Weekly Case Summaries: October 28, 2016

Fifth Circuit Court of Appeals

U.S. v. Turner

No. 15-50788      10/13/16

Issue:

Is scanning the magnetic stripe on the back of a gift card a search under the Fourth Amendment?

Holding:

No. During an investigation regarding stolen gift cards, the police officer lawfully seized over 100 cards and attempted to scan the magnetic stripe on each, which the defendant claimed was a separate search that violated the Fourth Amendment. The Court found no separate privacy interest in the information stored on a gift card because it is not personal information, but commercial information, intended to be accessed and used by third parties (i.e., a retailer). Read.

Commentary:

Pay very close attention to this decision. The court reached two very important holdings: 1) the cards could be seized when they were seen in plain view because the officers had probable cause to believe that they were instrumentalities of a crime, and 2) the defendant did not have a reasonable expectation of privacy in the information on the magnetic stripe that would prevent the search of that magnetic stripe after the card had been properly seized. Such gift cards are being used more and more by criminals to launder money and commit other similar crimes. This decision should be very helpful. Stay tuned to see if the case makes its way to the Supreme Court.

U.S. v. Ramirez

No. 15-40887      10/14/16

Issue:

Did the officer have reasonable suspicion to stop the defendant’s vehicle?

Holding:

Yes. The border patrol agent was an experienced agent who had been patrolling that area of highway for almost one year, the vehicle was still in proximity to the border, the vehicle was a popular vehicle for smuggling, and it was driving on a stretch of road at a time that was also known for smuggling. Additionally, the behavior of the driver and passengers was unusual, appearing nervous. Read.

Commentary:

This is a good decision on reasonable suspicion, but do not expect it to automatically be applicable to all Texas cases. This is a case involving a border stop, and courts will typically give a little greater leeway concerning those types of searches. But for border-stop cases in state court, this decision should be helpful.

U.S. v. Smith

No. 15-11185      10/14/16

Issue:

Was it proper for the Court to deny the defendant’s request for a continuance or a revocation hearing to hire private counsel?

Holding:

Yes. On the day of his revocation hearing, the defendant’s public defender filed a motion for continuance so the defendant could hire private counsel. The Court was under the impression that this was merely a delay tactic, and no evidence was shown that the defendant had actually hired new counsel or could afford to do so. It was within the Court’s discretion to deny the motion to continue. Read.

Commentary:

This holding is consistent with how Texas state courts would treat this issue. A defendant cannot wait too long to request a continuance so that he can hire a lawyer. The federal appellate court also holds that full panoply of rights do not apply to a probation revocation proceeding. That is consistent with federal law. However, that is not consistent with Texas law. A defendant has greater rights in a probation revocation proceeding in Texas than does a defendant in federal court.

Courts of Appeals

Villarreal v. State (13th COA)

No. 13-15-00037-CR         10/20/16

Issue:

Was it a violation of the separation of powers doctrine for Texas Securities Board attorneys to assist in the prosecution of the defendant for securities fraud?

Holding:

No. The TSB attorneys served as special prosecutors at the discretion of the District Attorney—they took the lead in certain portions of the trial due to their particular skill, but the D.A. did not delegate her constitutional power to prosecute. Additionally, the special prosecutor’s testimony at a pre-trial hearing regarding a deposition did not create a conflict of interest in this case. The court also decided a number of other challenges on the constitutionality of the statutes, the statute of limitations, and the sufficiency of the evidence. Read.

Commentary:

If you read this very lengthy decision, you will probably learn more about the Texas Securities Act than you ever wanted to know (this is the same law under which Texas Attorney General Ken Paxton is being prosecuted). But this is a very helpful decision if defense counsel challenges the use of a special prosecutor who is assisting in a prosecution. This can happen from time to time in various types of cases, especially where specialized knowledge is involved. There are other provisions and case law that permit the assistance of the Attorney General’s Office and other executive branch agencies. It is not common, but it does happen.

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