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Monthly Archives: March 2018

When is a Warrantless Police Search Allowed in Texas?

By Peek & Toland on March 30, 2018

Police officers usually require a warrant to search your property. However,  some cases, a warrantless police search may not be unlawful under the Fourth Amendment.

An article on the website of the Texas District & County Attorneys Association points out today’s law on searches and seizures is largely the result of more than 200 years of judicial evolution.

The law has changed. While a police officer’s subjective intent in making a traffic stop does not matter today, it was relevant a quarter of a century ago.

Warrants are favored for a number of reasons, namely:

  • The officer or the prosecutor who drafts the warrant is able to highlight the facts and draft a statement of probable cause with care.
  • A magistrate reviews the information from the prosecutor or the police officer before deciding to issue the warrant.
  • If a case goes to the court with a warrant, there is a clear presumption that the search and seizure was lawful.

The Supreme Court has, however, ruled that police may conduct a warrantless search and still be in compliance with the Fourth Amendment if it is reasonable under the circumstances. The exceptions made to the Fourth Amendment’s requirement for a warrant reflect the Supreme Court’s reluctance to impede the job of law enforcement officials unnecessarily.

When is a Warrantless Police Search Justified?

When a Warrantless Police Search is Legitimate

In some cases, it’s not practical or desirable to force an officer to stop what he’s doing to get a warrant, the Supreme Court ruled.

When a Warrantless Police Search May be Reasonable

There are a series of scenarios in which a warrantless search may be deemed reasonable. They include:

A Search for Weapons.

If a police officer reasonably believes criminal activity is going on in a public place, he is allowed to stop a suspect thought to be involved in criminality and to conduct a limited search of the suspect’s outer clothing for weapons that could be used against the officer. A police officer may also ask for identification. They suspect is under no obligation to produce it.

A Felony Arrest in a Public Place

A warrantless search may take place during a felony arrest in a public place, even if the arresting officer has sufficient time to obtain a warrant. Felony arrests in places not open to the public typically do require a warrant, unless a police officer is involved in the “hot pursuit” of a fleeing felon. If a misdemeanor is committed in the presence of an officer, the Fourth Amendment also allows a warrantless arrest.

Exigent Circumstances

Exigent circumstances may justify warrantless searches, seizures, and arrests. To evaluate whether exigent circumstances justified the conduct of an officer, a court must review all of the circumstances. The courts consider the seriousness of the underlying offense and whether a suspect was seeking to escape the scene. Screams, shots or a fire in a building have met the test of exigent circumstances under the Fourth Amendment’s warrant requirement.

Protection of Life

In the case of Warden v. Hayden, the Supreme Court justices held the entry into a residence by police officers chasing an armed robber was justified. Any delay to secure a warrant would endanger the lives of others. The information must be fairly specific and direct in these cases. Merely investigating a potential danger is unlikely to meet the protection of life exception.

Community caretaking

Community caretaking is a variant on the exigent circumstances doctrine. It allows a peace officer to stop someone when the officer reasonably believes that person needs the officer’s assistance.

This exception is relevant when officers investigate vehicle collisions. A police officer does not need a basis to believe the suspect is taking part in or about to engage in any criminal activity under the community caretaking stop doctrine.

The issue of police stops and warrants is a complicated one. Please call our experienced Texas criminal defense team for more help and assistance. Call (512) 474-4445.

Posted in Criminal Defense

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President of Motorcycle Gang Died After Texas Bar Shooting

By Peek & Toland on March 29, 2018

Fights between rival motorcycle gangs occur all too frequently in Texas. This was illustrated in the summer of 2017 when a president of the Bandidos Motorcycle Club died after a shooting in an east El Paso bar.

A report on Fox 14 noted Juan Martinez, 61 was the president for one of the three El Paso chapters of the club, according to the El Paso Motorcycle Coalition. Police referred to the incident as a rival gang shooting.

Originally, four people were reported injured in the incident. Juan Miguel Vega-Rivera, 36, Ballardo Salcido, 49, and David Villalobos, 47, were also injured in the shooting.

Texas bar shooting claims life of biker gang leader

Texas bar shooting claims life of biker gang leader

The shooting occurred on a Sunday night in late July at the Mulligans Chopped Hog bar. The bar was closed for seven days, following the shooting after a license suspension was imposed on it.

Trouble flared when one of the rival groups was told to leave the bar, police said. This caused an argument and a fight between the two rival gangs.

In the midst of the fight, a man with a gun walked into the bar and started shooting at members of the rival gang, police said.

Police later arrested Javier Gonzalez over the incident. They said he is a member of the Kinfolk Outlaw Motorcycle Gang.

Fights between rival motorcycle gangs are not unusual in El Paso.

Last year, Martinez was arrested after a fight outside a business on Zaragoza Road.

Martinez, along with the Bandidos Motorcycle Club sergeant at arms James Heredia and its secretary Thomas Decarlos, were accused of attacking another motorcycle group with clubs and bats.

The Bandidos Motorcycle Club was also involved in one of the most serious incidents in recent years when a gunfight broke out in a bar in Waco in 2015.

The Bandidos and the rival Cossack gang were involved in the fight. At the end of the fight, 20 people were injured, and seven members of the Cossacks, one member of the Bandidos and a biker not affiliated with either group were lying dead.

The trial in the biker shootout has yet to be held and prosecutors were accused of indiscriminate arrests. You can find out more about murder charges here on our website. Call our Austin criminal defense lawyers at (512) 474-4445.

Posted in Criminal Defense

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More than A Year After the Travel Ban The Issue is Mired in Court Proceedings

By Peek & Toland on March 28, 2018

President Donald Trump’s travel ban first issued in January 2017 caused widespread confusion and panic at airports. More than a year after the travel ban, the issue is still bogged down in the courts.

The Supreme Court is likely to finally weigh in on the legality or otherwise of the ban this year.  It allowed the executive order to fully go into effect in early December while federal judges in the U.S. Courts of Appeal for the 9th and 4th Circuits mull whether to halt enforcement of the third travel ban.

The Trump administration issued revised bans throughout 2017. They were routinely challenged.

In November, the Trump administration asked the U.S. Supreme Court to fully enact the travel ban after an appeals court in California ruled that only parts of it could go into effect.  The White House argued the latest ban “is based on national-security and foreign-affairs objectives, not religious animus,” according to Reuters. 

Courts are involved a year after the travel ban

More than a year after the travel ban uncertainty remains

A ban that was announced on Sept. 24 replaced two previous bans that were blocked in the federal courts.

The administration won a partial victory in November when the three-judge panel from the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled the Trump administration could bar the entry of people from six Muslim-majority countries with no U.S. connections.

The court ruled the administration’s travel ban would only apply to people originating from Iran, Libya, Yemen, Syria, Chad and Somalia with no connections to the U.S.

The administration’s latest ban was announced on Sept. 24, replacing two previous versions that had been blocked by federal courts.  North Korea and Venezuela were added to the ban.

However, many of those the administration sought to ban have connections to the United States.

The connections are defined as relationships linked to families and formal, documented relationships with American entities like universities and resettlement agencies.

People with family relationships permitting entry to the country include grandchildren, brothers-in-law, grandparents, sisters-in-law, aunts, uncles, nieces, nephews and cousins of people living here in the United States.

Trump’s first travel ban targeting a group of Muslim-majority was issued just a week after he took office in January. He issued a revised six-month plan after the first ban was blocked by the courts. The second one expired in September following a protracted legal fight and was replaced with another revised version.

Also in November, an internal watchdog report detailed the chaos and lack of planning inherent in the first travel ban.

A report by the DHS inspector general revealed that the leaders of Customs and Border Protection, the federal agency mean to implement the order had virtually no warning an order was to be issued or of its scope and was “caught by surprise,” NPR reported.

The early hours of the travel ban were marked by airport protests, along with delays and confusion until a court injunction was imposed, reported NPR.

If you have been impacted by a travel ban, you should consult an experienced Austin immigration lawyer. Call us at (512) 474-4445.

Posted in Immigration, Immigration Reform

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Why Non-Immigrant Visas Were Suspended Between the U.S. and Turkey

By Peek & Toland on March 27, 2018

When diplomatic disagreements break out between the United States and other countries, the issuing of non-immigrant visas may be suspended.

In October 2017, the United States announced it was suspending non-immigrant visa services at diplomatic facilities in Turkey after the arrest of a consulate employee. Turkey retaliated by halting visa services in the U.S. The United States resumed processing of visas on a limited basis the following month.

A report on Fox News noted the U.S. Embassy in the Turkish capital of Ankara said recent events forced it to reassess the commitment of the Government of Turkey to the security of American personnel and facilities.

The suspension of visas applied to e-Visas, visas issued at international borders and visas in passports.

The action followed an arrest linked to the recent coup in Turkey. Authorities arrested a U.S. Consulate employee of Turkish nationality claiming he had links to U.S.-based cleric Fethullah Gulen. The government in Ankara blames the cleric for last summer’s failed coup. Gulen denies he was involved.

Suspension of no immigrant visas with Turkey

Non-immigrant visas with Turkey were suspended

Turkey has accused Metin Topuz of espionage and seeking to overthrow the Turkish government and constitution.

A month after visas were suspended in November, the United States embassy in Ankara announced it would resume processing non-immigrant visas for Turkish nationals but only on a limited basis.

The embassy said on its website the security situation had improved.

Non-immigrant visas include tourist, student, media and work visas. The embassy announced it would process the visas “on a limited basis.”

Turkey was not the only country the U.S. suspended non-immigrant visas from in 2017.

In August, the United States said it was forced to suspend nonimmigrant visas in Russia after President Vladimir Putin ordered it to reduce hundreds of diplomatic staff, NBC reported.

The U.S. Mission to Russia canceled all of its appointments in Moscow up to Sept. 1 because of reduced staffing levels.

The U.S. Mission said outside Moscow, at consulates in St. Petersburg, Yekaterinburg, and Vladivostok, visa operations would be suspended indefinitely.

Obtaining visas to come to the United States can be a complicated process that’s not helped by diplomatic spats. Our experienced Texas visa immigration lawyers can help you with the process. Call us at (512) 474-4445.

Posted in Visas

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Government Announces New Restrictions on H-1B Visa Renewal Process

By Peek & Toland on March 26, 2018

Over the year since the Trump administration came to power the H-1B visa came under increased scrutiny. Restrictions were put in place over the expedited process in 2017. The government has also announced restrictions on the H-1B visa renewal process.

In October 2017, a new level of scrutiny for these visas for skilled workers was announced. U.S. Citizenship and Immigration Services advised its officials to apply the same level of scrutiny to requests for extensions of the H-1B visa, as the department does to other sought-after visas.

A CNN report noted officers will be told to review requests for renewal as thoroughly as they would review initial visa applications.

The H-1B is highly prized by the tech community. Every year, 85,000 visas are issued to skilled foreign workers. India supplies the most workers for the visa.

restrictions on H-1B visa renewal

H-1B visa renewal restritions

An H-1B visa is valid for three years. It can be renewed for another three years.

While the visa remains very popular and demand outweighs supply, a series of restrictions on the visa were imposed in 2017.

The directive replaces previous guidance, which gave “deference” to approved visas assuming the key elements of the application were unchanged and no evidence like a material error or fraud related to the prior determination was forthcoming.

The new guidance came at a time when the future of the H-1B visa was under review.

In April, the visa came under scrutiny as part of President Trump’s “Buy American, Hire American” strategy. An executive order included proposing new rules and guidance to stamp out fraud and abuse of work visas.

Trump has eyed the program for reform. He criticized abusers of the program who he accused of using the visa to replace American workers and undercut them.

The H-1B visa is not the only one impacted by the new renewal policy guidance.

Other visas impacted by the new rules include L-1 visas, for intracompany transfers, TN for Mexican and Canadian citizens, and O-1, for those with “extraordinary abilities.”

Opponents of the move fear it will inflict new and unnecessary burdens on the process.

Betsy Lawrence is the director of government relations for the American Immigration Lawyers Association.

She told CNN the previous guidance allowed cases to be reviewed efficiently. However, there were safeguards. USCIS retained the authority to question former decisions and to request additional information in reviewing extensions.

By this interpretation, the new rules could prove to be bureaucratic and to hold up applications.

Our Austin immigration lawyers can answer all of your questions about visas. Please call us at (512) 474-4445.

Posted in Immigration, Visas

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Visa Difficulties Starves Rural North Texas of Doctors

By Peek & Toland on March 23, 2018

Many parts of Texas suffer from a shortage of doctors. At the same time, there is a large pool of well-trained overseas doctors willing to work in the United States. Visa difficulties often bar them coming to Texas.

Doctors from counties like India perform a valuable role in parts of Texas. The shortage of medical professionals is particularly acute in rural areas.

The Dallas Magazine interviewed Dr. Arun Badi. The native of India arrived in this country in 1999 on a student visa.

He had a medical degree by the time he was accepted at the University of Utah to study for his Ph.D. In Utah, he continued his research on ear, nose, and throat and sleep medicine.

Badi conducted complex research with his American peers in Utah, He was able to remain in the United States on an E-B1 visa that grants employment-based, permanent residency here. He was sponsored in 2001 by the National Institutes of Health.

visa difficulties affect Texas doctors

Visa difficulties impact Texas doctors

Badi wanted to move to Dallas because of the warmer climate. He also wanted to specialize in sleep medicine. He now owns and runs a sleep clinic in Texas.

The success story of the Indian doctor is not typical. Although some foreign-born physicians receive permanent work visas to practice in North Texas, many others lose out.

Dallas Magazine reported many capable foreign physicians are not able to work in the United States, despite the current shortage of doctors in Dallas-Fort Worth.

It cited a report in 2015 by Merritt Hawkins, a search and consulting firm. The report notes there are 12,938 physicians in North Texas. The area has an average of 202 physicians per 100,000 residents.  That is below the World Health Organization national average of 226 physicians per 100,000 residents.

The report states more than 1,500 more doctors would need to be practicing in the Dallas area to make up the gap. In Dallas, the shortage of doctors contributes to the current wait time of approximately 10.2 days for patients to be seen by a physician, the report points out.

At present, about 30 percent of practicing doctors in Dallas and Fort Worth are foreign-born.

Scott Edwards, president of Adaptive Medical Partners, a physician placement firm in Irving, said the demand for physicians in Texas outstrips the supply. He said:

“Texas is the second-most populous state in the country, but we’re ranked No. 45 in physicians per capita.”

The difficulty in obtaining visas for medical workers has exacerbated shortages in certain parts of the country.

The United States is facing a shortage of 46,000 to 90,400 doctors by 2025. Primary care is taking the biggest hit.

Pay rates in primary care are lower than in other specialties. From 2000 to 2004, for example, the median income rose by just 10 percent in the primary care field compared to 16 percent for non-primary specialties.

If you require help in applying for a visa, contact our Austin immigration lawyers today at (512) 474-4445.

 

Posted in Immigration, Visas

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San Antonio Violent Crime Surge Attracts New Resources

By Peek & Toland on March 22, 2018

Violent crime and gang activity is rising in San Antonio. Now Texas Governor Greg Abbott has announced extra resources to tackle the San Antonio violent crime surge.

In October, Abbott announced the San Antonio Police Department’s Violent Crimes Task Force will get additional help to fight violent crimes and gangs, reported ABC12.

The announcement followed a double-digit growth in violent crime in recent years, one of the largest in any Texas city.

San Antonio violent crime surge

San Antonio violent crime surge alarms politicians

San Antonio saw a massive rise in homicides in 2016. San Antonio reported 149 murders and non-negligent manslaughter cases to the Federal Bureau of Investigations that year. In 2015, San Antonio officials reported 94. According to the data, San Antonio saw a 58 percent increase year-on-year. It was one of the largest in Texas.

The city saw a large increase in many violent crimes as well as some property crimes.  It experienced a rise in known offenses like murder and non-negligent manslaughter cases, robberies, rapes, aggravated assaults, burglaries, larceny cases and thefts as well as thefts of cars.

San Antonio Police Chief William McManus confirmed the department would take up Abbott’s offer. He said:

“I don’t know that we needed help. We certainly welcomed the help. So it’s not, ‘Why now?’ It was an offer that was made, and I readily accepted it.”

McManus said the extra resources will not go to any particular part San Antonio. It will be directed to where it’s needed.

The task force will be taken where crime activity dictates, he said. It can be anywhere in the city. McManus said the extra money will increase police visibility and allow officers to cover a greater area of the city.

McManus said a lot of violent criminals and gang members were picked up. Police made 4,100 arrests for violent crimes from the start of 2017 to October, including 400 gang members.

Violent crime rose in many places in 2015 and 2016, including some of the smaller cities in Texas.

If you have been charged with a violent offense, it’s important to hire an experienced criminal defense lawyer. Call us at (512) 474-4445.

 

Posted in Uncategorized

Firing People for Having Criminal Records – Why Texas Wants to Make it Easier

By Peek & Toland on March 21, 2018

It’s tough to get back on your feet if you have a criminal record. It may become even tougher in Texas if the state is successful in winning a legal battle to make it easier to fire people with criminal records.

The U.S. Department of Labor says as many as one in three people have a criminal record. The Equal Employment Opportunity Commission does not allow discrimination against people based on their criminal records. However, Texas is seeking to circumvent this requirement.

Recently, The Nation reported on how the Lone Star State wants to make the process of firing people with criminal records considerably easier.

More than five years ago, the EEOC passed enforcement guidance that said Title VII of the 1964 Civil Rights Act forbids blanket employment discrimination of people with criminal records. This was seen as a potentially discriminatory policy. The EEOC said black people are six times more likely to have served time in prison than whites and people from impoverished communities of color are more likely to be convicted of crimes.

Firing people with criminal records

Texas seeks to make it easier to fire people with criminal records

The new guidance was passed by a bipartisan vote, noted The Nation. Hiring policies that impose blanket prohibitions on candidates with a criminal record discriminate against minorities, the politicians said.

The EEOC wants employers to give employment candidates individualized assessments and look at pertinent factors like the seriousness of the crime, the time since the crime and whether rehabilitation was successful.

Notwithstanding the EEOC stance, a criminal conviction is still a major bar to employment.

The article in The Nation noted Texas challenged the codification of these standards in federal law.

More than four years ago, Texas attorney general and present Governor Greg Abbott filed a suit to block the EEOC order.

Abbott sought a declaratory judgment from a federal court that would permit state agencies to deny employment to people with criminal records. Abbott wanted to prevent the EEOC from issuing right-to-sue letters, the form of legal notification the agency issues when officials see grounds for a discrimination claim.

The lawsuit was dismissed only to be revived by the US Court of Appeals for the Fifth Circuit in June 2016, The Nation reported.

Texas is bound by Title VII. However, because the State of Texas hires people it has a right to challenge the guidance in court.

Last August, the NAACP Legal Defense and Educational Fund and the National Employment Law Project, filed a motion to intervene in the case.

They raised the case of Beverly Harrison, a woman from Dallas who was stripped of her job as a crossing guard because of a previous criminal conviction. They sought to add Harrison as well as the Texas Conference of the NAACP as new parties in the litigation. Lawyers sought to be able to defend the guidance in court.

US District Judge Sam Cummings denied the motion. The EEOC and Department of Justice promised to “vigorously litigate” the case.

Fears remain that it will become easier to fire people with criminal records in Texas.

The NAACP believes the Trump administration likely will not defend the EEOC’s ruling.

A criminal conviction can ruin your career prospects and be a stain on your future. In some cases, records can be expunged. Call our experienced Austin criminal defense lawyers at (512) 474-4445.

 

Posted in Criminal Defense

Why Police Shootings Seldom Go to Trial

By Peek & Toland on March 20, 2018

Police shootings make for graphic headlines but they seldom go to trial and end in convictions even more rarely.

America has been hit by a series of fatal shootings of unarmed black men in recent years, sparking demonstrations and concern over police use of lethal force. Notwithstanding several high-profile cases and more video evidence, convictions are rare.

Darren Wilson, the police officer who shot Michael Brown in Ferguson, Missouri in 2014, was not indicted by a grand jury, a decision that sparked civil unrest.

It set the pattern for other killings of black men in cities like Baltimore and New York.

One researcher at Ohio’s Bowling Green State University reported as many as 1,000 police shootings occur every year in the United States and black men are three times as likely to die from police force.

A CNN report noted from 2005 to April 2017, 80 police officers were arrested on murder or manslaughter charges for on-duty shootings.

police shotings

Police shootings seldom end up in court

Over those 12 years, 35 percent of the officers were convicted. The rest were pending or not convicted, according to work by Philip Stinson, an associate professor of criminal justice at Bowling Green State University.

In 2017 in Austin, the Travis County District Attorney Margaret Moore confirmed a jury would not hear the case of Morgan Crocker, a man who was shot dead by police in 2016.

Two police officers shot Cocker who police said fired at them with a handgun.

Moore determined that credible investigative facts established each officer’s use of force was “justified under applicable Texas law.”

The 34-year-old Crocker died on Sept. 15, 2016, from injuries he sustained after exchanging gunfire with two officers, Bernardo Ramirez, and Brett Fritz and at the Sedona Springs apartments in Southwest Austin.

Police encountered Crocker as they investigated reports of a suspicious person looking into vehicles at the apartment complex.

Fritz initially fired a stun gun to slow Crocker during a chase. However, Crocker removed the prongs before falling to the ground, according to the district attorney’s office.

More officers including Ramirez arrived at the scene. They heard Fritz telling Crocker to show his hands. Crocker is then said to have rolled over and pointed a handgun at officers before firing several rounds.

Police opened fire and Crocker died of his wounds. It was the fourth police shooting case in Austin in 2016 that did not lead to any proceedings against the officers, The Statesman reported.

Cases elsewhere in the United States proved more controversial. In the same year, Philando Castile, 32 from Minnesota was fatally shot while at a traffic stop by police officer, Jeronimo Yanez.

Castile’s girlfriend, Diamond Reynolds, live-streamed the confrontation and said Castile was reaching for his identification when he was shot.

However, a jury found the police officer not guilty of second-degree murder in the shooting death.

At Peek & Toland , we defend suspects charged with a wide range of crimes. See our frequently asked questions and call us at (512) 474-4445.

 

Posted in Criminal Defense

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Student Visas Clampdown is Questioned by Oracle CEO

By Peek & Toland on March 19, 2018

The Trump administration implemented a crackdown on a wide range of visas in 2017. One CEO has taken issue at the student visas clampdown.

Mark Hurd is the co-CEO of Oracle Corp. He said he does not understand immigration policies of the Trump administration that make it difficult for people from foreign counties to work in the United States after earning an education in the U.S.A.

In the summer of 2017, the Trump administration sought to change the H-1B program which is widely used by tech companies. The administration implemented the suspension of an expedited approval process for these visas.

Anger over student visas crackdown

Student visas clampdown draws fire

During a conference, Hurd said it doesn’t make sense not to allow people who have learned their trade in the United States to work here. He said:

“I don’t understand how we let somebody into this country go to our schools, earn degrees and then not allow them to practice the trade that they trained and learned out here in this country and start companies here, pay taxes, have kids.”

While the Trump administration’s “America First” policies take a restrictive view of immigration, Hurd stressed the benefits in answer to reporters’ questions at the Oracle Open World conference.

He described immigration as an “amazing opportunity for us to attract talent and grow our economy.”

Hurd said Oracle Corp hires about 20,000 workers on average every year, Reuters reported.

Studies have concluded immigration, even when unlawful, can have a beneficial impact on the economy of Texas, stated the Texas Public Policy Foundation.

An analysis from the Perryman Group found Texas needs undocumented workers to keep its economy going.

The amount of workers who lack documentation in Texas is roughly twice as the size of the total number of unemployed people who could work. Even if all of the unemployed people filled jobs now held by undocumented workers, the state would be left with a gaping skills gap.

Obtaining a visa can be difficult and complicated. If you are seeking help with a visa issue, please contact our experienced Austin immigration law firm for a consultation at (512) 474-4445.

 

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