Sunday, December 16, 2012


Consent to Search Vehicle Should Not Extend to Search Cell Phone

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The New York Times recently ran an article about the difficulties courts face when law enforcement officials search cellphones for the “cornucopia of evidence” they may contain about criminal wrongdoing. The Times pointed to one court in Rhode Island that suppressed cellphone evidence because of a warrantless search while a court in Washington held text messages do not enjoy an expectation of privacy under state law because they are like “voice mail messages that can be overheard by anyone in a room.”
“The courts are all over the place,” Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, a San-Francisco-based civil liberties group, told the Times. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protections.”
The Times noted that the Fifth Circuit Court of Appeals “is weighing [in a Louisiana case] whether location records stored in smartphones deserve privacy protection, or whether they are ‘business records’ that belong to the phone companies.”
With respect to cellphone searches, the Fifth Circuit in 2007 in United States v. Finley held that law enforcement authorities could search a suspect’s cell phone records and text messages “incident to a lawful arrest.” Put another way, after a person is arrested, a full search of the person, and his cell phone, is reasonable under the Fourth Amendment.

The following year the appeals court clarified Finley in United States v. Zavala, involving a search conducted on a cellphone absent consent, probable cause or lawful arrest. A drug case, Zavala dealt with a cellphone search by a DEA agent after Zavala’s vehicle was stopped by the police during which the agent obtained the “subscriber number” (the 6323 number), which led to additional evidence and phone records.
The background facts are necessary to understand why the Zavala cellphone search was declared illegal. The DEA agent received confidential source information that Maria Luna wanted to purchase cocaine in Houston. A short time later two undercover DEA agents met with Luna in a local restaurant parking lot during which one of the agents observed a “large amount of cash in a partially opened bag” in the vehicle. The agents left the meeting with an agreement that they would meet with Luna in the near future about sealing the proposed drug transaction. After Luna drove out of the parking lot, the agents followed him to his residence in the High Manor neighborhood. During a subsequent, and consensual, search of Luna’s residence (conducted in June 2004), the narcotics agents discovered “forty kilograms of cocaine, drug ledgers, and a cellphone.” The drug ledgers contained a number of entries (totaling to 132 kilograms of cocaine) for a man named “Gorro.” Gorro’s name also appeared in Luna’s cellphone. The agents subsequently through a subpoena learned that Gorro’s subscriber number (4886) belonged to Jose Rivera, prompting the agents to set up a surveillance of his residence based on information from Luna’s cellphone indicating that he was distributing cocaine in Houston.
In July 2004, DEA agents followed Rivera as he left his Miramar Shores residence, and during a traffic light stop, one agent dialed the phone number for Gorro and observed Rivera answering his cellphone at the same time. The agents then followed Rivera to his second residence on Tall Timbers where they observed him parking his Ford pickup in the driveway. At this point the agents did not have any confidential source information, or any other evidence, that a drug transaction was going to take place at the Tall Timbers residence on that day. Still, the agents continued what they called a “fluid surveillance” of the residence during which their observations were broadcast over police radio.
After a brief period, Zavala and Javier Pompa-Hernandez arrived at the residence in a Ford Taurus—neither of whom the agents recognized “from any previous investigation.” Zavala parked the Taurus next to the pickup. Pompa removed some “unidentified items” from the Taurus, placed them in a box, and put the box in Rivera’s pickup. Zavala did not touch the box. He simply stood outside the Taurus. Still, DEA agents believed they were witnessing a drug transaction involving all three men. Rivera then left the residence, drove to a nearby garage and retrieved a pair of pliers after which he drove back to the residence. Although the agents did not see what Rivera did with the pliers, they suspect he used them to open a “secret compartment in the Taurus carrying contraband.” The three men then left the residence in the vehicles in which they had arrived. They were followed by two teams of agents.
Based on the belief that they had just witnessed a drug transaction, the federal agents instructed uniformed Houston police officers to stop the Taurus. Zavala had not committed any traffic violation prior to being stopped by the uniformed officers. The uniformed officers ordered Zavala and Pompa out of the vehicle and immediately separated the two men before removing their wallets and cellphones which were placed on the Taurus’s roof. DEA agents arrived shortly thereafter and interviewed both men after which one of the agents searched the cellphone whose subscriber number was 6323. Significantly, the agent had to open the phone to see that number. Zavala had given oral consent for the Taurus to be searched but it was “unclear whether the search of Zavala’s cell phone occurred before or after Zavala first gave his oral consent to search the Taurus.” Both Zavala and Pompa denied the existence of a “cardboard box” or being involved in any drug transaction.
Zavala was handcuffed, placed in a police vehicle, and transported to the Miramar Shores residence where an interrogation of Rivera was underway about what had just transpired at the Tall Timbers residence. Rivera was then escorted back to the Tall Timbers residence where he gave the agents oral consent to search his garage and attached shed. Zavala was detained at the Miramar Shores residence while the Tall Timbers search was being conducted. A drug detection dog alerted to a “red suitcase” during the Tall Timbers search. Rivera immediately confessed that Zavala and Pompa had delivered “twenty-four kilograms of cocaine to him” earlier that day at the Tall Timbers residence after which he took the drugs back to the Miramar Shores residence. He told the agents that an “extra kilogram of cocaine” had gotten stuck in the Taurus from which he could not remove it with the pliers.
Based on the information supplied by Rivera, the federal sought, and secured, a second oral consent from Zavala to search the Taurus. This search occurred “about one hour and fifteen minutes after the initial stop of the Taurus” at the Miramar Shores residence during which the agents “located one kilogram of cocaine in a secret compartment.” Zavala also gave the agents oral consent to search his “Ann Louise residence” where they discovered $27,000 in cash. The Zavala residence search occurred “about four hours” after the initial stop of the Taurus. Like Rivera, Pompa also “flipped” on Zavala, identifying him as “Nejo” and his “cell phone number as the 6323 number.” He said he had called Zavala at that cell phone number to conduct drug transactions.
Zavala was indicted for several counts involving conspiracy to distribute drugs. Prior to his trial, Zavala’s attorneys filed two motions to suppress any evidence seized from the Taurus, his residence, and cellphones. The motions were based on the legal premise that the agents arrested him without probable cause, and, therefore, any evidence seized during his “illegal detention” could not be used against him. The trial court conducted two suppression hearings. Following the first hearing, the court ruled that the initial stop of the Taurus was a permissible “Terry stop” based upon a “reasonable suspicion” of drug activity, but the court pointed out that Zavala had been detained (handcuffed in a police vehicle) for “one hour and thirty minutes before Rivera confessed to Zavala’s participation in the twenty-five kilogram drug transaction” and that “probable cause” to arrest did not develop until that confession. The government argued that the time Zavala was detained was necessary to “confirm or dispel the reasonable suspicion” which justified the initial Terry stop during which no drugs were found. The court was not impressed. It ruled that the cocaine discovered during the second Taurus search and the $27,000 seized at the Ann Louise residence had to be suppressed.
The second suppression motion concerned “three cell phones confiscated” from Zavala. The government argued that the cell phones were admissible evidence because they had been confiscated during the initial permissible Terry stop. The government informed the court it would not seek to introduce the “physical cell phones” but would present testimony from a DEA agent about his search of the 6323 phone. The trial court ruled that this testimony was admissible because the cell phones had been obtained after Zavala’s oral consent to search the Taurus at the initial Terry Stop.
The Fifth Circuit disagreed. While the appeals court recognized that the initial Terry stop was based on reasonable suspicion of drug activity, and while consent to search precludes the necessity of probable cause or the issuance of a warrant before the search of a vehicle, that consent does not automatically extend to the search of a person. The appeals court held that while Zavala had given consent to search his vehicle, it was “objectively” unreasonable to assume this consent extended to his cell phones which had been confiscated and placed on the roof of the Taurus. Thus, the appeals court concluded the DEA agent’s search of Zavala’s 6323 cell phone during the Terry stop was unconstitutional because a Terry stop permits only a “pat down search to determine whether the suspect is carrying a weapon.” Thus, while the uniform officers had authority under Terry to order Zavala to empty his pockets and place the contents on the roof of the Taurus to make sure he was not carrying a weapon, this authority alone did not establish probable cause for the DEA agent to later conduct a warrantless search of the suspect’s cell phone.
The Electronic Communications Privacy Act of 1983 governs how law enforcement officials can monitor digital communications; and as the Times pointed out, “courts have used it to permit warrantless surveillance of certain kinds of cellphone data.” But as Ohio State University law professor Peter P. Swire told the Times, this 1986 statute, and certainly not the Constitution, could have anticipated how much personal information cellphones would ultimately contain.
“It didn’t take into account what the modern cellphone has – your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Swire told the Times.
Faced with often conflicting decisions from the courts, it is little wonder that state legislatures are currently grappling with ways to protect personal privacy information while not impeding with law enforcement’s need to detect and prevent criminal activity. For example, as the Times pointed out, an Ohio court held that the police need a warrant before searching a cellphone because of its “large amounts of private data” while California’s highest court has ruled that a warrant is not needed so long as the cellphone is “with the suspect at the time of arrest.” The California ruling prompted “privacy advocates” to lobby for, and secure the passage of, a law requiring law enforcement to obtain a warrant “before demanding location records from cellphone carriers.” The law, however, was vetoed by Gov. Jerry Brown who said the legislation did not strike “the right balance between the operational needs of law enforcement and individual expectations of privacy.”
Other states like Delaware, Maryland and Oklahoma are considering similar legislation that would require law enforcement to obtain a warrant “before demanding records from cellphone carriers.” And such legislation is needed because law enforcement made 1.3 million demands on these carriers in 2011 alone for “text messages and other information about subscribers,” according to the Times report.
The Times report indicates that the Fifth Circuit is back pedaling somewhat on its Zavala ruling. The newspaper said the court earlier this year in a Texas case ruled that law enforcement did not need a warrant to “track suspects through cellphones” and is currently considering a Louisiana case in which prosecutors are “arguing that location information is part of cellphone carriers’ business records and thus not constitutionally protected.”
Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project, told the Times: “We are in a constitutional moment for location tracking. It’s percolating in all these places.”
We agree. The moment is here to determine where individual privacy ends and law enforcement technology begins. Will law-abiding citizens have their civil liberties trampled under the boot of law enforcement in pursuit of criminal wrongdoing? Or have the comforts technology has bought into our daily lives become more important than our expectations of personal privacy? Thus far, neither the courts nor the legislatures have been able to strike a lasting balance between these competing interests. We are afraid to think how all this will shake out.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Sunday, December 2, 2012

If There's A Will There's A Way

Being chosen as an executor can be both an honor and an obligation depending on the estate and the complexity of issues that arise. So a potential executor should make sure he or she knows what he or she is getting into before accepting the responsibility. The job of executor is defined as the person named to distribute a deceased person’s property that passes under his or her will, and arranges for the payment of debts and expenses. These duties apply even if a person dies without a will. In these cases, the court appoints a person called the administrator of the estate. All of the information below applies to executors no matter how he or she got the job. We will refer to this person as the executor throughout the course of the article. What follows are the top 10 duties and responsibilities of an executor.

Top 10 Duties and Responsibilities of an Executor

An executor is legally responsible for sorting out the finances of the person who died, generally making sure debts and taxes are paid and what remains is properly distributed to the heirs.

Texas law varies on the requirements of who can serve as executors, but generally, executors tend to come from the close ranks of a family—spouses, children, parents and siblings. Although state law provide for the payment of executors, since so many executors are close family members, they often don’t ask to be compensated. In addition to carrying out duties in a diligent, impartial and honest manner, an executor may also be required to perform any or all of the following activities, among others:

1. Get a copy of the will and file it with the local probate court
The executor is in charge of locating, reading and understanding the will—usually even if probate isn’t necessary, the will still must be filed with the probate court. At this step, the executor also determines who inherits the property.

2. Notify banks, credit card companies and government agencies of the decedent’s death
The Social Security Administration along with the decedent’s bank and credit card companies are just some examples of who should be notified of the death.

3. Set up a bank account for incoming funds and pay any ongoing bills
If the decedent is owed money such as incoming paychecks, this account can hold them. An executor should be on the lookout for mortgages, utilities and similar bills that still need to be paid throughout the probate process.

4. File an inventory of the estate’s assets with the court
In Texas, the court requires the executor to submit a detailed inventory of the assets in probate estate only in more extensive estates.

5. Decide what kind of probate is necessary
Because inheritance laws may facilitate the passing of certain properties without probate (such as property held jointly by a husband and wife), probate isn’t always necessary. Additionally, the value of the estate may allow it to pass through an expedited process.

6. Maintain property until it can be distributed or sold
This includes keeping up a house until it is distributed to heirs or sold—even deciding whether property needs to be sold at all. Also, an executor must be sure to find all personal property in the estate and protect it until distribution. If the decedent had a safety deposit box, the executor should locate it and keep it safe.

7. Pay the estate’s debts and taxes
Texas law dictates the procedure for notifying creditors, and the estate must also file final income tax returns from the first of the current year until the date of the decedent’s death. If the estate is large enough, there may be state and/or federal estate taxes to pay as well.

8. Distribute assets
Distribution occurs according to the wishes expressed in the will. If there is no will, state intestacy laws apply.

9. Dispose of other property
If there is any property left after paying off the estate’s debts and distribution to heirs, the executor is responsible for disposing of it.

10. Represent the estate in court
An executor may be required to appear in court on behalf of the estate.
Since estates vary greatly in size and complexity, an executor's job may be easy or challenging to carry out—and responsibilities may very well go beyond the 10 basic items in this list. But while an executor can decline the position or resign at any point in the process, sometimes all that is needed is some legal advice. Consulting with an attorney is generally to make sure that the executor properly complies with his or her duties.

Your Wichita Falls legal team at the Law Office of Bruce Harris can help guide an executor through the probate process. Click for more information.

Friday, November 30, 2012

Wichita County Jail - Inmate Info

Have a loved one stuck in the Wichita County jail? Want to know what the charges are and how much bail is set? Here's where you need to go for all your Wichita County jail inmate information.

And remember: the Law Office of Bruce Harris ( can bond clients out of jail at no additional charge.

Tuesday, November 27, 2012

Wichita Falls Child Support Issues: My Ex isn't Paying Child Support. What do I do?

Many parents in Wichita Falls and the surrounding areas in Wichita County face the recurring issue of not getting the child support ordered to ensure that your child’s needs are satisfied.  You have court orders telling the parent who owes the money (called the "obligor")  exactly how much they have to pay, when they have to pay it, and where they have to make the payment.  Why is it so difficult for them to follow through with this?  Why won’t they just pay for the child that they too are responsible for?  This can be frustrating and often times overwhelming for a lot of parents.  Do not fret because there is a way to fix this issue.  You do have a form of recourse, as the Texas legislature frowns upon parents not supporting their children.

Your local Wichita Falls family law attorney will file a motion for enforcement on your behalf.  In doing so, the attorney can request that the court set the amount of the debt (called "arrearages") and order the obligor to start paying on that arrearage in addition to the current amount of support that they are obligated to pay.  This means, if granted, that an additional amount would then be taken out of the obligor’s check until that arrearage is satisfied.

Your attorney can also ask that the obligor be placed in the county jail and/or fined for their failure to pay child support.  Also, there are additional forms of relief that can be sought.  It truly depends upon the circumstances and what would be most effective. The most important thing, however, is that you need the money that is owed to your child.

If you have a case in which the obligor parent has an outstanding amount in child support, do not let another day go by without consulting with your Wichita Falls family law attorney at the Law Office of Bruce Harris.

Monday, November 26, 2012

Wichita Falls Child Custody Issues: What is a Temporary Restraining Order

Many parents in Wichita Falls and the surrounding cities deal with the issue of a temporary restraining order–either you are served with one OR you know that the other parent is involved in something that places your child in danger, but you are not sure what the correct legal process is to protect your child.

Your Wichita Falls family attorney at the Law Office of Bruce Harris advises you that if you believe that the other parent is engaging or has engaged recently in acts that would endanger the child, then you would need to seek a temporary restraining order.

This is an ex parte order which your Wichita Falls family law attorney files on your behalf and attaches an affidavit stating, in your own words, such things as the other parent is consuming controlled substances, has a criminal history, etc.   In doing so, your attorney will request from the judge that the other parent not be allowed to possess or see the child for the time being.  If your affidavit is sufficient (it is a case-by-case determination in which the judge decides if the child will suffer immediate and irreparable harm), then the judge will grant the request and issue a temporary restraining order.  Within that document, the judge will set a hearing within fourteen (14) days to hear from both sides.  At the hearing, the judge will determine whether the temporary restraining order should continue or whether the parent should have some sort of lesser visitation than standard such as supervised.

Temporary restraining orders should not be taken lightly, no matter which side you are currently on.  If you are facing this particular issue, contact your Wichita Falls family attorney at the Law Office of Bruce Harris today.

Friday, November 23, 2012

Wichita Falls 101: What to Expect When You're Seeking a Divorce

Divorce is difficult for many reasons.  One reason in particular is that the process is so unknown.  Many people in Wichita Falls and the surrounding areas do not know what to expect when they consult with an attorney regarding a divorce.  In fact, there are several common questions that people typically have during this time.

1)  How do I get my divorce started:  If you do not have a pending case, you will file an Original Petition for Divorce and you typically must have the other party served with this document, along with any notices of hearing.  If the other party is in agreement, after the petition is filed, you can subsequently file a Waiver of Service on their behalf.  If a case is already pending, you will need to file an Answer and possibly a Counterpetition for Divorce if you want to request any additional relief from the court.

2)  What happens next:  The case is typically set for a Temporary Orders hearing so that the judge can make interim temporary orders in the case on such issues as who is going to stay in the home, who is going to pay the mortgage on the home, child support, child visitation, etc.

3)  What happens after the Temporary Orders hearing:  If your Wichita Falls Divorce Lawyer has not already done so, he will send what is known as discovery.  There are 4 main types of written discovery–Request for Disclosure, Request for Production, Interrogatories and Request for Admissions.   Your Wichita Falls Divorce Lawyer may choose to either send a couple of these or all four, it is truly determined on a case-by-case basis.  Essentially, these discovery tools allow your Wichita Falls Divorce Lawyer to do just that–discover the other side’s case and see what evidence, if any, they have to support their claims.

4)  How long do I have to wait before my case is finalized:  The waiting period for a divorce in Texas is 60 days, so you must at least wait this long before your case is finalized.  After a temporary orders hearing, you are able to gauge how things are going.  If you are unopposed to continuing the temporary orders, or just need a few changes, then it is not unlikely that your Wichita Falls Divorce Lawyer will try to work out some final orders to this effect.  If you are unhappy with the temporary orders, then you must have a final hearing to finalize your case.  Before you can have a final hearing, all divorce parties in Wichita Falls and the surrounding areas must first submit to a social study and/or mediation.

These are just a few of the main concerns that people have when going through a divorce.  Contact your local Wichita Falls Divorce Lawyer at the Law Office of Bruce Harris today to set up a consult for your divorce and discuss any further questions or concerns that you may have.

Thursday, November 22, 2012

Wichita Falls Divorce Consultation

It’s important to be prepared for your family law consultation. Divorces are a complicated matter, and with the right preparation you can help your attorney not only give effective legal advice, but also prepare to litigate your family case.

How much is a consultation? The Law Office of Bruce Harris is currently offering free family law consultations.

What to bring? Your family lawyer needs to know your financial situation. Debts, assets, liabilities, retirements, credit cards, student loans, mortgage payments, car  loans, tax returns are all important. You should bring as much financial information as possible to your first visit. Your Wichita Falls divorce lawyer will need to help you plan financially for the divorce process.  Together we will need to plan for how you can pay your bills during and after the divorce process.

What else? Any police or CPS records. If your spouse has been convicted it’s important to know the case number and location (county) of the criminal case. If you have emails or text messages you think are important bring those. Social media pages (Facebook, etc) are often useful in divorce litigation, especially if we are pleading a fault divorce (adultery, cruelty etc). You should not access any computer files without permission. Don’t hack into a computer to take information. Just bring what is available.

Who is going to pay for the house during the divorce? The court can make either party, or both parties pay the mortgage and expenses (utilities etc) during the divorce process. That means that the party not living in the house, may still be responsible for paying for the marital home in addition to child support.

What about child support? When will that start? The first hearing is most divorce cases is the temporary orders hearing. At that time child support is usually ordered, or agreed to.