Tuesday, August 22, 2006

Criminal Law Series

Part II in Motion to Suppress Week:

A motion to suppress is a powerful tool because it can be used in so many ways. Today in part two of "Motion to Suppress" week, the Criminal Law Series travels to Houston to investigate a claim by a convicted drunk driver that the arresting officer was not a "real" police officer and thus had not the power to arrest.


Defendant was driving on the Rice University Campus when he was pulled over and arrested for DWI by a Rice University Police Officer. Defendant was convicted and appealed. He claimed that the police officer lacked authority to enforce state laws. In effect, defendant claimed that the police officer was a psuedo-officer with only, at best, marginal enforcement powers.

The Appeals Court disagreed on a purely statutory basis. The court cited the Texas Transportation Code, which gives institutions of higher learning the authority to enforce state law on its campuses. Further, the code gives such institutions the power to hire personnell who are granted "the same powers, privileges, and immunities of peace officers while on the property under he control of institutions of higher education." Thus, the Rice University Police Officer was empowered to pull over and arrest defendant for any violation of state law, DWI included.

Laura Carter, Justice
Panel consists of justices Taft, Higley, and Bland.
Defendant, Appellant v.
The State of Texas, Appellee
Court of Appeals for the First District of Texas

Wednesday, August 02, 2006

Employee Rights and Motions to Suppress

Employee rights are always a hot topic in the law. Today in the Civil Law Series, The Texas Law begins a look at employment law with a visit to the Court of Appeals for the First District of Texas in Houston. There we will investigate what happens when an employee claims he was fired because he raised issues concerning improper and perhaps illegal behavior on the part of his employer and fellow employees. Such a person has the Texas Whistleblower Act to which to resort for relief.

The Fourth Amendment to the United States Constitution protects citizens from illegal searches and seizures by the government. Today in the Criminal Law Series, The Texas Law begins a five-part series on illegal search and seizures. The “Motion to Suppress” series will look at motions by defendants to suppress incriminating evidence. These motions are all based on the claim that the police violated the Fourth Amendment.

Civil Law Series
Employee Law

Dr. Livingston was employed by the City of Houston as a veterinarian with the Bureau of Animal Regulations and Care, or BARC. Over time, Dr. Livingston made numerous complaints to his supervisor at BARC concerning the manner in which animals were treated at the pound. In 1999, Dr. Livingston was put on indefinite suspension. He claimed the suspension was in retaliation for his repeated complaints about improper conduct by BARC. He sued the City of Houston in a Texas Whistleblower lawsuit.

The Texas Whistleblower Act has two purposes: (1) to protect state employees from retaliation by their employers when, in good faith, employees report a violation of the law; and (2) to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. In order for the Texas Whistleblower Act to apply, an employee must show that he or she was the target of adverse employment action because he or she, in good faith, reported a violation of law by the employing government entity or another public employee to an appropriate law enforcement authority. To protect employers from insubstantial claims, the Act requires reporting employees to act in good faith. That is, employees must truly believe that what they are reporting are indeed violations of law. Also, these beliefs must be reasonable in light of accepted societal standards.

The court ruled that Dr Livingston believed, in good faith, that he was reporting violations of the Houston City Code, the Texas Penal Code, and the Texas Health and Safety Code and that BARC was an appropriate law enforcement authority to which to report violations such as these. The court further ruled that Dr. Livingston’s beliefs were reasonable in light of his training and experience.

Dr. Livingston’s reports of animal abuse to BARC was a cause of the City’s terminating his employment and the court awarded him $116,500.00 in past lost wages, $235,000.00 as the value of re-instatement of his former position, and $250,000.00 in compensating damages and attorney’s fees.

The City of Houston, Appellant V. Sam Livingston, D.V.M., Appellee
On Appeal from the 125th District Court Harris County, Texas
Opinion by Terry Jennings, Justince; Panel consists of Justices Taft, Jennings, and Bland.

Criminal Law Series
Motions to Suppress

Richard Berry was at his town home with Jennifer Corzine, his room-mates girlfriend. Berry requested sexual favors of Corzine in exchange for narcotics from Berry. Corzine refused, and Berry assaulted her. Berry then retied to his room which was located upstairs. Later when Corzine’s boyfriend, Mr. Spade, returned, he called the police. When the police arrived, Berry’s room-mate told them that Berry was asleep upstairs and had drugs in his possession. When police went up the stairs, they smelled a marijuana smell that got stronger as they ascended the stairs. Berry’s door was open and his light was on as he lay asleep on his bed. From outside Berry’s room the police could see a large quantity of marijuana, two smaller bags of methamphetamine and a cash roll. Berry was charged with sexual assault, possession of methamphetamine with intent to deliver and possession of marijuana. He was sentenced to 80 years imprisonment. Berry appealed, claiming that he was denied effective assistance of counsel because his attorney failed to file a motion to suppress the evidence obtained from his bedroom.

Generally, police must obtain a warrant supported by probable cause to conduct a search and/or seizure. Police would not need a warrant and would have the right to search if: 1- the property owner’s had consented to their presence; or 2- their search was justified by an exception to the warrant requirement. Unless the police have consent or if an exception to the warrant requirement exists, any evidence seized must be suppressed and cannot be used against the defendant.

Berry claimed the evidence should have been suppressed because he did not consent to the police presence in the condominium. The evidence showed that Spade had equal access to the condominium. Anyone with access to a property may consent to a police search. Spade did consent to the search. Thus, the police were properly in the condo.

Berry next claims that the police improperly seized the drugs because they lacked probable cause to believe that Berry was engaged in drug-related conduct. The court ruled that the police could permissibly seize the drugs based on the “plain view doctrine” exception to the warrant requirement. The doctrine requires that: 1- the police have a right to be where they are when they seize the contraband; 2- that contraband is in plain view; and 3- it must be immediately apparent that the items seized constitute evidence of a criminal nature.
The appeals court held that the police had the right to be where they were because Spade, a person with equal access to the condo, consented to their presence. Next, the court held that the evidence was plainly visible from the vantage point of the police in the hallway. Finally, the court held that the criminal nature of the items was immediately apparent because the drugs were in clear plastic bags.
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