the officer’s attempts to stop. Another officer in the same department, Officer Rhodes, later saw a driver on an orange and black motorcycle speeding, but also was unable to stop the vehicle.

The officers compared notes and determined that the driver of the bike was the same individual on both occasions. After investigating, the officers found out that bike was stolen and in possession of a person named Ryan Collins. The officers then found photos of Collins on Facebook, where he was posing with an orange and black motorcycle at a house, in a driveway.

The officers determined that the home belonged to Collins’ girlfriend and that Collins stayed at the house several nights a week.

Officer Rhodes arrived to check things out. From the street, Officer Rhodes saw what he believed was a motorcycle under a tarp, parked the same way the motorbike in the Facebook photo was parked.

Without obtaining a warrant, Officer Rhodes walked up to the motorcycle, entering the enclosed area of the driveway it was parked in. The officer lifted the tarp covering the bike and, seeing that it was an orange and black motorcycle, took photographs of the vehicle and ran the plate number, which came up stolen. After replacing the tarp, Officer Rhodes went back to his vehicle and waited for Collins to return home.

After Collins came home, Officer Rhodes knocked on the front door and asked to speak to Collins, who agreed to the exchange. After being asked some questions, Collins admitted he bought the motorcycle without title and was arrested.

Collins v. Virginia – Legislative History

The trial court convicted Collins, specifically for receiving stolen property, despite Collins’ argument that Officer Rhodes had trespassed the curtilage of the home and conducted an illegal search without a warrant. After the case went to trial, the Court of Appeals in Virginia held that the officer had probable cause to believe the motorcycle under the tarp was the same as the one that evaded arrest and that the search of the bike without warrant was lawful under the Fourth Amendment because there were numerous exigencies that justified the officer’s entry and lifting of the tarp. The Supreme Court of Virginia reasoned further that the automobile exception to the search warrant requirement applied and that, as a result, the search without warrant was valid. The U.S. Supreme Court took on this case to determine whether the search was valid.

Federal Precedent

In past cases, the Supreme Court held an automobile search could be reasonable even without a warrant. For example, the Court discussed a case where officers had probable cause to think a car they saw traveling down the road had illegal liquor in it. Carroll v. United States, 267 U. S. 132 (1925). The officer stopped the car to search it and found (and seized) the alcohol and arrested the people in the car. Other cases also illustrated that the mobility of vehicles and their ability to quickly move evidence out of the jurisdiction meant that cars had a lesser expectation of privacy than a home. California v. Carney, 471 U. S. 386, 390 (1985); Cady v. Dombrowski, 413 U. S. 433, 441 (1973).

Collins v. Virginia – The Supreme Court Decision

The Court addressed three separate arguments made by the prosecution in Collins v. Virginia.

First, the Court considered whether Virginia’s reliance on Scher v. United States was misplaced. In Scher, officers received a tip that a particular car would be transporting bootleg alcohol at a specific date and time. The officers observed a vehicle that matched the description of the tip turning into a garage within the curtilage of the home. When the driver got out of the car, an officer came up to him and told the driver that a tip had been received about illegal substances in the car. After the driver confirmed the alcohol was in the trunk, the officer opened the trunk and found the liquor—seizing both the contraband and the driver. While the officer lacked a search warrant, the court found the search reasonable.

Unlike the attended car in Scher, here, the motorcycle was unattended and fully parked within the curtilage when the officer found it. The Court reiterated that Scher did not create a blanket rule allowing an officer to enter the curtilage without a warrant. The Court described Scher to be a case more about hot pursuit, rather than the automobile exception. [Hot pursuit falls under the warrant exception of exigent circumstances in criminal procedure and allows a cop to chase a suspect into a private area/home, meaning forcible entry is okay, if the officer saw a felony being committed and had to chase the suspect to prevent the person from hiding or getting rid of evidence.]

Further, the Court discussed that the Scher decision was tied to different facts than the case currently in front of the court.

Second, the Court addressed Virginia’s use of Pennsylvania v. Labron, and found it was also misplaced. In Labron, the vehicle in question was parked in the front driveway of Labron’s father-in-law’s house. However, Labron did not have a property interest in the farmhouse or the driveway himself that he could claim was protected by the Fourth Amendment.

In Collins, the Court held that if the area is curtilage, a parking patio or carport that an officer can see into from the street is just as protected from trespass and warrantless search as a garage that is totally enclosed.

As the last main argument, the Court looked at Virginia’s proposal for a bright-line rule in a socio-economic context. Essentially, the Court reasoned that affording one constitutional protection to people who can afford a covered garage would give them more constitutional rights than those who lack the resources for a garage adjacent to their home. The Court concluded that individualized case-by-case consideration as to whether an area is curtilage provides equal protection regardless of resources.

Collins v. Virginia – In Summary

An officer may not enter the curtilage of a home to conduct a warrantless search for a vehicle that may be parked there, assuming the officer did not follow the vehicle in hot pursuit.

The post Collins v. Virgina Limits the Fourth Amendment Automobile Exception appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

Is a Prior DWI Conviction an Element of a DWI Misdemeanor Repetition Offense or is it a Punishment Issue?

The Court of Criminal Appeals has ruled that for purposes of misdemeanor DWIs, the fact that a person has been previously convicted of one DWI is an issue to be reserved for punishment and is not an element of the offense that can be brought before a jury in the guilt-innocence phase. The decision handed down by the Court of Criminal Appeals this week could mean that cases tried by the Tarrant County District Attorney’s Office over the last couple of years could be reversed.

The issue before the Court of Criminal Appeals was whether one prior DWI (which enhances the DWI from a Class B misdemeanor to a Class A misdemeanor) is a punishment enhancement or whether the existence of a prior DWI was an element of the offense. This question is crucially important to every DWI-Misdemeanor Repetition (sometimes called DWI-Second) case tried to a jury in the state because the answer tells us whether the jury gets to hear about the prior DWI while they are determining guilt-innocence.

Typically, juries in criminal cases do not hear about prior bad acts or convictions when they are determining whether a person is guilty or not guilty of an alleged offense. There are many exceptions to this rule, but the rule allows the jury to focus on the question of guilt at hand. Those other bad acts and prior convictions are generally reserved for the punishment phase of a trial so the jury can determine what the appropriate sentence is in light of all those facts. The answer from the Court of Criminal Appeals is that for misdemeanors, the fact that there is one prior DWI conviction is a punishment issue and not an element of the offense which can be brought before the jury unless the punishment phase is reached.

[This is different than when a person has two prior DWIs because a third DWI is a felony offense. To get to a felony court, those priors must be proven as a “jurisdictional element” so the jury does get to hear about the jurisdictional priors in a felony DWI.]

Intermediate Court on Prior DWI as an Element vs. Punishment Issue

Defendant Jose Olivia was charged by information with Driving While Intoxicated. The information contained two pertinent paragraphs: one regarding the DWI currently being tried, and a second paragraph alleging a prior DWI conviction. Olivia was found guilty on the current DWI charge without any mention of the prior DWI conviction to the jury.

At the punishment stage of the trial, the State provided the jury with evidence of the prior DWI conviction. The jury found the prior conviction to be true and assessed a punishment of 180 days in jail. The final judgment on Olivia’s current DWI was labeled “DWI 2ND,” indicating that Olivia was convicted of a Class A Misdemeanor DWI.

On appeal, the 14th Court of Appeals in Houston reversed the conviction, reasoning that “a fact that elevates the degree of an offense” is an element of the underlying offense and must be proven beyond a reasonable doubt before the punishment stage. Specifically, the court pointed to the fact that Texas Penal Code §49.09 does not expressly state an individual “shall be punished,” which is significant because “shall” indicates mandatory action required by law. Ultimately, the court determined that introducing the prior conviction at punishment was “legally insufficient” to enhance the current DWI from a Class B misdemeanor to a Class A misdemeanor.

Court of Criminal Appeals on Prior DWI as an Element vs. Punishment Issue

The Court of Criminal Appeals granted a Petition for Discretionary Review to settle the element vs. punishment question for the entire state because there was disagreement among the intermediate court as to whether the one prior DWI conviction is an element of a DWI Misdemeanor Repetition case, or whether it was an enhancement to be proven in guilt-innocence. Notably, both the position of both the prosecutor and the defense before the Court of Criminal Appeals was that the prior DWI was an element of the offense, but the Court of Criminal Appeals disagreed with both sides in rendering its decision.

The Court of Criminal Appeals distinguished between priors that are raised in felony cases at the guilt-innocence phase as elements of the offense because those are necessary for a felony district court to have jurisdiction over the case. In a misdemeanor, although the offense level increases from a Class B misdemeanor to a Class A misdemeanor, it would still be tried in a misdemeanor court. The issue is one of punishment, not of guilt-innocence.

Contact Us

If you’ve been charged with a DWI, give us a call. We will walk you through what to expect and how to mount your best defense. Call us at (817) 203-2220, or send us a message online:[/vc_column_text][/vc_column][/vc_row][vc_row remove_padding=”no-padding-vc-row”][vc_column]

The post Misdemeanor DWI Enhancement for Repeat Offense: Punishment Issue appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

What is the Criminal Statute of Limitations in Texas?

The statute of limitations for a criminal case refers to how long prosecutors have to bring a case against a person. The statute of limitations vary for different offenses and are laid out in Article 12 of the Code of Criminal Procedure. By setting statute of limitations, the legislature tries to balance the need for victims to come forward with ability of the accused to have evidence for which to defend themselves. The statute of limitations for a criminal case is the time in which a case must be filed before being barred from prosecution due to delay. In other words, if the state fails to bring a case against a suspect within a certain time period, it loses the right to prosecute the case.

How Long are the Criminal Statutes of Limitations in Texas?

The criminal statute of limitations in Texas varies, depending on the severity of the offense. The statute of limitations for misdemeanors is two years. Unless specified, it’s three years for felonies. However, it’s important to point out that many felonies do carry a specified statute of limitations, usually at five years, seven years or ten years. Some criminal statute of limitations are based on the age of the victim. For some offenses, such as murder and aggravated sexual assault of a child, there is no criminal statute of limitations at all.

A Chart of  Statute of Limitations in Texas

Generally, the statute of limitations for criminal cases in Texas can be found under Chapter 12 of the Code of Criminal Procedure. Here’s a look at the statue of limitations for some common offenses:

OffenseLimitationStatute
Murder None12.01(1)
ManslaughterNone12.01(1)
Sexual Assault of a ChildNone12.01(1)
Aggravated Sexual Assault of a ChildNone12.01(1)
Sexual Assaults where DNA was collectedNone12.01(1)
Serial Sexual AssaultNone12.01(1)
Continuous Sexual AssaultNone12.01(1)
Indecency with a Child None12.01(1)
Leaving the scene of an accident resulting in deathNone12.01(1)
Trafficking of childNone12.01(1)
Continuous Trafficking of PersonsNone12.01(1)
Compelling Prostitution of Child under 18None12.01(1)
Theft by Trustee10 Years 12.01(2)
Theft by a Public Servant of Government Property10 Years 12.01(2)
Forgery or passing a forged instrument10 Years 12.01(2)
Injury to Elderly or Disabled (First Degree)10 Years 12.01(2)
Sexual Assault10 Years 12.01(2)
Arson10 Years 12.01(2)
Trafficking of persons 10 Years 12.01(2)
Compelling Prostitution10 Years 12.01(2)
Misapplication of fiduciary property 7 Years 12.01(3)
Securing fiduciary property by deception 7 Years 12.01(3)
Felony violation of Tax Code Chapter 162 7 Years 12.01(3)
False statement to obtain credit 7 Years 12.01(3)
Money laundering 7 Years 12.01(3)
Credit card or debit card abuse7 Years 12.01(3)
Fraudulent use or possession of identifying information 7 Years 12.01(3)
Medicaid fraud 7 Years 12.01(3)
Bigamy (generally)7 Years 12.01(3)
Theft5 years 12.01(4)
Robbery5 years 12.01(4)
Kidnapping (generally)5 years 12.01(4)
Burglary (generally)5 years 12.01(4)
Injury to Elderly or Disabled (Other than First Degree)5 years 12.01(4)
Abandoning or Endangering a Child 5 years 12.01(4)
Insurance Fraud 5 years 12.01(4)
Sexual Performance by a child If the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Aggravated Kidnapping with intent to commit a sexual offenseIf the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Injury to a Child Ten years from the 18th Birthday of the victim 12.01(6)
Other felonies 3 years12.01(7)
Misdemeanors2 years

What is the Statute of Limitations for a DWI in Texas?

The statute of limitations for a misdemeanor DWI is two years. This includes Driving While Intoxicated; Driving While Intoxicated – Misdemeanor Repetition; Driving While Intoxicated with a BAC >/= .15; and Driving While Intoxicated with an Open Container. The statute of limitations for Driving While Intoxicated with a Child Passenger and Driving While Intoxicated – Felony Repetition is three years. The statute of limitations for Intoxication Assault and Intoxication Manslaughter is three years.

Why Do We Have Statutes of Limitations?

Statutes of limitations exist because the passage of time affects the quality of evidence on both sides. Statutes of limitations protect individuals from having to defend themselves against charges when basic facts and evidence may have become obscured or deteriorated with the passage of time. As mentioned, statutes of limitations vary based on the offense and, for some crimes, there is no statute of limitations at all.  Additionally, the statute of limitations may be tolled, or suspended, under certain circumstances.

Can the Statute of Limitations Clock be Stopped?

The statute of limitations can be tolled (or paused) while the accused is absent from the state, by charging the person by indictment, information, or complaint.

What is “Tolling” of a Statute of Limitations?

Under certain circumstances, the statute of limitations can be tolled, which basically means it is paused. For example, the statute of limitations is tolled for any time period in which the defendant was under indictment for “the same conduct, same act, or same transaction.” Similarly, the statute of limitations can be tolled while the accused is absent from the state. Tolling commonly occurs when a defendant is on the run. Simply put, tolling means the clock stops running for a certain period of time.

 

The post Criminal Statute of Limitations in Texas appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

What are the Criminal Statute of Limitations in Texas?

The statute of limitations for a criminal case refers to how long prosecutors have to bring a case against a person. The statute of limitations vary for different offenses and are laid out in Article 12 of the Code of Criminal Procedure. By setting statute of limitations, the legislature tries to balance the need for victims to come forward with ability of the accused to have evidence for which to defend themselves. The statute of limitations for a criminal case is the time in which a case must be filed before being barred from prosecution due to delay. In other words, if the state fails to bring a case against a suspect within a certain time period, it loses the right to prosecute the case.

How Long are the Criminal Statutes of Limitations in Texas?

The criminal statute of limitations in Texas varies, depending on the severity of the offense. The statute of limitations for misdemeanors is two years. Unless specified, it’s three years for felonies. However, it’s important to point out that many felonies do carry a specified statute of limitations, usually at five years, seven years or ten years. Some criminal statute of limitations are based on the age of the victim. For some offenses, such as murder and aggravated sexual assault of a child, there is no criminal statute of limitations at all.

A Chart of  Statute of Limitations in Texas

Generally, the statute of limitations for criminal cases in Texas can be found under Chapter 12 of the Code of Criminal Procedure. Here’s a look at the statue of limitations for some common offenses:

OffenseLimitationStatute
Murder None12.01(1)
ManslaughterNone12.01(1)
Sexual Assault of a ChildNone12.01(1)
Aggravated Sexual Assault of a ChildNone12.01(1)
Sexual Assaults where DNA was collectedNone12.01(1)
Serial Sexual AssaultNone12.01(1)
Continuous Sexual AssaultNone12.01(1)
Indecency with a Child None12.01(1)
Leaving the scene of an accident resulting in deathNone12.01(1)
Trafficking of childNone12.01(1)
Continuous Trafficking of PersonsNone12.01(1)
Compelling Prostitution of Child under 18None12.01(1)
Theft by Trustee10 Years 12.01(2)
Theft by a Public Servant of Government Property10 Years 12.01(2)
Forgery or passing a forged instrument10 Years 12.01(2)
Injury to Elderly or Disabled (First Degree)10 Years 12.01(2)
Sexual Assault10 Years 12.01(2)
Arson10 Years 12.01(2)
Trafficking of persons 10 Years 12.01(2)
Compelling Prostitution10 Years 12.01(2)
Misapplication of fiduciary property 7 Years 12.01(3)
Securing fiduciary property by deception 7 Years 12.01(3)
Felony violation of Tax Code Chapter 162 7 Years 12.01(3)
False statement to obtain credit 7 Years 12.01(3)
Money laundering 7 Years 12.01(3)
Credit card or debit card abuse7 Years 12.01(3)
Fraudulent use or possession of identifying information 7 Years 12.01(3)
Medicaid fraud 7 Years 12.01(3)
Bigamy (generally)7 Years 12.01(3)
Theft5 years 12.01(4)
Robbery5 years 12.01(4)
Kidnapping (generally)5 years 12.01(4)
Burglary (generally)5 years 12.01(4)
Injury to Elderly or Disabled (Other than First Degree)5 years 12.01(4)
Abandoning or Endangering a Child 5 years 12.01(4)
Insurance Fraud 5 years 12.01(4)
Sexual Performance by a child If the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Aggravated Kidnapping with intent to commit a sexual offenseIf the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Injury to a Child Ten years from the 18th Birthday of the victim 12.01(6)
Other felonies 3 years12.01(7)
Misdemeanors2 years

What is the Statute of Limitations for a DWI in Texas?

The statute of limitations for a misdemeanor DWI is two years. This includes Driving While Intoxicated; Driving While Intoxicated – Misdemeanor Repetition; Driving While Intoxicated with a BAC >/= .15; and Driving While Intoxicated with an Open Container. The statute of limitations for Driving While Intoxicated with a Child Passenger and Driving While Intoxicated – Felony Repetition is three years. The statute of limitations for Intoxication Assault and Intoxication Manslaughter is three years.

Why Do We Have Statutes of Limitations?

Statutes of limitations exist because the passage of time affects the quality of evidence on both sides. Statutes of limitations protect individuals from having to defend themselves against charges when basic facts and evidence may have become obscured or deteriorated with the passage of time. As mentioned, statutes of limitations vary based on the offense and, for some crimes, there is no statute of limitations at all.  Additionally, the statute of limitations may be tolled, or suspended, under certain circumstances.

Can the Statute of Limitations Clock be Stopped?

The statute of limitations can be tolled (or paused) while the accused is absent from the state, by charging the person by indictment, information, or complaint.

What is “Tolling” of a Statute of Limitations?

Under certain circumstances, the statute of limitations can be tolled, which basically means it is paused. For example, the statute of limitations is tolled for any time period in which the defendant was under indictment for “the same conduct, same act, or same transaction.” Similarly, the statute of limitations can be tolled while the accused is absent from the state. Tolling commonly occurs when a defendant is on the run. Simply put, tolling means the clock stops running for a certain period of time.

 

The post What are the Criminal Statute of Limitations in Texas? appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

The Supreme Court struck down the Professional and Amateur Sports Protection Act (PASPA) in May 2018 in Murphy v. NCAA, holding that PASPA “regulate[s] state governments’ regulation of their citizens,” which is not a power given to congress by the Constitution. As a win for New Jersey and other states seeking to engage in sports betting, the Supreme Court held that PASPA was a violation of the 10th Amendment, which stipulates that powers not given to the federal government or expressly taken away from states are given to the states. Basically, congress is able to regulate sports betting directly, but cannot tell the states how to regulate the industry.

What is PASPA and what did it do?

PASPA made several activities unlawful. Specifically, a state could not “sponsor, operate, advertise, promote, license, or authorize” by law a “lottery, sweepstakes, or other betting, gambling, or wagering scheme based on competitive sporting events.” 28 USC §3702(1) and (2). Sports gambling on its own was not a federal crime, but the Attorney General and professional or amateur sports organizations were legally allowed to sue the state civilly and join violations together. Four states were allowed to continue operations that had existed in those states at the time PASPA was passed. Additionally, New Jersey was allowed to set up a gambling scheme so long as it did so within a year of PASPA becoming law.

Here is what the law prohibited in a chart. The following activities based on competitive sporting events were not allowed:

·      Sponsorship

·      Operation

·      Advertisement

·      Promotion

·      Licensing, or

·      Authorization

 

 

 

 

Of

·      Lottery,

·      Sweepstakes,

·      Or other betting,

·      Gambling, or

·      Wagering scheme

Although New Jersey was allowed to set up a gambling scheme, it failed to do so within the permitted year. The state then decided that it did want to legalize sports gambling. The problem was that New Jersey took years to come to that decision – long after the period of time allowed by PASPA. As a result, the NCAA and several major sports leagues sued New Jersey on a PASPA violation. New Jersey argued that PASPA violated constitutional law, specifically anticommandeering principles, by prohibiting states from changing or striking down laws, in this case laws that pertained to sports betting.

New Jersey passed the law that became the crux of the SCOTUS case in 2014. That law repealed New Jersey’s prohibitions against sports-gambling for individuals over 21 years old, so long as the bets were placed at a casino, gambling house, or horse track in Atlantic City, and only on sporting events. Gambling on college sports or events in the state were not part of the allowed activities.

What were the odds?

Proponents of legalizing sports betting argued that legalizing the activity will generate revenue for states and reduce the strength of illegal betting organizations. Opponents of legalization argued that legalizing sports gambling will push people toward gambling and encourage unreasonable spending and financial practices.

proponents of sports gambling

 

The Supreme Court on Sports Gambling

sports betting legalThe Supreme Court held that anticommandeering is a core right in the Constitution and equates to congress being unable to directly order the states to comply with something. Anticommandeering is just what is sounds like. The doctrine prevents the federal government from imposing restrictions on or “commandeering” state governments, especially in terms of laws that aim to target state activity by controlling or creating mandatory duties for the state legislatures or state officials. The Supreme Court stated that the federal government and the states both have sovereign powers that support our system of “dual sovereignty,” Murphy v. NCAA, (citing Gregory v. Ashcroft, 501 U. S. 452, 457 (1991)).

The Supreme Court held that congress did not have the authority to ban states from regulating sports gambling within their own state. PASPA was found to be a violation of the anticommandeering rule because it gave direct orders to state legislatures and prohibited states from authorization activity. As a result, the Supreme Court did not even need to evaluate whether New Jersey violated the PASPA anti-licensing provision.

Ultimately, the Supreme Court held that while Congress may regulate sports gambling by creating a federal set of guidelines for the industry, it could not force states to regulate their own industry.

Are there larger implications within and outside of sports betting?

Yes. Financially, allowing legal sports betting could bring a huge revenue influx to states that choose to allow it. For example, in Nevada, Las Vegas pulls in several billion dollars a year through sports betting. The illegal sports betting market is estimated at up to $100 billion dollars. By legalizing, this market would shift to legal venues and generate money for the state.

There are also non-gambling implications of the law. For example, Amy Howe, a writer for SCOTUSblog, wrote that supporters of “sanctuary-cities” may use this ruling as a precedent to not follow directions, rules, and laws set forth by immigration officials.

Can Congress do anything to ban or regulate sports betting?

Probably. Even though PASPA has been struck down and is no longer valid law, Congress could create a set of federal rules or guidelines that would give rise to uniformity among states.

So, what exactly does this mean?

SCOTUS struck down the existing sports-gambling restriction that prevented states from regulating their own sports-betting industries. Now, states are free to engage in modifying, creating, or otherwise affecting sports-related gambling in their own state. Congress may move to create legislation to regulate the industry as a whole but lacks the power to dictate how states are to run their own sports-betting industries.[/vc_column_text][/vc_column][/vc_row]

The post Supreme Court Ruling Allows States to Legalize Sports Betting appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

What is the punishment for bringing a gun into an airport?

Picture this: You’re standing in the security line at the airport. You’re late for your flight, the line is long, your phone is ringing and you’ve got less than 30 minutes to be in your seat for takeoff. The last thing on your mind is whether or not you checked your bag for prohibited items, such as a handgun. If you live in Texas, chances are you have a few (or more) guns. Here’s what could happen if you are arrested in an airport with a gun.

If you are stopped in DFW Airport, you will be taken to the DFW Airport Jail and your case will be filed in Tarrant County. If you are stopped in Dallas Love Field, your case will be filed in Dallas County.

It is unlawful for an individual to carry a handgun into a secured area of an airport. Travelers who are found carrying a handgun into the secured area of an airport are subject to immediate arrest and confiscation of the weapon.  The case can be filed either as a misdemeanor or felony in Texas.

Unlawful Carry of Weapon – Prohibited Place (Felony)

Texas Penal Code Section 46.03 states that a person commits an offense if they intentionally, knowingly, or recklessly possess a firearm when going into a secured area of an airport. This means that once you pass that security threshold, even if you accidentally carried a firearm on your person or in your bag, you have committed a crime. It is NOT a defense to the crime that you are licensed to carry a concealed handgun.

Unlawful Carry of Weapon – Prohibited Place CHL/LTC Holders

There is good news for those individuals who would be facing the felony charge or Unlawful Carry of a Weapon – Prohibited Places. The Texas Legislature created an exception that may be applied to CHL (now LTC) holders. Effective September 1, 2015, Section 46.03 of the Penal Code was amended so that instead of placing someone under arrest, TSA agents may ask the individual to exit the secured area. An individual asked to exit the secured area must immediately comply.

How to Fly with a Gun – Legally

This does not mean that you cannot take a gun with you when you fly. In fact, the TSA and Texas laws allow guns to be transported, so long as they are done so properly in a checked bag. Always check TSA regulations before flying with a weapon in a checked bag. You will need to ensure the firearm is not loaded, declare the firearm, transport it in a locked hard-sided case, ensure the destination allows for the weapon to be transported there, and to have the key to the hard-sided case available should the TSA request an inspection of the weapon. (Some states do not allow this and you may be arrested if you try to bring a gun onto a plane even in a checked bag. New York and New Jersey in particular have this law.)

Penal Code Section 46.03 – Places Weapons Prohibited

Before talking about why an attorney is necessary, let’s cover what will happen as a result of bringing a gun through security. 1) You will be arrested. There used to be some discretion to not arrest offenders, but that is not the world we live in anymore. You will be sent to the jail if you bring a gun through security. 2) You are probably going to miss your flight. Being arrested often takes time and even if you did arrive at the airport the recommended two hours early, you still probably will not get back to the gate in time to make your flight. 3) Your gun will be seized. You may or may not get it back. Most judges will not authorize weapons to be released back to individuals who were arrested. 4) Your case will be filed with the Tarrant County District Attorney’s Office for DFW cases and Dallas County for Love Feild cases for prosecution. And most importantly, 5) you will be charged with a third degree felony or a Class A misdemeanor.

A third degree felony potentially carries a prison sentence up to 10 years and up to a $10,000 fine. Additionally, the federal government could seek up to an $11,000 fine. The point is, you could be facing some tough time and a large chunk of your bank account disappearing just because you forgot that you brought a gun with you to the airport. Additionally, if convicted you may lose additional rights. Also relevant is that Texas Penal Code Section 46.04 makes it illegal for a convicted felon to possess a gun. So if you are convicted of this crime, you may not be able to carry a gun in the future. Being charged with bringing a gun through airport security is a very serious matter.

Texas Penal Code Section 46.02 – UCW – Unlawful Carry Weapon (Misdemeanor)

The State can also file the case as an Unlawful Carry of a Weapon under Section 46.02 of the Penal Code. It is illegal to intentionally or knowingly carry a handgun on a premises not owned or controlled the carrier when the person carrying the handgun is not inside or directly en route to his/her motor vehicle. If the State files the case without the Prohibited Places language, it is a Class A misdemeanor. As such the punishment range would be up to one year in jail and up to a $4,000 fine.

Changes in the law: 2015 Airport UCW Amendments

This new law was passed in hopes of differentiating between individuals who intentionally, knowingly, or recklessly bring a firearm into a secured area and CHL holders who simply forgot that they had their handgun at the airport.

What are the TSA penalties for bringing a gun into an airport?

You arrive home after work one day and a pile of mail is awaiting your review. Magazine, toss. Credit Card application, toss. TIME magazine, maybe later. TSA Notice of Violation…wait, what?

TSA Notice of Violation

When you present yourself to an airport for security inspection, you are subject prosecution under State and Federal law. The Transportation and Security Administration (TSA) has a mission to protection the nation’s transportation systems. Part of that mission is ensuring the Transportation Security Regulations (TSRs) are enforced. TSRs include the prohibition of firearms, regardless of whether they are loaded or not. When you are caught, whether intentionally or unknowingly, with a firearm at an airport, you will receive a civil penalty in the amount of $3,000 from the TSA. When you receive notice of this civil penalty, you have five options to pursue:

  1. Pursue the Proposed Civil Penalty
  2. Submit Evidence for Consideration
  3. Submit Information for Consideration in Support of a Reduction of the Civil Penalty
  4. Request an Informal Conference
  5. Request a Formal Hearing

Paying the Proposed Civil Penalty involves either submitting payment of the $3,000 fine by check, money order, or credit card to the TSA.

Submitting Evidence for Consideration involves demonstrating that the TSA violation did not occur as alleged for that the civil penalty proposed is not warranted considering all of the circumstances.

Submitting Information for Consideration in Support of a Reduction of the Civil Penalty involves submitting a written request for reduction of the $3,000 proposed TSA Civil Penalty due to financial hardship or an inability to pay.

Request for an Informal Conference involves a teleconference hearing with a TSA Agent concerning the facts alleged giving rise to the civil penalty and a production of mitigating facts combined with a request for reduced penalty.

Request for a Formal Hearing involves an Administrative Law Judge and a TSA Agent filing a complaint to commence the adjudication process. In this hearing, the TSA will have the burden of proof and both sides will have the opportunity to present witnesses. If you are not pleased with the outcome of the hearing, you may appeal the TSA Decision Maker and ultimately the U.S. Court of Appeals.

The attorneys at Varghese Summersett PLLC regularly handle the TSA hearings as a part of our representation of individuals charged with carrying a gun into an airport. These cases come up frequently and our experience in this area has not only resulted in exceptional results on the criminal cases as well as against the civil and administrative consequences sought to be imposed by the TSA.

If you have been charged with carrying a gun into DFW Airport, Lovefield, or any other airport in Texas,  call us today at 817-203-2220 for assistance.

What Can an Attorney Do For You on a Possession of Prohibited Weapon Case?

A skilled attorney may be able to negotiate a dismissal of your case or secure a no-bill through the grand jury (which is when the grand jury decides a felony case should not be prosecuted). They may also be able to resolve the case without a criminal conviction. Depending on the outcome, you may also be eligible for an expunction or non-disclosure of the record.

Forgetting a handgun or firearm in carry-on luggage in unfortunately an easy mistake to make in Texas. Individuals from all walks of lives carry guns in Texas for their own protection, and sometimes they forget the piece of luggage they grabbed to use as a carry-on still has a firearm in it. This article addresses what happens when a person has a gun or firearm in their luggage in Texas.

DFW Airport has the largest amount of offenders who try to carry a gun through airport security. In 2014 alone, the TSA seized 120 guns from would-be passengers. In August of 2013, Shemane Nugent, wife of rockstar and gun activist Ted Nugent, was arrested at DFW Airport for attempting to take a Smith & Wesson 38 Special revolver onto a plane. In September of 2014, Eric Laffoon was caught at a security gate with a folding rifle loaded with 15 rounds of ammunition in his carry-on bag. Are these people really looking to smuggle guns onto planes for nefarious purposes? Generally not. Shemane Nugent, Eric Laffoon, and most of the other people arrested all said the same basic thing. “I forgot it was there.”

Most people charged with bringing a gun through airport security are law-abiding citizens of Texas who are not attempting to commit a crime but are so used to carrying their guns that they just forget they have them until it’s too late and they have been arrested. If you know someone in this situation, have them call us at (817) 203-2220 or contact us online:

Contact Us

 

The post Unlawful Carry of Weapon – Prohibited Place | Gun in Airport appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

What is the punishment for bringing a gun into an airport?

Picture this: You’re standing in the security line at the airport. You’re late for your flight, the line is long, your phone is ringing and you’ve got less than 30 minutes to be in your seat for takeoff. The last thing on your mind is whether or not you checked your bag for prohibited items, such as a handgun. If you live in Texas, chances are you have a few (or more) guns. Here’s what could happen if you are arrested in an airport with a gun.

If you are stopped in DFW Airport, you will be taken to the DFW Airport Jail and your case will be filed in Tarrant County. If you are stopped in Dallas Love Field, your case will be filed in Dallas County.

It is unlawful for an individual to carry a handgun into a secured area of an airport. Travelers who are found carrying a handgun into the secured area of an airport are subject to immediate arrest and confiscation of the weapon.  The case can be filed either as a misdemeanor or felony in Texas.

Unlawful Carry of Weapon – Prohibited Place (Felony)

Texas Penal Code Section 46.03 states that a person commits an offense if they intentionally, knowingly, or recklessly possess a firearm when going into a secured area of an airport. This means that once you pass that security threshold, even if you accidentally carried a firearm on your person or in your bag, you have committed a crime. It is NOT a defense to the crime that you are licensed to carry a concealed handgun.

Places Weapons Prohibited – Generally

There are certain places wherein firearms are prohibited in the state of Texas.  This prohibition extends to people who are otherwise lawfully licensed to carry a concealed handgun.  Disregard for the prohibition against weapons in certain areas is a third-degree felony.  However, the person must intentionally, knowingly, or recklessly possess a firearm, illegal knife, club, or other prohibited weapon to be guilty of this offense.

The state of Texas prohibits weapons in the following places:

  • Schools and other educational institutions;
  • The grounds or buildingschool-sponsoredponsored activities are occurring;
  • At polling places on election day or during early voting;
  • At court, or court offices, unless the weapon is possessed with written court authorization or other written regulations;
  • On racetrack premises;
  • Within the secured portion of the airport. The exception to this is when the firearm is checked as baggage, consistent with both federal and state laws, before the firearm enters the secured area;
  • Within 1,000 feet of a location where an execution is to take place under Article 43.19 of the Code of Criminal Procedure on the day the execution is scheduled, provided the person has received prior notice being within 1,000 feet of the premises is prohibited.  The exception to this is where a person is in lawful possession of a firearm in their residence or at their job, or in a car being driven on a public road within 1,000 feet of the premises.

Certain people are exempt from the prohibition on weapons in certain places.  It bears repeating that those with a license to carry a concealed handgun are not exempt from these rules.  Exempt persons include:

  • Those traveling to or from a person’s workplace as a member of the national guard;
  • A member of the armed forces;
  • A prison guard;
  • A security officer of the Texas Private Security Board if they are in uniform and the firearm is in plain view;
  • Security officers in uniform with the weapon in plain view, or out of uniform with the firearm concealed.

Third-degree felonies are punishable by a minimum of two years in prison, and a maximum of 10 years.

Unlawful Carry of Weapon – Prohibited Place CHL/LTC Holders

There is good news for those individuals who would be facing the felony charge or Unlawful Carry of a Weapon – Prohibited Places. The Texas Legislature created an exception that may be applied to CHL (now LTC) holders. Effective September 1, 2015, Section 46.03 of the Penal Code was amended so that instead of placing someone under arrest, TSA agents may ask the individual to exit the secured area. An individual asked to exit the secured area must immediately comply.

How to Fly with a Gun – Legally

This does not mean that you cannot take a gun with you when you fly. In fact, the TSA and Texas laws allow guns to be transported, so long as they are done so properly in a checked bag. Always check TSA regulations before flying with a weapon in a checked bag. You will need to ensure the firearm is not loaded, declare the firearm, transport it in a locked hard-sided case, ensure the destination allows for the weapon to be transported there, and to have the key to the hard-sided case available should the TSA request an inspection of the weapon. (Some states do not allow this and you may be arrested if you try to bring a gun onto a plane even in a checked bag. New York and New Jersey in particular have this law.)

Penal Code Section 46.03 – Places Weapons Prohibited

Before talking about why an attorney is necessary, let’s cover what will happen as a result of bringing a gun through security. 1) You will be arrested. There used to be some discretion to not arrest offenders, but that is not the world we live in anymore. You will be sent to the jail if you bring a gun through security. 2) You are probably going to miss your flight. Being arrested often takes time and even if you did arrive at the airport the recommended two hours early, you still probably will not get back to the gate in time to make your flight. 3) Your gun will be seized. You may or may not get it back. Most judges will not authorize weapons to be released back to individuals who were arrested. 4) Your case will be filed with the Tarrant County District Attorney’s Office for DFW cases and Dallas County for Love Feild cases for prosecution. And most importantly, 5) you will be charged with a third degree felony or a Class A misdemeanor.

A third degree felony potentially carries a prison sentence up to 10 years and up to a $10,000 fine. Additionally, the federal government could seek up to an $11,000 fine. The point is, you could be facing some tough time and a large chunk of your bank account disappearing just because you forgot that you brought a gun with you to the airport. Additionally, if convicted you may lose additional rights. Also relevant is that Texas Penal Code Section 46.04 makes it illegal for a convicted felon to possess a gun. So if you are convicted of this crime, you may not be able to carry a gun in the future. Being charged with bringing a gun through airport security is a very serious matter.

Texas Penal Code Section 46.02 – UCW – Unlawful Carry Weapon (Misdemeanor)

The State can also file the case as an Unlawful Carry of a Weapon under Section 46.02 of the Penal Code. It is illegal to intentionally or knowingly carry a handgun on a premises not owned or controlled the carrier when the person carrying the handgun is not inside or directly en route to his/her motor vehicle. If the State files the case without the Prohibited Places language, it is a Class A misdemeanor. As such the punishment range would be up to one year in jail and up to a $4,000 fine.

Changes in the law: 2015 Airport UCW Amendments

This new law was passed in hopes of differentiating between individuals who intentionally, knowingly, or recklessly bring a firearm into a secured area and CHL holders who simply forgot that they had their handgun at the airport.

What are the TSA penalties for bringing a gun into an airport?

You arrive home after work one day and a pile of mail is awaiting your review. Magazine, toss. Credit Card application, toss. TIME magazine, maybe later. TSA Notice of Violation…wait, what?

TSA Notice of Violation

When you present yourself to an airport for security inspection, you are subject prosecution under State and Federal law. The Transportation and Security Administration (TSA) has a mission to protection the nation’s transportation systems. Part of that mission is ensuring the Transportation Security Regulations (TSRs) are enforced. TSRs include the prohibition of firearms, regardless of whether they are loaded or not. When you are caught, whether intentionally or unknowingly, with a firearm at an airport, you will receive a civil penalty in the amount of $3,000 from the TSA. When you receive notice of this civil penalty, you have five options to pursue:

  1. Pursue the Proposed Civil Penalty
  2. Submit Evidence for Consideration
  3. Submit Information for Consideration in Support of a Reduction of the Civil Penalty
  4. Request an Informal Conference
  5. Request a Formal Hearing

Paying the Proposed Civil Penalty involves either submitting payment of the $3,000 fine by check, money order, or credit card to the TSA.

Submitting Evidence for Consideration involves demonstrating that the TSA violation did not occur as alleged for that the civil penalty proposed is not warranted considering all of the circumstances.

Submitting Information for Consideration in Support of a Reduction of the Civil Penalty involves submitting a written request for reduction of the $3,000 proposed TSA Civil Penalty due to financial hardship or an inability to pay.

Request for an Informal Conference involves a teleconference hearing with a TSA Agent concerning the facts alleged giving rise to the civil penalty and a production of mitigating facts combined with a request for reduced penalty.

Request for a Formal Hearing involves an Administrative Law Judge and a TSA Agent filing a complaint to commence the adjudication process. In this hearing, the TSA will have the burden of proof and both sides will have the opportunity to present witnesses. If you are not pleased with the outcome of the hearing, you may appeal the TSA Decision Maker and ultimately the U.S. Court of Appeals.

The attorneys at Varghese Summersett PLLC regularly handle the TSA hearings as a part of our representation of individuals charged with carrying a gun into an airport. These cases come up frequently and our experience in this area has not only resulted in exceptional results on the criminal cases as well as against the civil and administrative consequences sought to be imposed by the TSA.

If you have been charged with carrying a gun into DFW Airport, Lovefield, or any other airport in Texas,  call us today at 817-203-2220 for assistance.

What Can an Attorney Do For You on a Possession of Prohibited Weapon Case?

A skilled attorney may be able to negotiate a dismissal of your case or secure a no-bill through the grand jury (which is when the grand jury decides a felony case should not be prosecuted). They may also be able to resolve the case without a criminal conviction. Depending on the outcome, you may also be eligible for an expunction or non-disclosure of the record.

Forgetting a handgun or firearm in carry-on luggage in unfortunately an easy mistake to make in Texas. Individuals from all walks of lives carry guns in Texas for their own protection, and sometimes they forget the piece of luggage they grabbed to use as a carry-on still has a firearm in it. This article addresses what happens when a person has a gun or firearm in their luggage in Texas.

DFW Airport has the largest amount of offenders who try to carry a gun through airport security. In 2014 alone, the TSA seized 120 guns from would-be passengers. In August of 2013, Shemane Nugent, wife of rockstar and gun activist Ted Nugent, was arrested at DFW Airport for attempting to take a Smith & Wesson 38 Special revolver onto a plane. In September of 2014, Eric Laffoon was caught at a security gate with a folding rifle loaded with 15 rounds of ammunition in his carry-on bag. Are these people really looking to smuggle guns onto planes for nefarious purposes? Generally not. Shemane Nugent, Eric Laffoon, and most of the other people arrested all said the same basic thing. “I forgot it was there.”

Most people charged with bringing a gun through airport security are law-abiding citizens of Texas who are not attempting to commit a crime but are so used to carrying their guns that they just forget they have them until it’s too late and they have been arrested. If you know someone in this situation, have them call us at (817) 203-2220 or contact us online:

Contact Us

 

The post Unlawful Carry of Weapon – Prohibited Place | Airport Gun Cases appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.