May 26, 2017

5th Circuit Court of Appeals

US v. Wallace

No. 16-40701                      5/22/17


Does obtaining prospective cell site data constitute a search within the meaning of the Fourth Amendment?


No. Like historical cell site information, there is no reasonable expectation of privacy in the prospective GPS data and location of a cell phone. This information is collected and stored by cell phone service providers in the ordinary course of business for their own purposes. Prospective cell site data falls outside the purview of the Fourth Amendment, and an order for this information based on less than probable cause is not per se unconstitutional. Read opinion.


Keep an eye on this case. Some noted commentators believe this case may have legs in the ongoing battle regarding access to tower data for criminal investigations. The methods of obtaining the tower data here involved court orders based on reasonable suspicion rather than probable cause. The court relies on the third-party doctrine to uphold the trial court, but some dispute whether that doctrine is really applicable to the GPS data in question. In any event, officers were able in this case to use near real-time data to find and capture a fugitive gang member who illegally possessed a firearm.


Texas Court of Criminal Appeals

Larue v. State

No. PD-1544-15                 5/17/17


Must a court allow post-conviction DNA testing of oral swabs from the victim and the t-shirt of another suspect when the defendant’s DNA was previously identified on the oral swabs and under the victim’s fingernails, the defendant’s statements put him at the crime scene, and two jailhouse snitches testified that he described committing the murder?


No. If someone in addition to the defendant left DNA at the crime scene it would at most muddy the waters. None of the multiple DNA tests previously conducted ever showed that the defendant’s DNA was not present on the victim. Read opinion.  


The Court continues to hold a hard line on post-conviction DNA testing—if it will not exonerate the defendant, it does not fit within the statute.


Texas Courts of Appeals

Ashby v. State

No. 01-15-00182-CR         5/23/17


Is testimony regarding the time of ingestion, quantification of the drug in the defendant’s bloodstream, and the pharmacokinetics of a new drug required before evidence of the drug’s presence in the defendant’s bloodstream can be admitted?


No. Failure to quantify the amount of the drug and estimate the time of ingestion might lessen the probative value of the evidence, but it does not render it unreliable or irrelevant. Furthermore, the drug in question, TFMPP, is relatively new, resulting in a dearth of scientific knowledge surrounding absorption and elimination rates. Because no human studies of TFMPP have been conducted, the expert could not testify about absorption and elimination rates and estimated time of ingestion. However, the trial court allowed him to testify as an expert because he demonstrated he knew everything there was to know about the new drug. The expert’s testimony also did not offer any opinion that exceeded current scientific knowledge. Read opinion.

Dissent (Jennings, J.):

According to the State’s own expert, it is not possible to reliably extrapolate whether the TFMPP in the defendant’s system was psychoactive at the time of his arrest. Without this knowledge, the fact that the defendant had an unquantified amount of TFMPP in his blood sample was not relevant and the evidence should have been suppressed. Read opinion.


This case will be useful to you if you have encountered a novel intoxicant in a DWI case. The State brought multiple experts to explain what substance was found in the defendant’s blood and, as best could be done at the time, explain the effects of the substance on the defendant.


Chavira v. State

No. 08-15-00128-CR         5/16/17


May extraneous-offense evidence of the exact offense charged be admitted by the State to rebut a defensive theory?


Yes. The evidence offered had relevance apart from showing character conformity; the fact that the defendant was again arrested four months later with cocaine found under the driver’s seat served to rebut the defensive theory that he had no knowledge of the cocaine under the driver’s seat on the day in question. The probative value of this evidence was not substantially outweighed by any prejudicial impact when it was not cumulative of other evidence and was presented concisely and with a limiting instruction. Read opinion.


It is important to note that this is a 404(b) ruling and not a 609 opinion. The result might be different if you are trying to impeach a defendant with a prior conviction for the same type of offense. See Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)


Texas Attorney General Opinions

No. KP-0149       5/18/17


Are individuals civilly committed pursuant to Chapter 841 of the Health and Safety Code eligible to vote by mail under §82.002 of the Election Code?


Yes. The behavioral abnormality of a sexually violent predator qualifies as a sickness under §82.002(a) of the Election Code. Furthermore, orders of commitment impose travel restrictions that prevent sexually violent predators from appearing at a polling station without assistance. Read opinion.


I wonder if any political party is going to court the votes of the civilly committed sex offenders?



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