Criminal Defense Case Results (May 2016)
Texas Criminal Defense (May 2016)
➤Murder – Case Dismissed
Believing there were problems with the State’s ability to make their case from the outset, we set the case for trial on the first court appearance. As the ensuing months passed, it became clear the case was falling apart and the State was forced to dismiss the murder charge.
➤Felony Possession of a Controlled Substance
After months of pretrial investigation and negotiations with the prosecutors, the State agreed justice would best be served by dismissing the felony drug charge.
➤Motion to Revoke Felony Probation – Case Dismissed
Our attorneys submitted a substantial packet, showing amongst other things how our client was a contributing member of society. The court agreed and dismissed the felony probation revocation.
➤Misdemeanor Possession of a Controlled Substance
We provided relevant case law as to why the stop of our client was unlawful. The State had no choice, but to dismiss the drug charge.
➤Misdemeanor Possession of a Controlled Substance
After lengthy pretrial negotiations, our client was offered and agreed to take a drug class in exchange for the dismissal of all charges.
➤Criminal Mischief
We believed these charges should have never been filed. After explaining why the prosecutors agreed and the case was dismissed…on the very first court setting!
Freedom Fit: Modern Criminal Defense & Wearable Tracking Devices
You’ve seen the commercials.
Go Fit.
Push Fit.
Pull Fit.
Whooooaaaa Fit.
Stay Fit.
If not, here it is.
Endless Fits. “All the fits” are more than healthy-living tracking devices, they are slowly evolving into persuasive tools for courtroom advocates and criminal defense attorneys should take note. Defense Fit.
Unintended Use of Fitbits:
Recently a 44-year-old woman in Pennsylvania was charged with reporting a false alarm, tampering with physical evidence, and making a false report after data pulled from her Fitbit wristband contradicted her original sexual assault claims.
The affidavit states:
The information collected from the fit bit device showed that [defendant] was awake and walking around the entire night prior to the incident and did not go to bed as reported. The Fitbit shows activity up until the time of the call and then again only when it is collected by your Affiant. That based on the above and additional evidence your Affiant believes that the [defendant] was not raped as reported and fabricated the entire incident.
Over the last few years, civil attorneys have presented Fitbit tracker information in court to either bolster or discredit physical activity in personal injury lawsuits.
Women have even learned they are pregnant when their Fitbit data became erratic. An example of the diverse information discoverable from these devices.
What is a Fitbit?
Fitbit devices were created to provide real-time feedback on personal fitness goals. By wirelessly syncing and automatically recording data to your smartphone or computer, Fitbits provide up to the minute tracking of your activity, food, weight, exercise, location, etc. Below are recent Fitbit products and features.
- Zip: tracks steps, distance, calories burned, & active minutes;
- One: Zip’s features plus sleep tracker (i.e. how long & how well you slept);
- Flex: One’s features plus hourly activity tracker & stationary time tracker;
- Charge: Flex’s features plus floors climbed tracker & caller identification;
- Alta: Charge’s features plus call, text, & calendar alerts and an auto-record workout feature;
- Charge HR: includes an up to the second heart rate data.
- The Blaze & Surge: touchscreen watches that include heart rate data & GPS location.
Discovering Fitbit Data:
A criminal defense attorneys pursuit for exoneration never ceases. Knowing whether your client owned a wearable device should be a question in every initial consultation. Valuable information at the time of the alleged incident such as heart rate, location, texts received, and calls received can be learned from the wearable device. The Fitbit user can pull the information themselves or provide you with their username and password. The data can then be downloaded straight from the Fitbit website. The very tactic used by police in the above Pennsylvania, sexual assault case.
If the Fitbit user is an adverse party, unwilling to grant access, then you’ll have to lean on the old school approach of subpoenas and court orders. In fact, Fitbit’s privacy policy states, “it will release data necessary to comply with law, regulation, or valid legal process.” 1
Fitbit Data & Law Enforcement:
Legislatures have struggled to chase technological advances. By the time lawmakers enact a new statute, the next, best device hits the market. Recently the American public has learned of government attempts to obtain a master-key to unlock cell phones & the warrantless use of skimming devices to gather personal information. Fortunately, courts are recognizing the need for warrants when intruding into one’s “handheld privacies.”
The United States and Texas courts require law enforcement to obtain a warrant before searching confiscated cell phones. 2 This warrant requirement has yet to extend to location data as officers routinely track individuals by obtaining information from cell phone companies without the person’s knowledge. While wearable devices contain location data, they have a closer resemblance to cell phones. Thus, a warrant should be obtained before searching any Fitbit (or similar) device. Bolstering this opinion is the Riley court’s statement that, “obtaining location information through a cell phone is a search and requires a warrant”. 3 That being said, laws relevant to technology are in constant flux, and a person can always waive their rights by consenting.
Even though the legal landscape surrounding wearable devices is somewhat chaotic, data recovered can be a powerful criminal defense tool to use, especially in pretrial negotiations. Every defense lawyer should know whether or not their client has or was wearing a wearable tracking device on the night of the alleged incident; know how to recover the necessary data; know how to interpret and apply it. Defense Fit.
Notes:
- Whether or not the release of wearable, personal, health-related information is in violation of the Health Insurance Portability and Accountability Act (HIPPA) will be left up to appellate courts to decide. ↩
- Riley v. California, 573 U.S.___, 134 S. Ct. 2473, 189 L. Ed.2d 430 (2014); State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014). ↩
- Riley, supra. ↩
Recent Criminal Defense Case Results (April 2016)
Texas Criminal Lawyer Case Results (April 2016)
➤Prostitution – Dismissed
Client was arrested and charged with the criminal offense of Prostitution. After an investigation revealed issues with the police officer’s sworn report, the district attorney agreed to dismiss the case in exchange for a sex education class.
➤Aggravated Assault with a Deadly Weapon – Dismissed
Client was facing a serious felony with the potential for a lengthy punishment range. Our client was adamant that he did not commit the crime and we agreed. The state was unwilling to dismiss the case, and the case was set for trial. On the day of trial, with a jury panel in the hall, the case was dismissed.
➤Motion to Adjudicate – Dismissed
Our client faced potential prison time after alleged violations surfaced while on probation. The state filed a motion to revoke the probation and we set out to find the truth. After a lengthy investigation revealed credibility issues with the State’s witness the motion to adjudicate was dismissed and client was placed back on his original probationary terms.
➤Felony Possession of a Controlled Substance – Dismissed
The officer’s basis for the search was unlawful. Unlawful evidence is inadmissible and without it, the State could not prove their case beyond a reasonable doubt. We presented case law directly on point that showed the problems with the officer’s actions. Case dismissed!