by Houston Criminal Defense Attorney

What is Probable Cause?

Probable Cause

If you have read our blog on police encounters you have a better understanding of your rights when approached by a police officer.

It’s a 3-Question Process:

1. Officer, am I free to leave?
2. Officer am I being detained?
3. Officer, am I under arrest?

If the officer said you are under arrest, this arrest is based on probable cause.

What is probable cause?

Probable cause is defined as facts and circumstances sufficient to believe a crime has been committed. Your lawyer, will learn whether the officer in fact had probable cause to arrest you.  For example, regarding DWI criminal defense, Texas courts have held rapid acceleration, weaving, speeding, verbal defiance, leaning on door for support, mumbled speech, bloodshot eyes, smell of alcohol, and poor performance on field sobriety exercises provided sufficient probable cause for a DWI arrest. In contrast, Texas courts have held speeding, an illegal u-turn, and a variation of the field sobriety tests did not provide a sufficient basis for a DWI arrest.

What is the difference between a mere encounter, a detention, and an arrest?

A mere encounter requires no suspicion at all.  It is an exchange of information.  A detention requires reasonable suspicion and is a temporary investigation.  An arrest requires probable cause.  Think of a staircase.  The first step, mere encounter, is the lowest form of police interaction.  The second step, a detention, requires suspicion a crime may have been committed.  The third step, probable cause, requires sufficient facts to believe a crime has been committed. Your criminal attorney will examine the encounter, detention, and arrest to determine if each step was conducted lawfully.

What if the officer didn’t have probable cause to arrest me?

If the officer arrests you without probable cause, than the arrest is unlawful and in violation of your constitutional rights.  Any evidence obtained from that unlawful arrest is known as “fruit of the poisonous tree.” Your criminal defense lawyer will move to have any unlawfully obtained evidence suppressed.  Suppressed evidence means no evidence.  No evidence means the state likely can’t prove their case and must dismiss.

by Houston Criminal Defense Attorney

Police Encounters

3 Critical Questions With Any Police Encounter.

Knowing your rights upfront can be the difference in defeating your criminal accusations on the back. Unlawfully obtained evidence is bad evidence.  Bad evidence is not admissible against you in the court of law.  If police violated your constitutional rights your lawyer will move to suppress the unlawfully obtained evidence. The likely result of suppressed evidence is a dismissal!

Three Critical Questions to ask with any police encounter are explained below.

1. Am I free to leave? – Mere Encounter
2. Am I being detained? – Detention based on Reasonable Suspicion
3. Am I under arrest? – Arrest based on Probable Cause

Am I Free to Leave? – Mere Encounter – When the police walk up to you.

A police officer has a right to walk up to you in a public place and speak with you. However, you also have the right to walk away. Unless, the officer has reasonable suspicion to detain you.

A mere encounter is an exchange of information. No level of suspicion (of criminal activity) by the officer is required and you are free to leave. That is why it is important to ask if 1) you are under arrest and 2) if you are free to leave. If you can leave then leave. A mere encounter is considered voluntary and your fourth amendment rights do not attach. Further refusing to cooperate with the officer does not give him reasonable suspicion to detain you.

What is the difference between a mere encounter and a stop or detention?

If the officer tells you that you are being detained or that you are not free to leave then the encounter becomes a stop or detention. A stop or detention is a temporary investigation. A frisk or pat down falls into this category. Essentially whenever a police officer restrains your freedom to walk away, you have been stopped or seized. Here, while you are not free to leave, you are protected by the fourth amendment against unreasonable stop or detentions.

Factors such as the officer’s tone of voice matter in determining if there has been a mere encounter or a stop/detention. The crux is whether you are free to leave.

Adamo & Adamo Law Firm Tip:

Ask the officer, “Am I free to leave.” If the officer says you are being detained he believes he has reasonable suspicion to detain you.

“Am I being detained?” – What is reasonable suspicion?

Reasonable suspicion means an officer can detain (i.e. investigate) if they have specific and articulate facts that: you are, have been, are presently, or soon will be involved in criminal activity. The basis for the detention can not be merely a hunch or gut feeling.

How long can I be detained?

There is not a bright line time limit for an unreasonable detention. However, the detention must be limited to the purpose of the stop and must only be long enough for the officer to affirm or dispel his suspicions. If the officer detains you too long or investigates matters not related to the initial stop, then he has violated your constitutional right not to be unreasonably seized (4th Amendment). If an officer’s detention is unlawful, your criminal attorney will move to suppress any evidence obtained after the detention.

Should I ask the officer why he stopped me?

Yes. Nothing wrong with asking this. You may not know why you were stopped.  The officer may not have a lawful reason he stopped you.

Should I ask the officer, “Am I under arrest?“

Definitely yes. This question comes after “Am free to leave?” or “Am I being detained?“.

What if the officer says, “You are under arrest?”

You should tell him “you want your lawyer present for any further questions (5th Amendment and 6th Amendment).”

Should I ask the officer if I can make a phone call?

Yes.

What if the officer says, “You don’t need your lawyers right now.”

You should tell him “you want your attorney present for any further questions (5th Amendment).” Be polite, but be firm.

What if the officer says, “You are not under arrest?”

Ask if you are free to leave.

What if the officer says, “You are not under arrest, but can not leave?”

This is the typical scenario, and you can consider yourself detained. In this instance you should inform the officer, “you would prefer not to answer any more questions and would like to have your lawyer present (5th Amendment).”

The ball is now in the officer’s court. He must choose to either let you go or prolong his investigation. If he lets you go, count your blessings. If he arrests you, then he needs to have probable cause to do so. If he detains you and exceeds the scope of the initial basis for the stop or prolongs the detention, then he has violated your constitutional rights.

 

Real examples of a mere encounter:

• Officer approaching you and asking questions = mere encounter.
• Officer asking what you are doing in the area, what your name is, if you have any drugs = mere encounter.
• Officer approaching an occupied vehicle and knocking on the window = mere encounter.
• Use of siren or emergency lights, surprisingly = mere encounter.
• Parking the police car in such a way that you can’t leave, surprisingly = mere encounter.
• Use of officer spotlight alone = mere encounter.
• Use of officer overhead lights alone = mere encounter.

Real examples when mere encounter turns into a detention:

• Officer approaches an occupied vehicle + orders the person to roll down the window = detention.
• Officer asking for permission to search = detention.
• Tellling occupants of a vehicle to exit and have a seat with hands in view = detention.
• Shining spotlight + order/request to come over to officer = detention.
• Police spotlight + police overhead lights = detention.

Real examples of reasonable suspicion:

(the court has upheld the stop believing the officer possessed reasonable suspicion)

• Slow driving on the highway + entering a parking lot late at night + business closed + driving behind building + turning car lights off + high crime area = reasonable suspicion to detain and investigate.
• Recent burglary of a motor vehicle + police officer speaking with victim + truck drives by slowly + victim saying they had seen the truck before and suspected he may be suspect = reasonable suspicion.
• Urinating in public = reasonable suspicion.
• Speaking to a known drug addict + high crime area + walking away at the sight of officer = reasonable suspicion.
• Late at night + pulling up close to police vehicle + revving engine + lurching movement towards police vehicle + close to bars = reasonable suspicion (DWI).
• Crossing onto shoulder of roadway multiple times + unusual use of turn signal + late at night + close to bars = reasonable suspicion (DWI).
• Weaving multiple times + late at night + officer training and experience = reasonable suspicion (DWI).
  Driving “all over the roadway” = reasonable suspicion (DWI).
• Reaching for your waistband upon being approached by an officer.
• Admitting you were driving drunk.
• odor of alcohol + red, bloodshot, glassy eyes + slurred speech + admitting you were drinking.
• odor of marijuana.

Real examples of insufficient reasonable suspicion:

(unlawful stops and unlawfully obtained evidence)

• Evidence of flight alone (i.e. running when the cops show up) = not reasonable suspicion.
• Driving through a neighborhood where burglaries occurred = not reasonable suspicion.
• Parking at a closed business + late at night = not reasonable suspicion.
• Officer observes car hit the brakes + turn on headlights + immediate left turn to avoid officer + car registered out of county + 4 people in car = not reasonable suspicion.
• Anonymous tip + no corroboration = not reasonable suspicion.
• Quickly pulling out of a bar parking lot = not reasonable suspicion (DWI).
• Cutting off another vehicle = not reasonable suspicion (DWI).
• Weaving + lack of evidence regarding officer training/experience = not reasonable suspicion (DWI).
• Weaving one time = not reasonable suspicion (DWI).
• Weaving to avoid debris on road = not reasonable suspicion (DWI).
• Slow driving + lack of evidence regarding traffic on road = not reasonable suspicion (DWI).
• Screeching tires + lack of evidence regarding officer training/experience = not reasonable suspicion (DWI).
• Swerving within lane = not reasonable suspicion (DWI).
• Gang Membership
• Refusal to Cooperate
• Nervousness

Real examples of a detention:

• Use of police overhead lights + boxing-in your car is a detention (i.e. the officer must have reasonable suspicion).

by Houston Criminal Defense Attorney

Criminal Defense – Constitutional Rights

Criminal Defense Attorneys – Understanding Your Rights.

Whether you are casually approached by the police or are the subject of a criminal defense investigation, you need to understand your rights.

We all have rights, but we can waive those rights. Our rights stem from and are guaranteed by Federal and State Constitutions.  These rights are then molded by laws and courts.

Below are important rights or weapons of mass protection to be aware of when coming into contact with the police.  It is vital to remember that while you have guaranteed rights, you have to exercise those rights or risk losing them.

1st Amendment

• Freedom of Speech:  you can say what you want.
• Freedom of Assembly:  you can protest if you want.

2nd Amendment

• Right to Bear Arms: you have the right to own a gun (exceptions apply)

4th Amendment

“Show me the Warrant!”

• This is your shield against unreasonable searches and seizures.  A search or seizure can range from police officer frisks to blood draw demands to a search of your home.  This amendment also imposes limitations on police investigations and prevents the use of illegally obtained evidence at a criminal defense trial.
• While “warrantless searches” are presumed to be unreasonable, a search based on your consent is allowed.  In other words, don’t consent to searches.

5th Amendment – “I plea the 5th.”

• You cannot be forced by police to reveal incriminating information that may be used against you in court. In other words if the police want to speak with you, inform them “you would be happy to cooperate with your criminal defense attorney present.”

6th Amendment – “Lawyer Up!”

• You have the right to counsel and the right to be told of such upon arrest (also known as Miranda warnings). Understand anything you say will and can be used against you.  For example, in a routine traffic stop and subsequent DWI investigation answering such questions about what, when, and how much you drank will come in as evidence in a criminal trial.  This is true despite not being read your Miranda warnings.

by Houston Criminal Defense Attorney

Sometimes When You Win. . . Exonerations and Criminal Defense.

In the 1992 basketball film White Men Can’t Jump, it was explained:

Sometimes when you win, you really lose and sometimes when you lose, you really win and sometimes when you win or lose, you actually tie, and sometimes when you tie, you actually win or lose.

Make Sense?

Neither does the state of our Criminal Justice System.

Sometimes When You Win…

The National Registry of Exonerations Report revealed a record (get used to this word) number of United States exonerations in 2015: 149 exonerations in fact, with five exonerations coming straight outta death row. Of the 149 exonerations, wrongfully convicted persons served on average about 14-and-a-half years in prison.

Crime Breakdown:

Homicide:                   58 or 39 % (new record)
Drug Cases:                51 or 34% (42 or 82% of the drug exonerations came from Clutch City, Texas)
Sexual Assault:          15 or 10%

…You Actually Lose:

Why are there so many exonerations? Why are people averaging 14 ½ years in prison for something they did not do? Why since 2011 have exonerations nearly doubled? Is it the criminal defense attorneys?  The prosecutors? The judges?

The answer lies in the disconcerting reasons below (exonerations were based on either one or a combination of).

Official Misconduct: 65 or 44% (a new record)
Guilty Pleas 65 or 44% (another new record)
False Confessions 27 or 18% (and another new record)
No-Crime Cases: 75 or 50%
DNA: 26 or 17%

Note: Not accounted for, but an often cited reason for wrongful convictions is mistaken identity.

Official Misconduct:

There’s gonna be some stuff you gonna see
that’s gonna make it hard to smile in the future.

With nearly half of the exonerations coming from Houston, you don’t have to look very far to find shattered oaths littered by those sworn to protect and serve.

Look at the court’s findings in the David Temple case listing 36 instances of prosecutorial misconduct. Check out the Joseph Salazar case accused of attempting to disarm a peace officer, before criminal defense attorneys subpoenaed video that proved otherwise. Official misconduct isn’t just Houston’s problem, wrongdoing can be found across the country.  Official misconduct is particularly troubling given the role authority figures play in the system. These are the very people at the heart of justice. The very people who have the power and authority to ensure the truth is revealed. Yet, with at least three exonerations per week it is clear some officials have lost sight of their professional duties.

Guilty Pleas:

Why would someone plead guilty to a crime he didn’t commit? From the outside, it seems impossible. From the inside, it is a different story. Especially, for example, from the inside of jail under FBI Investigation. The justice system is a money system. If you don’t have the bank roll to bond out of jail or defend your case, a “deal” can put you back on the job and with your family. While the intentions at this stage may not be as malicious as above, innocent people are still stuck in prisons and with permanent convictions.

No Crime:

What? Huh?

How could someone be convicted of something that is not a crime?

A quick guilty plea for a low-level drug cases where subsequent lab results reveal otherwise is such an example. 51 wrongfully convicted drug cases were exonerated last year in Houston alone.

Convictions secured by “junk science” like Cameron Willingham’s arson accusation is another. Overall jurors want to do the right things.  They see a well-dressed, well-spoken, so-called government expert explaining “junk science” and it sounds believable.  The experts of the unsinkable ship, Titanic, sounded believable too.  “Junk science” has become a “fly in the ear” for many types of criminal offenses.

False Confessions:

People often find it difficult to believe someone would admit to a crime they did not commit. Unfortunately false confession can and do happen. Police “tunnel vision”, trained interrogation techniques, twisted words, lengthy interviews, and overmatched suspects are some of the many reasons false confessions occur. One exonerated case even involved police torture.

Still Work To Be Done

While a few major cities, including Houston, have deployed Conviction Integrity Units designed to prevent, identify and correct false convictions, there is still much work to be done. The growing number of exonerations fail to account for low-level offenders lacking the means, determination or desperation to prove their innocence. While they may not be facing death or lengthy prison sentences, the collateral consequences of a conviction carry a heavy weight. Until those with the ability to make changes for the betterment of the system do so, these flaws will remain. Criminal defense attorneys, prosecutors, and judges must demand better.  So sure, it is a great that falsely accused persons are being freed at a record rate, but they shouldn’t have been there in the first place.  In other words, sometimes when you win, you really lose.

by Houston Criminal Defense Attorney

Miracle Defense – DWI

by Houston Criminal Defense Attorney

DWI – Collateral Consequences

A DWI arrest and conviction can carry stiff repercussions and harsh financial penalties.  That’s the bad news, the good news is you can fight the DWI!

by Houston Criminal Defense Attorney

DWI – Breath Test Machines

If you have been arrested for DWI and submitted to a breath test, there are many factors that may have caused an elevated result.

by Houston Criminal Defense Attorney

State vs. Michael Phelps – DWI Defense

On October 1, 2014 at 1:40 a.m., Michael Phelps was arrested for Driving While Intoxicated.  Media outlets, sponsors, and high ranking swimming officials have been quick to assume intoxication, but was he?  What follows is an explanation of the events we know occurred, included an explanation of the breath test machine.

The National Highway Traffic and Safety Administration (NHTSA) is the “go-to” authority in detecting possibly impaired drivers.  They developed the Standardized Field Sobriety exercises to assist and coordinate police conduct during DWI stops and investigations.  NHTSA provides a 24 hour (three-day) course that teaches the background, administration and scoring for standardized field sobriety exercises.  The goal is to aid police officers to know when to stop drivers who may be intoxicated and conduct an investigation to confirm or deny their suspicions.  The problem is the police officers may have only taken this class once, often years ago, and often fail to follow the proper procedures and protocol taught by NHTSA.

NHTSA breaks the DWI investigation into three stages:

1) Vehicle in Motion; 2) Personal Contact; 3) Pre-Arrest Screening

The following is based on the FACTS we know thus far.

Phase One Vehicle in Motion:

Phelps was allegedly clocked going “84 in a 45” and “drifting out of his lane”.  Pending evidence the radar was calibrated and used correctly the stop will likely be held lawful.

Speeding is a lawful reason for an officer to stop a citizen.  Speeding is not however, an indication of intoxication.  Common sense would tell you people speed every day, whether or not they have alcohol in their system. NHTSA lists a number of visible cues to identify intoxicated drivers and speeding is not one of them.  Drifting is considered a cue of intoxication, but reading the reports literally one may conclude this was merely a single drift.  If he was traveling 84 mph, in a range rover, a drift would be expected and normal.  The highest criminal court in Texas, the Court of Criminal Appeals has said this much, stating “driving in and of itself is controlled weaving”.

At this stage it is unknown whether or not a video from the police vehicle exists.  If a video exists it may clear up some of the above.  If a video does not exist, it can be inferred it was favorable to Mr. Phelps.

Phase Two: Personal Contact:

Personal contact encompasses the face-to-face encounter with the officer and the subject (Mr. Phelps).  During this phase the officer should be making the decision whether or not he will have the subject perform the field sobriety exercises.  The officer is using his sense of sight, sense of hearing, and sense of smell sight in making the decision.

Sight:  The officer noted Red/Bloodshot Eyes;

Sound: The officer noted “mushed speech” and “admission to drinking”

Smell:  officer noted “smelled alcohol”

(other clues the officer could have noted but did not are soiled clothing, fumbling fingers, alcohol container, drugs or drug paraphernalia, bruises, bumps, or scratches, unusual actions, inconsistent responses, abusive language, unusual statements, “cover up” odors, etc.)

Red/Bloodshot eyes:  The officer is taught there are a number of things other than alcohol that can cause red/bloodshot eyes.  Fatigue is one.  We know Phelps came from a casino; It was almost 2 a.m.; he had been staring at cards and dice for hours; there may have been cigarrete smoke in close proximity.  I have been to a Casino or two in my day.  I have played cards.  I have never left a casino floor without red/bloodshot eyes.  Red/Bloodshot eyes in Phelps’ situation is normal.

Smelled Alcohol/Admission to Drinking:  Phelps said he had “3-4 beers”.  Despite what prominent Texas billboards may say it is not against the law to drink and drive.  Admitting to “3-4 beers” and smelling like alcohol is normal.

Mushed Speech”: Did the officer mean slurred speech?  A scene video would help explain “mushed speech”.  It would also be interesting to compare interviews Phelps has done over the years vs. how he sounds on the police video.  Mushed speech is not recognized by NHTSA as a sign of intoxication.

Phase Three: Pre-Arrest Screening (the field sobriety exercises):

a) Horizontal Gaze Nystagmus (HGN or “pen” test)

During the HGN test the officer has the suspect follow the motion of a small stimulus (i.e. pen) with their eyes only.  The officer is looking for involuntary jerking or bouncing of the eyes as they move toward the side.  Each eye is examined for three specific clues (6 total clues).

While I have yet to find a report indicating whether or not Phelps failed this test, my experience in how officers grade this test tells me he did.  I once had an officer fail an individual (6 clues) with only one eye (the other eye was a glass eye).  There are a number of factors that can effect the results of the HGN test.   For example, the test must be administered properly (happens less often than you would think); Additionally, there are multiple types of nystagmus unrelated and indecipherable from alcohol related nystagums.

A scene video would be the best indication to whether the test was administered properly.

b) Walk and Turn (walk the line)

We are told Phelps broke-heel-to toe stance; counted out loud; had difficulty with balance while walking; and had difficulty with balance while turning.

The clues the officer is trained to look for are: cannot balance during instructions (i.e. breaking heel-to-toe during the instruction phase); starts too soon; stops while walking; does not touch heel-to-toe (i.e. 1/2+ space between heel and toe an any step); Steps off line; Uses arms for balance (i.e. raising arms for balance more than 6″); Improper Turn; and incorrect number of steps.  If the officer notes 2/8 clues, you fail.  In fact, you can fail this test before you have taken a single step (see cannot balance during instructions and starts too soon).  In Phelps’ case the only standardized clue noted is broke heel-to-toe stance or cannot balance during instructions.  That would be 1/8 clues and a passing grade.  Without seeing the report, I’m assuming the officer added uses arms for balance and improper turn.  Giving Phelps 3/8 clues and meaning he did more things right than wrong.  Counting out loud is not a clue and the officer actually instructs the subject to count out loud during this exercise.

c) One Leg Stand

Here the officer is taught the four standardized clues are: sways while balancing; uses arms for balance; hops; puts foot down.  2/4 clues is an indication of impairment.

From what we know, Phelps “swayed slightly” and “didn’t look at elevated foot”.  I won’t address not looking at the elevated foot because that is not a standardized clue.  Subtracting that we are left with “swayed slightly”.  Again, a video would assist to see just how much sway there was, but even if Phelps did sway (remember he is on one leg), that would only be 1/4 clues and a passing grade on the one leg stand.

THE BREATH TEST = 0.14 –

Note: the breath test is being examined under the machine used in Texas (Intox5000EN)

The breath test machine currently in use in Texas is the Intoxilyzer 5000EN, manufactured by CMI, Inc.  CMI continues to service Texas’ machines, but the machine itself has been replaced at CMI by the Intoxilyzer 8000 and now the Intoxilyzer 9000.  Needless to say the Intoxilyzer500EN is outdated.  In fact it uses the same micro processing chip as ATARI.  Remember pong?

http://youtu.be/5uuxFhUc8tg

In Texas, intoxication must be proved at the time of driving, not the time of the test.  The time of the breath test is certainly important.  If the test was a few hours later the State will be unable to prove Michael Phelps was over 0.08 at the time he was driving.

Additionally, in order for there to be a valid test, and to protect against “residual mouth alcohol” (think a burp, belch, regurgitate, etc.), a certified breath test operator MUST administer a 15 minute waiting or observation period.  If this is not done correctly, the test is not considered scientifically reliable and is inadmissible as evidence.

Speaking of science, the 0.14 could be walked down to below a 0.8 taking into consideration:

– The machine’s recognized tolerance of +/- 0.02 (i.e. 0.12)

– The machines recognized potential error of +/- 0.01 (i.e. 0.11)

– The machines partition ratio.  The partition ration is the assumption the concentration of alcohol in the person’s blood is 2100 time the concentration of alcohol in the person’s breath or 2100/1.  Why does this matter?  The partition ration can affect the overall result and studies have shown the ratio can vary from 1000/1 to 3005/1.  Taking the 0.11, and using a partition ratio of 1000/1 would put Mr. Phelps at (0.11/2100 * 1000 = ) at 0.05, well below the illegal 0.08.

– Breath Temperature, Interferents,  Acid Reflux Disease, Breathing Patterns, etc. are all things that can influence a false high on the machine.

In conclusion, after seeing Mr. Phelps’ video and assuming he looks normal, his case is certainly defendable.  People trust their eyes.  If he looks good on video, if he doesn’t look intoxicated, jurors will trust what they see over the mysterious machine that should have been retired long ago with ATARI.  A machine the manufacturer, CMI, refuses to warrant “fit for its intended purpose”.  While the media is quick to assume Mr. Phelps was intoxicated, the FACTS seem to weave a different story.

 

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