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Monthly Archives: January 2021

Valid Search Warrants Dissected

By Peek & Toland on January 29, 2021

We’ve talked in detail about several of our Constitutional amendments, specifically our Fourth Amendment and its protection of our right to feel safe and secure in our own home. But, if you’ve paid any attention to the recent news cycles, you know that no-knock search warrants are a controversial tactic used by police in limited scope and circumstance that absolutely interrupt our sense of security in our home. Though perceived to be a method of search rarely used, statistics show that 60,000-70,000 no-knock warrants are issued each year, and the recent death of Breonna Taylor as the result of a no-knock warrant has really brought this issue into the public arena and proposed legal reform.

This staggering statistic and tragic situation lead us to a broad and continuing discussion about warrants, how to hire a lawyer to contest the validity of an unlawfully obtained or executed search warrant, and your fourth amendment rights under search warrants, which will eventually bring us to what the no-knock search warrant is, how it works, and why it’s so controversial.

Before we dive into no-knock warrants, let’s cover the criteria needed in order to lawfully obtain and execute a search warrant in Texas and review what that ever-important Fourth Amendment guarantees us. To break down the criteria in manner you can easily recall, we can ask: Who? What? When? Where? Why?

Who?

Texas, our Texas! All hail the mighty state! First and foremost, a valid search warrant in Texas must be issued by a state magistrate in the State of Texas. Not Oklahoma. Not New Mexico. Not Louisiana. Not any other state, no matter how much they wish they were Texas. Texas is who has to issue a valid search warrant in this state.

What?

A proper and valid search warrant in the State of Texas must include what it is the police are trying to find. Coming in and ransacking everything in sight didn’t work for King George and his broadly worded search warrants in the 1700s, and it certainly doesn’t fly here today.

When?

We always hear that time is of the essence, and that universal phrase for prompt action is never more important than it is in regard to properly executing a search warrant. Any valid search warrant in Texas should clearly state the date and hour at which the warrant was obtained. Why is that important? The time and date a warrant was obtained is crucial because time is ticking—there’s generally a 72-hour or three-day window to conduct the search defined in a warrant. There are exceptions, though. A 15-day span is given for DNA evidence collection, and technological forensic officers have 10 days to recover data from electronic devices listed in the warrant. As a general rule, the three-day rule applies to restrict stagnant search warrants, and knowing when that warrant was signed is crucial for your defense and to ensure your Fourth Amendment rights weren’t violated.

Where?


A valid search warrant will define exactly where the police are allowed to search—that means it must state, with some specificity, the address or a reasonable description of the property permissible to search if the exact address isn’t known. A proper warrant should say with specificity exactly where it is police officers are allowed to go, and it must narrowly define that area.

Why?


We already covered that the search warrant must include the signature and name of the magistrate who issued the warrant. In addition to that information showing proof the warrant was issued by Texas, the magistrate’s name gives you the information you’ll need to request why you’re being searched. You can specifically request to know what it is the officers swore to on an affidavit that lead to a search warrant being issued.

In a neatly wrapped and memorable nutshell, you know what questions to ask and for what you should look in the event that you ever receive a supposedly valid search warrant in Texas

Of course, there is a lot more to digest in ensuring your Fourth Amendment rights are upheld, and we’ll have a deeper discussion that you don’t want to miss when we break down no-knock warrants. Continue to follow us on social media to keep up with this broadening and important conversation on warrants and why it’s imperative to have trusted counsel in the event of any issues with arrests or questionable search warrants. If you’re in that position now or fear your Fourth Amendment rights might have been violated, please reach out to us here at Peek & Toland.

Posted in Criminal Defense

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Sweeping Reform in Texas | The George Floyd Act

By Peek & Toland on January 27, 2021

Police reform is a hot-button topic, and it’s one that’s recently caused stalemates in our federal legislative process; however, Texas lawmakers have returned to session and are working on the business of state, including enacting new laws. One such law whose progress we are following closely is the George Floyd Act, an incredible sweeping attempt to encapsulate several issues surrounding criminal justice reform that have been recurring for more than 20 years.

Though we all might differ in our personal beliefs, we can appreciate standards of humanity and care, and we can understand the outrage resulting from the events we saw unfold in May 2020 when George Floyd passed away from deadly use of the chokehold, a miscarriage of justice which begs for resolve. The proposed reform measure at hand, aptly named after George Floyd and backed by his family, has four main components to it, so let’s take a look at the meat of it:

We all have the right to breathe

In the wake of George Floyd’s death, a turning point in the discussion surrounding police tactics was the use of chokeholds and whether or not they have a place in our society. We’ve all seen the use of chokeholds in jiu-jitsu, a martial arts practice with a grappling referee who calls an end to a match, and also within combat maneuver tactics designed to kill. During an arrest where there’s no referee to say when and the goal is to detain a suspect for due process, the lethal use of the chokehold is considered controversial and is why so many cities, states, and even countries have already banned the use of this practice. The bans we’ve already seen are purely aspirational, and we can’t count on chokeholds being banned with certainty until an actual law is passed to prohibit the use, and the George Floyd Act would do just that.

 Reciprocal rights are a must

The second component of the George Floyd Act that is gaining traction is the use of reciprocal force. If you’ve tuned into our show or seen some of our previous social media posts, you know that we take seriously self-defense and the notion that you’re only legally and defensibly allowed to use physical force on someone else that is proportionate to the force they excise on you first. These laws are often argued in assault cases, but they currently do not extend to police officers. The George Floyd Act would restrict police officers from using unnecessary, disproportionate force while making arrests. Opponents of this portion of the act argue that it will leave officers in jeopardy and without means to arrest persons suspected of criminal activity; however, it does not create a void in police response, but more so requires that officers continually monitor and assess their situation as they subdue a suspect and to constantly try and exercise de-escalation techniques to restore the peace and humanely perform their duty.

Walk it off

The third component of note here has less to do with physical force and more to do with acknowledging that some crimes require no force at all, as not every misstep calls for an arrest. The proposed George Floyd Act would recognize that fine-only offenses, your Class C crimes that don’t include a statutory element of jail time, are better suited for ticketing instead of an arrest. Allowing citizens to walk instead of placing them under arrest unnecessarily would exponentially decrease the risk of excessive force by police.

Throwing out the “bad apples”

The fourth component of great importance that is part of the George Floyd Act would place on officers an affirmative duty to step in and either stop excessive force, minimize it, call for help, and report it. Just as the bystander law in Texas which requires action from citizens when they view emergency situations, this concept would make law officers beholden to the same duty that we demand from citizens.

There is so much to unpack with this proposed legislation that we will continue to closely monitor in the hopes that many of our state’s and nation’s concerns will be resolved. I will conclude this heated but important discussion with a reminder to reach out to a trusted criminal defense attorney if you ever have any questions about or are involved in a criminal issue, and continue to check in with us on social media, as we are dedicated to sharing the crucial information that affects our clients and society.

Posted in Criminal Defense

The Differences Between Peaceable Assembly and Riot, and How You’re Protected

By Peek & Toland on January 21, 2021

“Congress shall make no law…” Most Americans can quote that line from the First Amendment, as that amendment to the constitution encompasses the most basic liberties we hold near and dear in the United States, but what is really guaranteed and protected by this amendment, and where is the line when it comes to our right to peaceable assembly?

Blurred lines

While there are some blurred lines and varied interpretations of our First Amendment right to assemble peaceably to express our beliefs, there are some pretty firm rules concerning this amendment in the State of Texas.

No matter your political leanings, we all need to be aware of our rights and the laws concerning those rights if we decide to exercise our right to free speech and peaceable assembly. To that end, it’s also incredibly important to understand how to avoid a riot and avoid being criminally liable should you end up being involved with a riot. To better understand what is allowed in protesting, we need to know what is not permissible; so, let’s dive in to four laws concerning peaceable assembly in the State of Texas.

  1. So, what exactly is disorderly?

The laundry list of actions or activities covered under disorderly conduct is quite broad, to say the least, but there are a few big standouts for violations deemed as disorderly conduct:

  • Watch your language – Engaging in any type of language, obscene gestures, or physical and furtive movements designed to incite a breach of the peace is considered to be a violation.
  • Nix the tactical tools – In Texas, especially, we’re proud of our right to carry firearms. You’re well within your rights to carry; however, presenting a gun in a way that instills fear of safety if you use it in a manner that interferes with others’ civil liberties, you’re looking at criminal charges. While responsibly carrying your firearm for protection is acceptable, you’ll need to leave any smoke bombs at home.
  • Location! Location! Location! – Time restrictions and permits to peacefully assemble are common sense when planning to protest, but did you know there are definite restrictions on where you can peacefully protest? Gathering at a funeral with intention to protest is strictly prohibited, as is peaceable assembly near critical infrastructure, which includes pipelines, natural gas, and oil. In order to obstruct a road or highway with your assembly, you’ll need one of those permits I mentioned.

2. What’s on the books about riots?

In the State of Texas, riots are specifically defined in our penal code as seven+ people gathered and engaged in an activity that is absolutely designed to or results in prohibiting others from engaging in their civil liberties. “Your rights end where mine begin” is an adage on which we rely in the U.S., and respecting the rights of others is just as important as asserting your own rights. Always remember that when your passions and emotions run high enough to take a stance.

3. You have an out!

So, you’re aware of others’ rights, and you know what not to do when you protest, but what happens if other protestors aren’t aware of the restrictions on riots and you inadvertently end up in a riot instead of a peaceful protest? It can happen in what seems like an instant, but the good news is that you have a way out of being held criminally liable should you end up in a riot without intending to be. Your “get out of jail free” card comes in knowing that the police need to first give you the opportunity to remedy the situation and remove yourself from destructive or intrusive action before they can arrest you.

4. Watch your step!

In the State of Texas, it’s very clear under the code that you are not allowed to disrupt in any way, shape, form, or fashion a lawful meeting. What does that mean? It means you’re completely covered by the First Amendment to peacefully protest outside of a city council meeting or beyond the perimeter of the U.S. Capitol during an active session, but you are not permitted to protest with the sole purpose and design of stopping the governmental function. So, feel free to stand your ground, but make sure the ground on which you stand is outside of and in no way interrupts a lawful event.

These are just a few takeaways to consider before stepping out and standing up for what you believe, especially in the current heated political climate. If you have any questions about your rights or need to consult an experienced advocate to guide you through your defense, we’d love to help. Please tune in to our updates every Wednesday, and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

Posted in Criminal Defense

Can CBP Search My Electronic Devices?

By Peek & Toland on January 20, 2021

In the U.S., we’re quite proud of the Fourth Amendment, which protects us from unreasonable searches and seizures, but are we always able to invoke those rights of protection when it comes to searches and confiscation of our electronic devices? The short answer here is that invoking your Fourth Amendment rights is always encouraged, but it might not always be honored, especially at the border and airports. If that doesn’t sound like a clear answer, that’s because it’s not. There are several factors that go into protecting your devices and your private information they hold. Let’s take a high-level look at that.

Why should I care?

You may think you’re immune to unwarranted searches and seizures, but the sad truth is that anyone carrying cell phones or laptops across the border or through the airport is at risk to have their personal items searched and possibly confiscated. You also may be wondering how often those types of searches even occur, and you’ll probably be as shocked as I was to learn that Customs and Border Protection (“CBP”) performed over 40,000 searches of cell phones and laptops in 2019. With our devices tracking our every move, habit, and some may even say our every thought, it’s no wonder why the numbers of these types of searches continue to climb. Our electronic devices are ripe with information that legal enforcement officers would love to see, and they readily and warrantlessly do it, whether you’re a U.S. citizen or not.

Wait, how can this be?

The government has long maintained that our Fourth Amendment protections against warrantless searches hold no power at the border, but that doesn’t mean we’ve all accepted that as the end-all, be-all truth. In fact, there are several recent cases that put unlawful searches to test, including Riley v California, a Supreme Court case in which the Court unanimously determined that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. While that sounds like a clear case of “no warrant, no phone,” there’s something referred to as border search exception, which claims exception to that ruling at border crossings due to a heightened need for security and high demand to search for contraband, even if there is no reasonable suspicion of nefarious activity. That doesn’t mean you have to accept that practice as part and parcel of border officials working to make the U.S. a safer place.

So what can I do to protect my private information on my devices?

As the courts continue to argue this far-from-settled issue, I can offer you a short answer to the initial question of whether or not a CBP officer can search and seize your electronic devices without a warrant or reasonable suspicion: sadly, yes. If you ever find yourself in such a situation, you could and should assert your Fourth Amendment rights of protection from unlawful searches and ask what the reasonable suspicion is for the search. While they’ll likely still search your devices if they’re so determined, you’ve established your rights and set yourself up for success in any lawsuit you file to reclaim your property.

I understand that those options, or lack thereof, are not very comforting, especially when you’ve not done anything wrong, or even if you have. It’s quite controversial, and we hope the courts will definitively sort this out with the right decision on those unlawful border searches. Until then, if you experience any search issues, criminal violations, or immigration needs, and you need an expert to handle those, please call us here at Peek & Toland. We’d love to help.

Posted in Immigration

Asserting your Sixth Amendment Rights Under COVID-19 Restrictions

By Peek & Toland on January 8, 2021

I’ve discussed in previous blogs some portions of your rights that are guaranteed under the Sixth Amendment, and there’s more to unpack as we attempt to maintain our rights in court while living under the changing COVID-19 restrictions.

What’s at risk here?

One of the most fundamental rights guaranteed by the Sixth Amendment, a right whose violation can drastically affect the outcome of your criminal case, is the right to confront and cross-examine your accuser and witnesses who are testifying against you. Appearing in person and being able to look witnesses in the eye is a basic right with foundations dating back to the very origins of our legal system in Rome and England, so I don’t speak lightly when I stress the importance of maintaining this right as you navigate the criminal courts.

Why is the Confrontation Clause important to me?

In the United States, you are guaranteed the right to confront, face eye-to-eye, and engage with your accuser or anyone offering testimony against you in an attempt to test their credibility. This understandably becomes an issue in the age of COVID-19 restrictions that affect travel, capacity restrictions, and whether witnesses are willing to appear in public places.

We look to a Texas case in the Court of Criminal Appeals to demonstrate the importance of asserting your full Sixth Amendment rights. Though recent, the decision in discussion and the rationale behind it occurred prior to the COVID-19 restrictions.

A high-level review of this case, in which a nurse practitioner conducted an exam that resulted in physical evidence and testimony against a defendant, is demonstrative of how the right to confront your accuser in person can completely shift the direction and outcome of your case.

As a result of the physical evidence and nurse practitioner’s testimony, the State needed to introduce evidence and the account; however, the nurse practitioner had recently moved out of state and was unwilling to return to Texas to testify in person. Despite this witness’s unwillingness to return to testify in person, the judge hearing this case astonishingly allowed this witness to appear via video and deemed the collected physical evidence permissible. As a result, the Defendant was convicted but was able to fight the conviction in the Court of Criminal Appeals.

This brief account is not simply anecdotal—it provides three very important factors that were key to the decision made, key factors that are takeaways you can apply moving forward in the courts in the age of COVID-19:

Subpoena! Subpoena! Subpoena!

Our first takeaway from this case to note is how perturbed the Court of Criminal Appeals was by the attorney who did not subpoena the witness in question. If you are facing criminal charges, make certain that your attorney subpoenas all of your witnesses. Doing so introduces the threat of contempt and subsequent punishment to any witness unwilling to appear, and it helps ensure the right to confront a witness.

What gives?

Never hesitate to challenge or question the reasons a witness gives for resisting their appearance in court. Your confrontation clause rights allow you to demand a witness appear, despite any fears of COVID-19—it’s perfectly acceptable to remind that judge that the courtroom being safe enough for some means it is safe enough for witnesses to appear. Feel free in your rights to ask what safety procedures are in place if the courts adopted face mask requirements, and whether or not they are respecting the six-feet minimum distance guidance to assert your right to have witnesses appear in person.

Demand swift justice

Another important aspect of this to remember is that you must continually assert your right to a speedy trial. Despite executive orders, gubernatorial decrees, and country restrictions due to the pandemic, you still have every right to a speedy trial and to not linger in limbo waiting months on end for your time in court. You must let your attorney know that you assert your rights to a speedy trial and refuse to agree to anything that attempts to deny your right to speedily complete your case.

Your Sixth Amendment rights covered here are so fundamental to your receiving a fair trial during the pandemic, which is all the more reason for you to have an experienced attorney who knows how to assert those rights and apply facts and arguments that will help support you.

If you have any questions about your rights or need a trusted advocate for your defense, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance.

Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

Posted in Criminal Defense

Does the Pandemic Affect My Constitutional Rights?

By Peek & Toland on January 1, 2021

In the United States, we take immense pride in our criminal justice process and wholly depend on our constitutional rights to ensure justice and objectivity when facing accusations and criminal charges. It is a common rationale that nobody, not even the government, can strip from us those rights guaranteed by the Constitution; however, there are certain circumstances in life that can affect those rights, and the COVID-19 pandemic is one of those events currently having a negative impact on our Sixth Amendment rights.

https://youtu.be/KVKFMAnHaTo

How am I to appear in public?

Before COVID-19 hit the U.S., appearing in public places was not really considered a luxury. Now, though, the threat of this virus has placed more burden on us than just limiting our holiday gatherings and restricting our ability to see movies in the theater. With a long-standing backlog in criminal courts and new, ever-changing COVID-19 restrictions, court administrators are grappling with how to keep up with cases while also ensuring our Sixth Amendment right to a public proceeding. Appearing in public for a hearing is one of our nation’s bedrock principles. Anything that interferes with that is a major issue with which to contend, in addition to fighting criminal charges and accusations you may face. To combat the restrictions on our courts and public assembly, many judges have turned to live-streaming hearings, including creating dedicated YouTube channels and Zoom meetings. Of course, as we’re all aware by now, these virtual hearings come with their own set of complications, including hackers and technological interruptions. Who doesn’t love a good laugh at someone forgetting their mic is on during an inopportune time? But when it comes to fighting criminal charges, these technological issues are no laughing matter, especially when they interfere with the very foundations of our criminal justice system.

What does speedy mean in the era of COVID-19?

Another aspect of our Sixth Amendment right on which COVID-19 is wreaking havoc goes hand-in-hand with a public trail, and that is your right to a speedy trial. As mentioned, and widely reported, court systems are overburdened with a backlog of cases. Fighting for your Sixth Amendment right to an expedited hearing was a battle to fight prior to COVID-19. It’s now more important than ever to have an experienced attorney in your corner to ensure your rights are upheld in the chaos of COVID restrictions on our courts. In the State of Texas, speedy, in court terms, is generally held to be eight months, as a minimum. This, of course, is provided your attorney files on your behalf a speedy trial motion and consistently maintains your position that you would like to proceed forward with trial. Executive orders and any gubernatorial orders that relegate the performance of our court systems weigh heavily on the ticking of that speedy trial clock and can definitely work to your disadvantage. You must have an experienced attorney to reassert your Sixth Amendment rights, even if the judge overseeing your proceeding appears to be powerless as a result of city, county, or state restrictions related to the pandemic.

What about my right to confront those accusing me?

If we’re concerned with public gatherings, travel, and the ability to appear in public hearings, it is only logical that our right to confront those with evidence against us is also in jeopardy, along with the other guarantees of the Sixth Amendment mentioned here. In addition to who can appear in our courts during a pandemic and how, we’re also left contemplating how safety measures affect our right to face our accusers. How will a judge, jury, witnesses, and attorneys wearing a mask challenge our Sixth Amendment right to a confrontation? Could this be the veil of secrecy about which our forefathers warned us when fighting to ensure our rights? What safety protocols can survive our constitutional rights? These questions have left our legal scholars scrambling for answers, so you certainly shouldn’t be left alone to contemplate and ensure your rights.

While governors’ orders and safety restrictions may be at odds with our Constitution, we know that removing the right to a confrontation and a speedy, public trial would, in fact, require a constitutional amendment. Until then, the court systems place the burden on you to ensure your rights are upheld and justice is within fair reach throughout your proceedings, even during a pandemic. There’s absolutely no reason for you to ever wage that war on your own.

At Peek & Toland, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance. Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

Posted in Criminal Defense

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