CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

January 23, 2012

TWO CONFESSIONS: DIFFERENT CONSTITUTIONAL STANDARDS

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 2:20 pm

Confessions after Illegal Search Should be Suppressed if Influenced by Underlying Illegality, Violation of Forth Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are primarily two types of unlawful confessions: custodial confessions obtained in violation of the Fifth Amendment and confessions obtained as products of an illegal search in violation of the Fourth Amendment. The Ninth Circuit Court of Appeals had a recent opportunity in United States v. Shetler to address the latter.

Scott Raymond Shetler was a meth addict/dealer in Pomona, California in September 2009. His drug activities became so obvious that his daughter Jamie anonymously tipped off the Pomona Police Department that her father was using and manufacturing methamphetamine in his residence. Acting on this tip, three police officers arrived at the Shetler residence at 8:00 p.m. on September 22. They noticed a garage door was wide open and one officer detected a “chemical odor” coming from the garage. Standing outside, the three officers saw numerous boxes, motorcycle parts and other equipment in the garage. A partition wall concealed the back portion of the garage from frontal view. The Ninth Circuit explained what happened next:

“The officers entered the garage and conducted visual sweep to determine if there was an in-operation methamphetamine lab or a person behind the partition wall. They did not find anyone inside the garage or any evidence that methamphetamine was being cooked. The officers did, however, observe the following items in plain view behind the partition wall: a can of acetone, a duffel bag containing several plastic and glass beakers, and a jug that appeared to contain red phosphorus, a chemical that the officers knew to be related to the production of methamphetamine.

“At approximately 8:15 p.m., the officers left the garage and knocked on the front door of the house. Shetler exited the house from a side door and approached the officers, who handcuffed and detained him. By this point, several additional police officers had arrived. The police then called into the house to Shetler’s girlfriend, Cynthia Marohn, and her daughter, both of whom lived with Shetler. Marohn and her daughter stepped outside, and several officers immediately entered the residence and conducted a sweep. After completing this search of the house, several officers stayed inside the house, near the front door and in view of Marohn, who remained outside. At 8:5 p.m., while officers were still inside the residence, Marohn signed a consent form that authorized the police to enter the premises and search for ‘methamphetamine, methamphetamine cooking and packaging material, [and] weapons.’”

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July 26, 2011

SUPREME COURT CLARIFIES CRACK-POWDER COCAINES 713 AMENDMENT

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:22 pm

Federal Crack Sentence Reductions: Defendants Sentenced Pursuant to 11(c)(1)(C) Agreements Eligible for 3582(c)(2) Relief

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In 2007 the U.S. Sentencing Commission issued a retroactive amendment, Amendment 713, to the Sentencing Guidelines designed to eliminate the sentencing disparities in crack cocaine and powder cocaine cases. The amendment became effective in March 2008, and promptly triggered an outbreak of conflicting appellate court decisions, prompting the U.S. Supreme Court to intervene on several occasions and to restore judicial order (here and here). This past term the Court was once again was forced to confront another issue spun off by Amendment 713: whether the amendment could be retroactively applied in cases where a defendant entered into a plea agreement with the Government for a specific sentence. The Court, in Freeman v. United States, answered that question in the affirmative, although in a plurality decision.

Federal district courts, under 18 U.S.C. § 3582(c), generally do not have the authority to “modify a term of imprisonment once it has been imposed.” This is especially true where the defendant has entered into a plea agreement for a specific sentence endorsed by the sentencing judge. Subsection (c)(2), however, provides the following stipulation: “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or upon its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

In 2005 William Freeman was indicted for a litany of crimes, including possession with intent to distribute cocaine base and possession of a firearm. Pursuant to Federal Rules of Criminal Procedure, Rule 11(c)(1)(C), he entered into a plea agreement with the Government calling for him to plead guilty to all the charges in exchange for a recommended 106-month sentence. The plea agreement specifically stated “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case” and that Freeman agreed “to have his sentence determined pursuant to the Sentencing Guidelines.” The recommended 106-month sentence was the minimum sentence recommended on the drug count while a mandatory consecutive sentence was required on the gun count by 18 U.S.C. § 924(c)(1)(A). The trial court accepted the agreement after which it sentenced Freeman to 106 months on the drug count and the minimum 60-month term under Sec. 924.

Shortly after the Sentencing Commission adopted Amendment 713, Freeman filed a motion to reduce his 106-month cocaine sentence pursuant to Sec. 3582(c))(2). Under the amendment, Freeman would face a minimum sentence of 37 to 46 months. The district court denied the Sec. 3582(c)(2) motion and the Sixth Circuit, citing its holding in United States v. Goins, upheld the trial court’s ruling. Both courts essentially held that defendants sentenced pursuant to a plea agreement calling for a specific sentence are ineligible for Sec. 3582(c)(2) relief. This prompted the Supreme Court to intervene and decide the issue—hopefully once and for all. Too many lower courts, at both the district court and appellate court level, have resisted the spirit, if not the intent, of Amendment 713.

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June 17, 2011

MILITARIZED POLICE NO KNOCK SEARCHES KILL INNOCENT PEOPLE

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 6:55 pm

Recent U.S. Supreme Court Decisions Expanding “No Knock” Powers of the Police and Insulating Law Enforcement Abuses Allow a Growing Police State

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We are no fans of “no knock” searches by the police, especially those launched by militarized SWAT units. We made this clear after a recent U.S. Supreme Court decision expanding police powers to conduct such searches (here). We don’t like them because they kill innocent people indiscriminately. We have permitted our law enforcement agencies to become so militarized that “no knock” searches increased from 3,000 in 1981 to 50,000 in 2005, according to Eastern University of Kentucky criminologist Paul Kraska, and have resulted in the deaths of 40 innocent people during that time, according to the Washington-based Cato Institute. Peter Guither, with Drug War Rant, places the number of innocents killed in “no knock” searches at 42.

One of those innocent people gunned down by the police was 44-year-old substitute Sunday school teacher Cheryl Noel who kept a registered gun in her bedroom. Nine years earlier her 16-year-old stepdaughter had been killed in a shooting which led Noel to purchase a weapon for self-protection. On June 2, 2011 the Fourth Circuit Court of Appeals, in Noel v. Arston, rejected claims by her estate that they were entitled to civil damages under 42 U.S.C. Sec. 1983.

The Noel tragedy began in October 2004 when a Baltimore County police officer noticed a white dusty power inside a bag in Matthew Noel’s vehicle during a routine traffic stop. The 18-year-old Noel lived at home with his parents Cheryl and Charles. He admitted to the traffic stop officer that he had a “Percocet abuse problem.” The traffic stop officer passed this information on to the Baltimore County narcotics department. Sgt. Robert Gibbons initiated a surveillance of the Noel residence, examining the trash thrown away by its occupants each day. Why law enforcement officials decided to conduct such an intensive investigation based on nothing more than white dust powder in a vehicle driven by an 18-year old who admitted to having a drug abuse problem has never been made clear in the public record.

What is clear is that Gibbons found marijuana and other drug paraphernalia in the trash which was sufficient for him to apply for and secure a search warrant of the Noel residence on January 19, 2005—some three months after the traffic stop discovery of the white dust powder. Gibbons then discussed the search with Baltimore County SWAT supervisors who decided that a “no knock” entry was appropriate.

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April 9, 2011

The Paradox that is The War on Drugs

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 11:07 am

While Some Politicians Question Cost Of Incarcerating Drug Offenders, Big Money and Bigger Forfeitures Keeps Texas Tough On Drug Crime

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

An increasing number of states have abandoned the traditional notion that the best way to combat drug use and trafficking is through the costly practice of extended incarceration. TheWall Street Journal last month reported that Kentucky joined the ranks of South Carolina, Colorado and New York to enact laws that shift spending into less expensive and more effective rehabilitation and intensive drug testing programs. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are currently considering bills that would reduce drug penalties and direct some drug defendants into treatment programs.

The newspaper reported that while these drug law changes “are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years …” Many of these lawmakers are conservative Republicans, like State Senator Tom Jensen in Kentucky, who said he had long “bought into the tough-on-crime concept” and embracing the “rehabilitative model” has been “an education process.”

But not all conservative-leaning people are convinced. For example, Scott Burns, executive director of the National District Attorneys Association, told the WSJ that “you need to have serious consequences or repercussions in place if people use heroin, Oxycontin and other drugs.” Aaron Negangard, chairman of the Indiana Prosecuting Attorneys Council, agreed: “Crime will go up in five to 10 years and people will wonder why. It’s because we are letting too many people out of prison.”

FBI crime-gathering data shows that between 1980 and 2009 drug arrests in this country climbed from approximately 580,000 to 1.6 million. Texas was one of the states that watched its prison population rise exponentially until 2007 when, as WSJ reported, the state “began shifting more drug offenders away from prison, which helped hold down the inmate population. The changes cost $241 million, less than half what the state anticipated it would have spent to build three new prisons. The impact on the crime rate isn’t clear.”

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March 11, 2011

DRUG CHECKPOINTS AND THEIR AFTERMATH

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 6:27 pm

Drug Mules/Smugglers Beware: Permanent Border Patrol Checkpoints in Texas Seize Tons of Drugs, Marijuana, Illustrate Inhumanity of Drug Laws

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are many problems with mandatory minimum sentencing as we have discussed in previous blogs, but the following is just one real life example. He is a Mexican national, a legal resident in this country. He is a long haul truck driver. He has a family to support. He is approached by people who want him to haul a legal shipment of produce. He is told contraband will be concealed in the produce. But he is not told what the contraband is. He is paid one thousand dollars to make the delivery. It will help pay the bills, particularly the medical bills for one chronically ill child.

But things go awry. He is stopped at a drug checkpoint near the Texas border. A drug-sniffing dog alerts on the trailer of his rig. Border patrol officers have probable cause to search the trailer, but the driver eliminates the need for a warrant with consent to search. The search reveals over 2000 kilograms of marijuana. The driver is arrested. He is eventually indicted 21 U.S.C. § 841(a)(1) with possession with intent to distribute a controlled substance. Under subsection (b)(1)(A) of this statute, the driver faces a mandatory minimum of ten years imprisonment and a maximum of life imprisonment in addition to a possible fine of up to $4 million. With no “priors” or criminal history, the U.S. Sentencing Guidelines will recommend a minimum sentence of approximately 13 years (156 months) in such a case, and probably much worse.

Sentencing in these kinds of drug cases can be severe as evidenced last month when United States District Judge Micaela Alvarez, sitting in Laredo, sentenced eight members of a drug trafficking organization to 180 to 360 months without parole. The drug traffickers, operating out of McAllen, used tractor trailers to ship marijuana and cocaine to Georgia, Florida and North Carolina. The organization hired commercial truck drivers to transport the drugs concealed in legitimate merchandise who, on their return runs, transported large amounts of cash received from the drug sales. U.S. Attorney Jose Angel Moreno said the drug money was distributed throughout the Rio Grande Valley. This particular drug bust alone resulted in the seizure of 200 kilograms of cocaine, 2000 kilograms of marijuana, and the seizure/forfeiture of nearly $5 million.

U.S. Attorney Moreno said six of the members were truck drivers who received sentences ranging from 180 months to 350 months depending upon U.S. Sentencing Guidelines calculations. Judge Alvarez added that each of the eight defendants would have to serve periods ranging from 3 to 10 years under “supervised release” upon completion of their prison terms. This means that at a minimum the least culpable of these defendants will have to spend nearly 20 years while the most culpable will spend nearly 40 years under some form of federal supervision. With no parole, federal inmates serve approximately 87 percent of their sentence in actual custody.

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February 11, 2011

THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.

The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).

In September 2006 federal customs officers received a tip from undercover informant that Delgado had marijuana in a tractor trailer truck parked at her rural residence in Weslaco, Texas. Delgado, the sole owner and operator of T.J. Trucking, gave the officers “consent” to search after which they discovered 230 kilograms of marijuana in the sleeper cab of the locked semi-trailer truck which was parked inside her fence. Delgado told the officers she didn’t know anything about the marijuana or how it got in the truck; that her company hired drivers to operate the semi-trailer to haul Mexican produce from Laredo to destinations throughout the United States. She also informed the officers that she did not drive or accompany the truck on its long hauls, and that the bulk of her business was conducted by telephone from her residence. The officers seized her cell phone, computer, bank records, and personal papers—none of which disclosed any evidence of illegal drug activity.

Bartolome Vasquez was a legal Mexican resident who worked as a produce broker and shipper in Laredo. He also moonlighted as a paid government informant. He knew Delgado, having done business with her arranging produce shipments the four years prior to 2006. He told his U.S. Customs handlers that he spoke with Delgado at least four times a month either in person or over the telephone. He told the handlers he considered her a “legitimate trucking business operator” until September 2006 when she offered him $10,000 to haul a load of marijuana mixed with produce to North Carolina. Vasquez said he turned down the offer and immediately reported it to his Customs handlers. Since they had previously paid him $1300 for drug smuggling related information, he naturally expected a reward for the Delgado information—and, as a matter of fact, he did receive $7,500 for that information.

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February 7, 2011

CELL PHONES-TEXTS NOT SAFE FROM POLICE SEARCHES

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 4:01 pm

Fifth Circuit: U.S. Court of Appeals Allows Search of Cell Phone Text Messages without Warrant, After Arrest

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The popularity of Short Message Service (SMS), text messaging, originated in Europe and Asia before captivating American cell phone users, according to a 2008 CBS News report. SMS’ sudden popularity was linked directly to cost: it was cheaper to send short text messages than to make an actual phone call. CBS News pointed out that it cost less than a penny to send a text message in 2008. Perhaps it was also the cost factor that caused Americans, especially the young, to fall “head on heels” in love with texting in 2008.  According to CTIA, the wireless industry trade association, Americans sent an average of 2.5 billion text messages per day that year, an increase of 160 percent over 2007. This SMS surge was fueled by teens between 13 and 17 who sent and received an average of 1,742 messages per month. And the SMS explosion in America did not escape the economic attention of the cell phone providers: the cost of sending and receiving text message increased by a whopping 100 percent during this same time period.

SMSs also caught the attention of law enforcement and the courts. We recently posted a piece concerning a decision in which the California Supreme Court ruled that the police may read and seize test messages stored on an accused suspect’s cell phone “incident to a lawful arrest.” Actually the 2011 California ruling has been precedent law here in the Fifth Circuit since 2007 when that federal appeals court handed down United States v. Finley. While we cited Finley in our previous post, we did not give it adequate attention.

Jacob Pierce Finley was convicted of one count of aiding and abetting possession with intent to distribute methamphetamines (meth). At the time of his August 2005 arrest in Midland, Texas by the local police and DEA agents Finley was working for a plumbing company owned by his uncle. As a tool of his employment, Finley was assigned a cell phone with which he was authorized to make personal cells along his business-related calls.

Law enforcement attention focused on Finley after the Midland police and DEA agents set up an undercover meth buy from a local dealer named Mark Brown. The DEA used one of its confidential informants (“CI”) to arrange the drug purchase. The CI contacted Brown telling him that she wanted to purchase $600 in meth but could not come to Brown’s residence because she was at a truck stop with no transportation. Brown agreed to meet the CI at the truck stop where the DEA gave her $600 in marked bills.

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March 17, 2010

CAN THE SMELL OF POT LEAD TO WARRANTLESS ARREST?

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 1:23 am

Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Some defense attorneys—and not without a legitimate basis—mistakenly believe that if a police officer detects the odor of marijuana inside a residence, the officer does not have probable cause to enter the residence and arrest the suspected owner of the drug without a warrant. This belief can be traced to a 2002 decision by the Texas Court of Criminal Appeals in State v. Steelman which held that “the detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place.” 1/

Lubbock attorneys Chuck Lanehart and Ralph H. Brock argued the Court of Criminal Appeals (“CCA”) had established a blanket rule, or at least the impression of a blanket rule, in Steelman so they filed a motion to suppress evidence seized from their client, Christopher Chad Parker, on the night of April 2, 2001. A local resident named Ms. Vangie Leal had informed two Lubbock police officers named Ralph Sanchez and Rodney Stevens that night at a local convenience store about alcohol allegedly being served to minors at a nearby residence. Acting on this information, which they believed to be reliable, officers Sanchez and Stevens drove to the nearby two-story house where they saw several vehicles parked outside but no unusual activity. Then Sanchez spotted someone parting the blinds inside the residence and heard someone say, “it’s the police.” 2/

Sanchez and Stevens believed these actions warranted further investigation. They approached the residence and knocked. Christopher Parker opened the door. Officer Stevens saw what appeared to be a juvenile run up the stairs and recognized him from previous minor encounters the officer had with the juvenile. Stevens also immediately smelled the odor of burnt marijuana. He informed Parker that he and officer Sanchez were there to investigate a report of “kids drinking alcohol.” Stevens also told Parker the two officers would have to enter the residence because of the smell of marijuana. Parker allowed the officers inside the residence. 3/

Stevens and Sanchez gathered all the occupants of the residence into the living room. Stevens went to find the person he had seen running up the stairs and in the process found Parker’s mother sleeping. The officer asked her to join everyone in the living room. A short time thereafter two police supervisors arrived. Just as one of the supervisors was asking Parker’s mother for consent to search the residence, officer Stevens saw a marijuana cigarette butt and some loose marijuana in plain sight on top of a pizza box in the living room. While the mother consented to a search of the residence, the marijuana had been already spotted and seized before she actually consented. 4/

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