May 18, 2018

Supreme Court of the United States

Dahda v. US

No. 17-43            5/14/18


Is a wiretap order that includes a sentence authorizing interceptions outside the territorial jurisdiction of the court “insufficient on its face” requiring suppression of all intercepted communications?


No. An order that is “insufficient on its face” must not merely contain an error but must be deficient in some manner. Here, the wiretap order authorized interception both within the court’s territorial jurisdiction and outside of it. The order contained a defect by authorizing interception beyond the court’s jurisdiction, but it was not lacking any required element. The authorization outside the court’s jurisdiction was without legal effect, and interceptions within the court’s jurisdiction were properly authorized. Read opinion.


Most Texas prosecutors won’t be defending the legality of federal wiretaps. That said, this case could be useful where a warrant or court order contains something additional that it should not, but where no evidence obtained due to the “extra” language was admitted. In the words of the Court, “Not every defect results in an insufficiency.”

McCoy v. Louisiana

No. 16-8255       5/14/18


May a defense attorney admit his client’s guilt over the client’s objection to put on the best possible defense?


No. The Sixth Amendment guarantees a defendant’s right to the assistance of counsel, but it remains the defendant’s prerogative to choose the objective of his defense. Whether to maintain innocence or admit guilt in the hope of obtaining a lighter sentence is not a part of trial strategy but a fundamental choice about the defendant’s objectives. Here, defense counsel reasonably assessed that conceding guilt was the best strategy to avoid the death penalty, but it was error to override the defendant’s choice to maintain innocence despite overwhelming evidence and almost certain conviction. Read opinion.

Dissent (Alito, J.):

“The Court overturns petitioner’s convictions for three counts of first-degree murder by attributing to his trial attorney, Larry English, something that English never did. The Court holds that English violated petitioner’s constitutional rights by “admit[ting] h[is] client’s guilt of a charged crime over the client’s intransigent objection.” But English did not admit that petitioner was guilty of first-degree murder. Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner committed one element of that offense, i.e., that he killed the victims. But English strenuously argued that petitioner was not guilty of first degree murder because he lacked the intent (the mens rea) required for the offense. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case. … I would base our decision on what really took place, and under the highly unusual facts of this case, I would affirm the judgment below.” (internal citations omitted) Read opinion.


Traditionally, the client chooses the ends of a representation while the attorney chooses the means to those ends. This meant that a defendant determined whether: to plead guilty, to waive a jury, to testify, and to appeal. Now the Court has created a new thing that a defendant controls—the objectives of the representation. Here, the “objective” was acquittal against impossible odds. This new category will be more difficult for defense counsel and courts to assess and implement. Prosecutors had best prepare to be surprised. Moreover, conceding guilt is not an uncommon defense tactic, so be prepared for writs raising similar claims. 

Byrd v. US

No. 16-1371       5/14/18


Does a driver of a rental car whose name is not on the rental agreement have a reasonable expectation of privacy in the vehicle?


Yes. “As a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” The driver and sole occupant of a vehicle who lawfully possesses or controls a car has a legitimate expectation of privacy by virtue of the right to exclude others. This does not depend on the whether the car is owned or rented, nor does a violation of the lease agreement have any bearing on the expectation of privacy. The Court remanded the case for consideration of: 1) whether the facts in this case were more analogous to one in which the driver was a car thief, who would have no expectation of privacy; and 2) whether probable cause justified the search. Read opinion.

Concurrence (Thomas, J.):

“The issue [of whether the defendant had a property interest in the rented vehicle] seems to turn on at least three threshold questions. First, what kind of property interest do individuals need before something can be considered “their . . . effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropriate case, I would welcome briefing and argument on these questions.” Read opinion.

Concurrence (Alito, J.):

“The Court holds that an unauthorized driver of a rental car is not always barred from contesting a search of the vehicle. Relevant questions bearing on the driver’s ability to raise a Fourth Amendment claim may include: the terms of the particular rental agreement; the circumstances surrounding the rental; the reason why the driver took the wheel; any property right that the driver might have; and the legality of his conduct under the law of the State where the conduct occurred. On remand, the Court of Appeals is free to reexamine the question whether petitioner may assert a Fourth Amendment claim or to decide the appeal on another appropriate ground. On this understanding, I join the opinion of the Court.” (internal citations omitted) Read opinion.


The Court of Criminal Appeals reached the same result in Parker v. State, 182 S.W.3d 923 (Tex. Crim. App. 2006). It is about time the feds caught up.

Murphy v. National Collegiate Athletic Association

No. 16-476          5/14/18


Does the Professional and Amateur Sport Protection Act (PASPA) violate the Constitution’s anticommandeering doctrine?


Yes. PASPA makes it unlawful for a state to “authorize” sports gambling schemes. For a state to repeal its current gambling laws to allow sports gambling would be considered “authorizing” gambling under PASPA. The anticommandeering doctrine prohibits the federal government from either forcing state legislatures to enact laws or prohibiting state legislatures from repealing or amending laws. PASPA violates this doctrine by attempting to regulate state laws on gambling and is therefore unconstitutional. States may choose to legalize sports gambling. Read opinion.


Have you ever heard of the “anticommandeering doctrine?” Many of us have not, but as set forth in this opinion you may hear more about it. In an age where the states and federal government are in opposition on issues such as immigration, legalization of marijuana, and methods of law enforcement, this doctrine limits the tools the federal government may use to bring the states into line. Sports gambling remains illegal in Texas because it is prohibited by Texas law. Reasonable minds can differ whether that changes next year.

Supreme Court of Texas

State v. T.S.N.

No. 17-0323       5/11/18


May a defendant who was arrested on two unrelated charges, convicted of one but acquitted of the second, seek an expunction of the charge for which she was acquitted?


Yes. Under Code of Criminal Procedure Art. 55.01(a)(1), the unit of expunction is an individual charge, not the entire arrest. Subsection (c) denies an expunction after an acquittal when there is a conviction or pending charge from the same criminal episode. However, when a defendant is arrested on unrelated charges, the arrest may be partially expunged to remove all records of the acquitted charge even if another charge stemming from the arrest is not eligible for expunction. Read opinion.


The courts of appeals, with the exception of the 5th Court, had held that a petitioner could not receive an expunction of an arrest unless all offenses related to that arrest—whether on view or based on a warrant—were also eligible for expunction. The petitioner argues that each offense should be examined individually. The Texas Supreme Court did not overrule existing cases and picked a middle ground of sorts. The effect seems to be that cases involving acquittals and pardons are eligible for expunction even if other offenses from the same arrest are not. Compliance in this situation will be more labor intensive—and more expensive—because compliance will mean redacting files rather than merely dropping them in the shredder. Be ready for additional expunction requests as well.


From our friends at the OAG’s Human Trafficking and Transnational/Organized Crime Section:

Backpage record certification requests should be sent to [email protected] Please remember to attach the records you need certified and the certification document that you are requesting be completed and returned to you. Please allow 2-3 days for your request to be processed. If you have a record certification request that requires urgent attention, indicate that by including the word “URGENT” in the subject line of your email.

Additionally, the FBI and its law enforcement partners are continuing to put processes in place to make historical Backpage data available to federal, state, and local law enforcement officials for use in ongoing investigations and prosecutions. Further information and guidance will be disseminated as soon as these processes are in place.

Please share this information with your state and local law enforcement partners. This information will also be posted on


Recent changes to forensics accreditation requirements: 

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which go into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: