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Monthly Archives: February 2021

How to Exclude Evidence if Search Warrant is Unlawful?

By Peek & Toland on February 26, 2021

We’ve covered in great detail the many aspects that go into law enforcement obtaining and executing search warrants and what exactly unlawful searches are. While you may be able to remember and recite all of those important questions regarding lawfulness when being served with a search warrant, you should also remember that unlawful searches are often carried, and evidence against you could be found as a result.

So, what happens if you’re on the receiving end of an unlawful search? What comes of the evidence found through that search? How do you get that evidence thrown out? In addition to having sage legal counsel, there are a couple of aspects to consider when it comes to illegally obtained evidence against you.

 Lack of Probable Cause and an Abundance of Lies

Remember those affidavits we covered? In addition to the alleged crime spelled out in the affidavit, there needs to be probable cause, or a reasonable basis for believing that a crime may have been committed. A search warrant without that and any evidence collected as a result completely violate your Fourth Amendment right, as does an all-out lie from a police officer. We’re not talking about a mistake, but an actual lie that law enforcement used to collect evidence from you in an alleged crime. It happens, and the onus is on you and a competent attorney to make that lie known.

Does protesting this lack of probable cause or law enforcement lies when the unlawful search is conducted mean the search will end and any evidence will be placed back where it was found? No.

These unlawful searches with no probable cause or misinformation are unfortunately carried out often. It’s best practice to reach out to your experienced criminal defense attorney who will begin the process of excluding that illegally obtained evidence against you.

Fruit of the Poisonous Tree

We’ve established that unlawful searches of people and property happen all of the time, which now begs the question of how to remedy the situation and keep that information or illegally obtained evidence out. Thanks to our Fourth Amendment right and Texas’ Exclusionary Rule, an experienced criminal defense attorney cannot only get the search warrant deemed unlawful, but the illegally obtained evidence will be inadmissible. As well, the evidence that the government obtained in violation of your constitutional rights.

There are, of course, exceptions to rules and much to cover with warrants and evidence collection that all play a factor in the success of any criminal case. 

If you have any questions about search warrants or any criminal matters, we encourage you to reach out to one of our experienced criminal defense attorneys at Peek & Toland.

Continue to follow us on social media, where we cover the aspects of criminal defense that are key to preserving your freedom and the criminal justice system’s integrity.

Posted in Criminal Defense

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Radical Changes in ICE Guidelines for Criminal Offenses

By Peek & Toland on February 24, 2021

Fighting a criminal charge in the U.S. is stressful enough, but adding the additional worry of deportation to that battle is even more daunting, especially throughout the Trump administration. Over the last four years, President Trump’s immigration crackdown has been vastly rolled back by the new Biden administration. The U.S. Immigration and Customs Enforcement (“ICE”) is now more flexible with those arrested or charged with a crime. This is wonderful news for undocumented persons here, especially for an undocumented person fighting a criminal charge.

So what does the change in practice and policy mean? What do you do with an undocumented person in jail for a criminal case? How do you get them out? Policy changes don’t change our questions about successfully fighting a criminal case. Still, those changes in policy do mean a change in your defense strategy and new considerations in criminal cases that make it imperative to have a criminal defense attorney who is also practiced in immigration law. Let’s take a look at that.

Reevaluate Your Strategy

A good defense attorney knows the key to overcoming a criminal charge is a well-planned strategy, strengthened by experience and knowledge in our ever-shifting immigration and criminal policies. You might be undocumented and facing criminal charges, or perhaps someone you know is in this situation. It’s imperative to revisit your defense plan in the wake of the new Biden policies. We are now seeing more leniency for criminal offenses committed by undocumented persons. You may have been denied bond previously, but the new reforms mean you could even be released without even having to see a judge. Having an updated strategy from a knowledgeable criminal defense and immigration attorney is key to knowing what changes you need to make to increase your likelihood of remaining in the U.S.

We’re seeing people who were denied bond release from a judge, to now some cases being considered for bond release. 

Down But Not Out

As mentioned, criminal offenses committed by undocumented persons and immigrants are treated quite differently by the Biden administration, and part of that is new consideration of facts in your case. Extenuating circumstances and painting the full picture surrounding a criminal charge were not considerations in the Trump-era ICE practices, but Biden has changed that. A knowledgeable criminal defense attorney who knows immigration will be able to review your case’s facts and present those circumstances that lessen a charge and could lead to release. If you’ve previously thought you had no option in your criminal defense as an immigrant or undocumented person, don’t count yourself out just yet.

 A Foot in Both Worlds

Some may believe ICE’s shift to prioritize threats to national security and public safety means that ICE is no longer aware of immigrant and undocumented criminal offenders, but that is not the case. ICE is still aware you are here, and you are still at risk for deportation. The key to avoiding deportation comes in having an attorney experienced in both criminal and immigration defense. This type of attorney will be better capable of evaluating your case and taking the necessary steps to reduce your charges. Thus, decreasing your chance of being deported and increasing the likelihood of being released from jail.

If you are undocumented or on a pathway to citizenship and face criminal charges, do not risk your future by using a criminal attorney who doesn’t know anything about immigration and vice versa. Do not risk your freedom with an immigration attorney who doesn’t know anything about criminal defense. You really need an expert in both realms, and the experienced immigration and criminal defense attorneys at Peek & Toland are happy to put their 20+ years of experience into fighting for your defense. If you have questions about your case and want to reevaluate where you stand under these new ICE practices, please reach out to us. We’re glad to help. Also, continue to follow us on social media as we discuss these policy changes and strategies that could lead to your freedom and a potential path to citizenship.

Posted in Criminal Defense, Immigration

Knock and No-Knock Search Warrants: What’s Lawful?

By Peek & Toland on February 12, 2021

If you’ve been checking in on our blogs and tuning in to In Your Defense, you know that we are breaking down search warrants and their components. The ability law enforcement has to enter and search someone’s house, phone, and car seems contradictory to the personal freedoms and our right to privacy which is protected under the Fourth Amendment.

There is no question as to how closely and carefully we should monitor search warrants and restrict police access into our personal spaces, so let’s take a look at four factors to keep in mind if the police have obtained a search warrant to access and search your domain.


Knock-knock! Who’s there?

If you’ve paid any attention to the news cycle over the last year, you know that the action of knocking and announcing law enforcement presence with a search warrant for your property can quickly turn into a life-or-death situation, especially in Texas where we proudly own weapons and have the right to defend our castle. For this reason, amongst others, the rule in Texas is that police must knock, identify themselves, and provide the landowner with a copy of the search warrant. That is the general rule, and police are bound to follow it; however, that old saying—for every rule, there is an exception—is true when it comes to the requirements for entry we’ve just discussed here.

So, what’s the exception to the rule?


Typically, no-knock warrants, warrants for which police have no obligation to knock and announce and can just barge into your home, like what happened to Breonna Taylor, are generally deemed to be unreasonable outside of some specific reason. That’s doublespeak for “yes, they can just barge into your home unannounced,” but there must be specific reason for a no-knock warrant to be issued.

One way the police can obtain a no-knock warrant is to explain to the judge or magistrate why it’s so imperative for them to enter a suspect’s home in such a potentially dangerous manner—citing concern that evidence will be lost or destroyed without surprise entry is one way law enforcement gets around that requirement to knock and announce.

Are there instances where a standard search warrant that requires knock and announce could be overridden and carried out as a no-knock warrant? Absolutely, and it can be deemed lawful when the offending officer describes what changed or that their safety was perhaps in jeopardy. This is why it’s of the utmost importance to have sage legal counsel to fight for exclusionary rule or a motion to suppress the evidence obtained from the standard search warrant that suddenly became a no-knock entry on the whims of the police serving and searching your property.

Stay in your lane.

We’ve covered in some detail the parameters for search listed in a lawful search warrant, and the importance of searches remaining restricted by those areas listed in the warrant is something we can’t stress enough. Reviewing those search areas listed in the warrant and defending your Fourth Amendment right to privacy could save you a world of trouble.

Time is on your side.

You can blast that old Rolling Stones tune, “Time is On My Side” when it comes to lawfully executed search warrants. Remember that 72-hour window we discussed? It’s still a morsel of protection that can save you in the long-run. As soon as the judge signs on that dotted line, time starts ticking. Always, always, always review the date and time the search warrant was signed to be sure the police are within the legal period of time to search.

These are just a few of the unlimited requisites that make or break a search warrant. If you have any questions about search warrants, if you’ve been served with a search warrant, or if you’ve been arrested or charged and a search warrant is at issue in your case, reach out to us immediately so we can fight to exclude any evidence unlawfully obtained.

Keep following us on social media, and continue to check in on our blogs, especially in our next discussion that will encapsulate the ways to exclude evidence against you.

Posted in Criminal Defense

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Sworn Truths that Make a Lawful Search Warrant

By Peek & Toland on February 5, 2021

If you’ve been keeping up with the news cycle and our coverage of proposed police reform, you know the topic of conducting lawful arrests is quite prevalent right now. To expound upon our recent discussion of search warrants, let’s take a closer look at warrants and, specifically, the affidavit that must accompany a warrant and the three requisite elements in it that make a valid search warrant.

What is an affidavit?

We could spend all day breaking down what an affidavit is and what all goes into it and surrounds it to make it lawful; but to make a long story tolerable, an affidavit is what police provide to a judge or magistrate in order to obtain a warrant—in this case, a search warrant. The affidavit is sworn under oath to be truthful and has three main components of significant importance, so let’s get right to it.

Spell it out for me.

A properly executed affidavit must explicitly state a crime committed, and it must be a crime on the books, meaning in the Texas Penal Code. No officer or citizen can allege a made-up crime or accuse you of anything that is not an actual crime when it comes to a valid affidavit.

Why is this evidence?

A sworn affidavit that accompanies a search warrant must include the why. Why the officers need to search your property or a specific location must be relevant to the alleged crime committed. For instance, a suspect pulled over for alleged drunk driving should have no concern about their home being searched, as the alleged crime was committed in their car and on the road. Places of irrelevance to the suspected crime have no place in a lawful affidavit. Remember those Fourth Amendment rights we’ve discussed? This is where those rights are upheld.

Connect the dots.

We’ve established that a lawful affidavit must explain why you want to search a certain property as it relates to an alleged crime, and it also must include in some specificity that the evidence is likely to be found at another location. For instance, an alleged fraud committed in a place of business would require a detailed account of why the suspect’s home would need to be searched instead of or in addition to their office where the alleged crime was committed. Not every place a suspect has been is fair game for a blanketed search warrant to cover. A lawful affidavit will practically spell out, connect the dots, if you will, why other places or items need to be included in the search warrant.

While these lawful affidavits have been broken down here in three easy steps, they are not, in fact, easy as 1-2-3. Officers and magistrates are on hand 24 hours a day in order to execute search warrants, so it’s especially important to have practiced legal counsel to work just as hard and just as much to ensure your Fourth Amendment rights aren’t violated with a shoddy, poorly executed affidavit.

Continue to tune in to In Your Defense and follow along on our social media channels as we continue to break down search warrants and everything that goes around those. If you have any questions about these issues or fear your Fourth Amendment rights were placed in jeopardy by an unlawful search warrant, please reach out to us at Peek & Toland, so we may help protect your rights and guide you through the criminal defense process.

Posted in Criminal Defense

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DACA and Traveling Abroad: A Pathway to Citizenship?

By Peek & Toland on February 3, 2021

When it comes to immigration issues, and DACA especially, the questions concerning permits and permissions usually surround wanting to stay within the U.S., but what if you are here through the DACA program and want to temporarily leave the U.S.? Can you do so legally and return to the U.S.? There are many reasons someone might need or want to temporarily leave the United States, so let’s take a look at what that means for Dreamers.

You need more than DACA to leave

As mentioned, DACA (Deferred Action for Childhood Arrivals) is a program that allows people who came to the United States as children to legally live within the U.S. borders without being a full U.S. citizen. If you’re wanting to venture outside of the U.S., you will need more than your DACA status to do so and safely and legally return here. Attempting to leave the U.S. and return with DACA alone can result in your DACA status being revoked indefinitely. While the short answer is that DACA does not grant access to leave and return to the U.S., there are other options that will allow this.

Advance Parole

Advance Parole is a process in U.S. immigration law that allows immigrants to leave the U.S. and then re-enter lawfully. This process was readily open and widely used during the Obama administration. Now that President Biden is in office and has announced applications for Advance Parole will be processed, it’s the perfect opportunity to look at who can travel outside of the U.S. and re-enter through this program and how.

Not all Fun and Games

The Advance Parole permit is quite appealing, and for reasons far greater and more desirable than an extended vacation in the Caribbean. This program can literally be life-changing for qualifying Dreamers, as re-entry into the United States under Advance Parole is considered a lawful entry into the U.S. What’s the significance there? A lawful entry into the U.S. from an approved trip abroad means eligibility to apply for a Green Card, thus creating a clear path to citizenship for Dreamers. Wow, right? Wow, indeed, but why aren’t Dreamers lining up en masse to apply for Advance Parole? Unfortunately, Advance Parole is more limited and has tighter allowances for Dreamers than it is for other immigrants.

Strictly Business

When it comes to telling U.S. Citizenship and Immigration Service (USCIS) why you, as a Dreamer, need Advance Parole to leave and re-enter the U.S., your circumstances need to be exceptional and serious, as USCIS does not grant Advanced Parole with DACA for vacations and fun. While you might feel you desperately and urgently need a vacation in Cancun, the generally accepted situations USCIS counts as exceptional are more along the lines of urgent emergencies, important events like somebody’s wedding, a funeral, visiting a sick relative, giving blood, or otherwise helping somebody wind up their affairs or legal matters outside the country. Permissible reasons for travel can also be for business, training, and study abroad programs. Because of the very tight restrictions and scrutiny on Dreamers, it’s very important to have capable counsel advise you on your Advance Parole application.

Why is it important?

Of course, needing to travel out of the country to help a family in need or attend training or an important event is important; but, as I mentioned earlier, the act of legally re-entering the U.S. creates pathways for secured legal status in the U.S. in a few ways: having a passport stamped, being inspected legally for the first time, is a new legal entry which will now open the door for citizenship, which also allows for citizenship for a future spouse. Also, if you were somebody who came in illegally, that could be the difference between being able to get residency here in the United States or having to apply through another process that’s much longer and much more expensive. If you or your family aren’t eligible for those options, there are others.

Parole in Place

Another option for a pathway to citizenship is through a unique program for qualifying undocumented family members of U.S. military personnel, both active and veteran. Parole in Place allows non-citizen family members who are in the U.S. unlawfully to apply for a green card, without having to leave the country. While parole in place is usually for spouses of people in the military, this program is also for children of persons in the military, and even parents of those who are in the military. Qualifying candidates must show in their application the relation they have with this person in the military and that they’re either active or honorably discharged from the military. Once granted, Parole in Place treats you as though you have left and re-entered the U.S., inspected lawfully and legally, though you don’t actually have to leave—hence the in place.

While you may want to leave, may be able to leave, or maybe treated as though you’ve left, there are a few options for changing your status that is very much worth reviewing with one of our qualified and passionate immigration attorneys who have helped many families reunite and get residency through these processes.

Continue to tune into Immigration Wednesdays and keep up with us on social media as we expand the conversation on immigration processes in the coming weeks. We’re very excited about all the updates and changes from this new administration, and we hope we can help you secure your life here through some of these programs.

Posted in Citizenship, Deferred Action, Immigration

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