Kenda Culpepper and Craig Stoddart 2012-12-26 02:09:15
Every session, the Texas Legislature passes a number of bills that affect criminal justice in some way. This past session was no different. Some of the more interesting and important changes involved K2 and “bath salts,” “sexting,” and expunctions. Lawmakers recognized the danger and prevalence of K2 and bath salts, especially among juveniles. K2, street name “spice,” is a mixture of plant leaves and stems that have been laced with synthetic chemicals often concocted in an underground lab. It is designed to mimic the effects of marijuana but is reportedly more dangerous and addictive. The drug known as bath salts, also a synthetic substance, is even more dangerous than K2. Its effects include hallucinations, extreme paranoia, violent behavior, and even death. In recent years, hospitals and poison control centers have reported dramatic spikes in usage and overdoses for both K2 and bath salts. As a result, the Legislature made both substances illegal. Punishments for possession of K2 are similar to those for possession of marijuana (delivery is a felony), while punishments for possession and delivery of bath salts are comparable to those for ecstasy and amphetamines. See, Texas Controlled Substances Act, Sections 481.103, 481.1031, 481.113, 481.116, 481.1161. Texas legislators also created a new misdemeanor offense for minors who possess or electronically transmit images of another minor engaged in sexual conduct (sexting). Certain defenses apply, including an affirmative defense if only two years separate the parties who were in a dating relationship at the time of the offense, and if they sent the image exclusively to one another. The offense is a Class C misdemeanor, although enhanced penalties exist for repeat offenders and in cases where the image was sent with the intent to harass, annoy, embarrass, or offend another. See Texas Penal Code, Section 43.261. Additionally, the Texas Legislature has made it easier for an accused to obtain an expunction when a case is dismissed or prosecutors make a decision not to file the case. The statute of limitations is no longer a hard fast deadline, and prosecutorial discretion has been expanded. See Texas Code of Criminal Procedure, Chapter 55. Not surprisingly, technology has played an important role in a number of significant court decisions in 2012. Among other things, the courts have looked at GPS tracking, social media evidence, and the telephonic administration of oaths. GPS Tracking and the Fourth Amendment — United States v. Jones, 132 S.Ct. 945 (2012). In an opinion that reaches back to a long unused property-based interpretation of the Fourth Amendment, the U.S. Supreme Court had cause to re-consider whether a person’s “reasonable expectation to privacy” exists as the sole measure by which courts can determine if a search and seizure violates the protections of the Fourth Amendment. In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court determined that the warrantless placement of a GPS tracking device on a suspect’s vehicle constitutes a ‘search’ under the Fourth Amendment to the U.S. Constitution. In Jones, the District of Columbia Metropolitan Police Department, acting in conjunction with the FBI, obtained a warrant authorizing the placement of an electronic tracking device on a vehicle registered to Jones’ wife. How- ever, because officers failed to install the device within the designated time and place restrictions, the warrant was rendered invalid. Nevertheless, authorities tracked the vehicle for 28 days, obtaining more than 2,000 pages of information connecting Jones to drug-trafficking activities. Following his conviction for conspiracy to distribute cocaine, the U.S. Court of Appeals for the District of Columbia overturned the verdict, holding that the installation of the GPS tracking device was an invalid search because it violated Jones’ reasonable expectation of privacy. On certiorari, the U.S. Supreme Court affirmed the decision of the court of appeals. The Supreme Court ruled unanimously that it was error for police to attach the GPS tracking device to Jones’ vehicle without a valid warrant. However, the Court was split on the legal grounds for their decision. Writing for the majority, Justice Antonin Scalia reasoned that the warrantless placement of the GPS device on Jones’ car was a constitutionally prohibited trespass upon Jones’ personal “effect,” an action enjoined by the language of the Fourth Amendment. While Scalia’s opinion represents a departure from the traditional “expectation of privacy” test first enunciated in United States v. Katz, 389 U.S. 347 (1967), he was careful not to imply its abrogation. Scalia noted that a Katz analysis remains appropriate in cases where there is no physical intrusion upon private property. In his concurring opinion, Justice Samuel Alito asserted that it was the prolonged use of the GPS tracking device, rather than the trespass committed in its installation, that ran afoul of the Fourth Amendment. Social Media Evidence – Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App. 2012). As the use of social networks like Facebook increases, law enforcement is expanding its use of these sites to garner evidence in criminal investigations. Until now, Internet anonymity has largely prevented this type of electronic information from being admitted as evidence in criminal trials. However, the Texas Court of Criminal Appeals recently held that content from a social media webpage can be authenticated and used as evidence if the “writing and the events before and after the execution of the writing tend to identify the author.” Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App. 2012). Ronnie Tienda Jr. was charged and convicted in the murder of David Valadez. After a confrontation with Tienda outside of a Dallas nightclub, Valadez and his friends left to go to another club. While driving, Valadez’s car came under gunfire from a group of several vehicles. Valadez was shot twice, lost control of his car, and crashed into the concrete median. At trial, the state attempted to admit evidence from three MySpace pages purportedly created by Tienda and offering details of the murder. The trial court admitted the evidence over defense counsel’s repeated objections to improper authentication, hearsay, and relevance. Affirmed by the 5th Court of Appeals, the case was taken up on discretionary review by the Texas Court of Criminal Appeals. The sole issue to be decided by the court was whether the contents of a website can be sufficient to authenticate the website for the purpose of admission into evidence. The Court of Criminal Appeals determined that the content contained within the MySpace pages offered by the State in Tienda (photographs, quotes, offense details, and other identifying information) was sufficiently detailed to support a finding that the pages were created and maintained by Ronnie Tienda Jr. While the court’s opinion fell short of offering a bright line rule for what constitutes sufficient indicia of authenticity, Tienda certainly opens the door to the future use and admissibility of social media evidence. Telephonic Administration of Oaths – Clay v. State, __ S.W.3d __, No. 10-09-00355-CR, 2012 WL 955323 (Tex.App.-Waco Mar. 21, 2012, pet. granted). In an interesting case to watch, the Texas Court of Criminal Appeals has granted PDR to determine whether an officer seeking a blood draw warrant may swear to a probable cause affidavit over the telephone. Clay v. State, __ S.W.3d __, No. 10-09-00355-CR, 2012 WL 955323 (Tex.App.-Waco Mar. 21, 2012, pet.granted). In so doing, the court will resolve a split in authority between the 10th and 12th courts of appeal. As of this writing, the court has yet to rule on the issue. In Clay, the defendant was stopped for speeding. After submitting to field sobriety tests, she was arrested for driving while intoxicated. The defendant refused a breath test and a warrant was sought authorizing that a specimen of her blood be taken. The arresting officer contacted the local magistrate by telephone. Without appearing in person, the officer swore to and signed the affidavit for search warrant. In Aylor v. State, No. 12-09-00460-CR, 2011 WL 1659887 (Tex.App.-Tyler Apr. 29, 2011, pet. ref’d), the defendant struck a street sweeping truck while operating his vehicle in Longview. The defendant admitted that he had been drinking before the accident and was arrested for driving while intoxicated. The officer dictated details of the incident to his sergeant, who prepared and faxed to a local magistrate an affidavit and search warrant seeking a sample of the defendant’s blood. The sergeant then telephoned the magistrate and swore to the contents of the affidavit, without ever appearing before the magistrate in person. In both Clay and Aylor, defense counsel sought to exclude blood evidence through motions to suppress, asserting that failure to be sworn in the physical presence of a magistrate rendered the warrants invalid. In upholding the warrant in Clay, the 10th Court of Appeals cited Smith v. State, 207 S.W.3d 787 (Tex.Crim.App. 2006) for the proposition that emphasis should be placed on the existence of an oath, rather than the technicalities under which it was administered. Interestingly, in Ayler, the 12th Court of Appeals also cited Smith, but interpreted it to require that an affiant must personally swear to the truth of the facts in the affidavit in front of the issuing magistrate. The court noted that Smith does not foreclose the possibility that search warrants might eventually be obtained through email or other electronic means, but stated, “We leave those future changes to the Texas Legislature.” KENDA CULPEPPER is the criminal district attorney in Rockwall County. She is certified in criminal law by the Texas Board of Legal Specialization. CRAIG STODDART is the first assistant at the Rockwall County Criminal District Attorney’s Office and has been prosecuting for more than 20 years.
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