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At the Charles Johnson Law Firm, we have extensive experience in the investigation of cases involving illegal search and seizure of property. Search and seizures can involve cases involving Drug Crimes, Federal White Collar Crimes or Child Pornography cases, as examples. Anytime local officials search your person, car, home, office or property, they must follow strict protocol to ensure compliance with your Fourth Amendment Constitutional Rights.
Has an illegal search of your home, vehicle, or other property resulted in drug charges involving possession, distribution or some other drug crime? Although the Constitution grants you the right against illegal search and seizure, it is often necessary to have a skilled lawyer on your side to advocate for and enforce your rights. Contact Houston Lawyer Charles Johnson for aggressive criminal defense representation anywhere in Texas. Attorney Johnson is available to discuss your case anytime night or day. You can reach him directly at (713) 222-7577.
Search and seizure law today is built around three key questions. First, did the police “search” or “seize” anyone or anything? If not, the law leaves police action basically unregulated. If so, what justification must the police have — probable cause, reasonable suspicion, or (in rare cases) something else? Finally, what process must the police follow — must they seek permission in advance from a magistrate, or can they search first and defend themselves in a suppression hearing later?
Search and Seizure: Understanding The Laws
One of the hallmarks of the US criminal justice system is our search and seizure law. The Fourth Amendment to the US Constitution guarantees the right to be free from unlawful or “unreasonable” searches and seizures by the police and other law enforcement personnel. Generally, this means that the police have to have a good reason before they may search you or your property, seize your belongings or even seize or arrest you.
The key term here is “unreasonable.” Of course, not all searches and seizures are illegal. The lynchpins to the search and seizure law are probable cause and the expectation of privacy.
In simple terms, probable cause means that there are facts or circumstances to justify a search or seizure of a place, things or a person. Generally, this means that there’s a good reason to believe that a person is or has committed crime or that evidence of a crime can be found in a particular place. Probable cause is the driving factor for any search or arrest.
With probable cause, a police officer may:
- Convince a judge or magistrate to issue a warrant that authorizes him to search a certain and particular place for certain and particular things and seize them, or to arrest a particular person, or
- Conduct a search and seize evidence of a crime, or make an arrest, without a warrant, if there are “exigent” or emergency circumstances that make getting a warrant impractical
For example, during an investigation, police officers gather evidence that a suspect is selling illegal drugs from his home. The officers may ask a judge or magistrate for a search warrant for the home (and an arrest warrant for the suspect), and if the magistrate thinks there’s enough evidence, they willl issue the warrant(s). However, if during a stakeout the officers learn that the suspect is about to destroy the drugs in his home, the officers may be justified to enter the home, search it, and seize any drugs and arrest the suspect, all without a warrant.
As a general rule, the police need to get a warrant. It’s the mechanism that makes the Fourth Amendment work, that is, it makes sure that a search and seizure is reasonable. If warrantless search and seizure is conducted, the police have to prove that a warrant was needed or that there was no time to get one.
Expectation of Privacy
Generally, unless you have a “reasonable expectation of privacy” in a certain place or thing, it may be searched and/or seized by the police without a search warrant. In other words, the Fourth Amendment doesn’t apply to any place or thing in which you don’t have a reasonable expectation of privacy. You have a reasonable expectation of privacy if:
- You actually expect privacy in the place or thing. This is called the “subjective” expectation of privacy, and
- Your expectation of privacy is one that that society as a whole would think is legitimate and reasonable. This is called the “objective” expectation of privacy
Some examples of places or things where you may have a reasonable expectation of privacy include:
- Your home, or anywhere you actually live, including a rented apartment or a hotel room
- The trunk of your car
- Luggage or other containers that aren’t transparent or see-through, even if you’re carrying it in a public place, like an airport or bus station
- Your business office
- A public telephone booth, once you’ve shut the door
On the other hand, there are many places and things in which there is no reasonable expectation of privacy, such as
- Things that are in “plain view,” that is, exposed or out in the open that anyone can see. Illegal drugs or weapons on the front seat of your car are good examples
- Portions of your business office or building that’s open to the public, such as a reception area
- Public places, likes restaurants and parks
- Your trash or garbage, once you placed it at the curb for pick-up or collection
The laws on search and seizure can be complicated, and the facts and circumstances of each particular case are very important to determining if an unlawful search and seizure has taken place. If you or your property has been searched already, you should contact Houston Criminal Lawyer Charles Johnson immediately to make sure that your rights are protected. He can be reached anytime at (713) 272-4586 to discuss your case.
Hire the Best Houston Search & Seizure Lawyer: Houston Criminal Lawyer Charles Johnson
Search and seizure law is complex and ever changing and the police always know it better than you. Don’t give them an even bigger advantage by agreeing to a search of your home, your car, or your person. The 4th Amendment to the Constitution says that you are supposed to be free from unreasonable searches and seizures unless the police have a warrant. In other words, the law specifically sets forth when an officer can look through your possessions and what he can take if he finds it during the search.
If I let the police search my car, new case law suggests that unless my consent is limited, they can search anywhere in the passenger compartment, including hidden places and containers. That means behind the door panels, speakers, or dash area.
Searches have been expanded to places the framers of the constitution could never have imagined, like inside your body. If the police stop your car and think you are intoxicated, they can ask a judge to give them a warrant to “search” inside your body for evidence of intoxication contained within your blood.
We have a huge body of case law that prevents the State from infringing on your right to be free from unreasonable searches and seizures and ensures the police must follow all the applicable rules when searching your car or person, and all of it is thrown right out the window when you tell the police it is okay to go ahead and look through your car, house, pockets, or body.
Say NO. It really is that easy. Just like you should say “no” to drugs, you should also say “no” to searches. If you are carrying something you don’t want the police to find, do not let them search for it.
The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen’s right to be free from unreasonable government intrusion into their persons, homes, businesses, and property — whether through police stops of citizens on the street, arrests, or searches of homes and businesses.
Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers interfere with individuals’ Fourth Amendment rights only under limited circumstances, and through specific methods.
What Does the Fourth Amendment Protect?
In the criminal law realm, Fourth Amendment “search and seizure” protections extend to:
- A law enforcement officer’s physical apprehension or “seizure” of a person, by way of a stop or arrest; and
- Police searches of places and items in which an individual has a legitimate expectation of privacy — his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.
The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.
When Does the Fourth Amendment Apply?
The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:
- An individual is stopped for police questioning while walking down the street.
- An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle’s trunk.
- An individual is arrested.
- Police officers enter an individual’s house to place him or her under arrest.
- Police officers enter an individual’s apartment to search for evidence of crime.
- Police officers enter a corporation’s place of business to search for evidence of crime.
- Police officers confiscate an individual’s vehicle or personal property and place it under police control.
Potential scenarios implicating the Fourth Amendment, and law enforcement’s legal obligation to protect Fourth Amendment rights in those scenarios, are too numerous to cover here. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has:
- A valid search warrant;
- A valid arrest warrant; or
- A belief rising to the level of “probable cause” that an individual has committed a crime.
What if My Fourth Amendment Rights Are Violated?
When law enforcement officers violate an individual’s constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated. For example:
- An arrest is found to violate the Fourth Amendment because it was not supported by probable cause or a valid warrant. Any evidence obtained through that unlawful arrest, such as a confession, will be kept out of the case.
- A police search of a home is conducted in violation of the homeowner’s Fourth Amendment rights, because no search warrant was issued and no special circumstances justified the search. Any evidence obtained as a result of that search cannot be used against the homeowner in a criminal case.
Search Warrant Requirements
Anyone who watches crime dramas on television is familiar with the scene where police officers enter a home or business brandishing a search warrant. The Fourth Amendment to the United States Constitution guarantees the people’s right to be free from unreasonable searches and seizures, which often — but not always — means that government agents must have a warrant to search and seize your person and property.
Here is the full text of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment protects the people from unreasonable searches and seizures, which means that many searches are fine as long as they meet certain requirements. Searches are generally considered reasonable when: 1) a judge issues a search warrant based on probable cause; or 2) certain situations occur that justify a search without a warrant (a search for weapons after an arrest, for example).
The Fourth Amendment’s requirements don’t apply when a person doesn’t have a “legitimate expectation of privacy” in the place or thing searched. If there isn’t an expectation of privacy, then the Fourth Amendment doesn’t come into play, and officers conducting a search don’t have to meet its requirements.
The United States Supreme Court has created a test for determining when a legitimate expectation of privacy exists. The test has two parts:
- Did the person subjectively expect the place or thing to be private? I.e., did they actually feel that the place or thing would remain private?
- Was that expectation objectively reasonable? I.e., would society as a whole agree that the place or thing should remain private?
An example might help clarify the point: most people feel that their homes are private, so there is a subjective expectation of privacy in one’s home. Most people in society would find this expectation reasonable, so a police search of one’s home must satisfy the Fourth Amendment’s reasonableness requirement.
If someone leaves evidence of a crime on their front lawn, however, it’s likely that a police seizure of that evidence would not constitute an unreasonable search since most people in a society would not expect that an object that was clearly visible to anyone passing by would remain private. Even if the owner of the home or the evidence genuinely expected that the area would remain private, that expectation would not be reasonable, and so the seizure would not have to meet the requirements of the Fourth Amendment.
Also keep in mind that the Fourth Amendment’s requirements only apply to government actors. Private individuals, including security guards, don’t fall under the Fourth Amendment’s restrictions. While a private individual may break other laws if they conduct a search of a person or their belongings, any evidence they discover in the process would still be admissible in court.
If a government actor conducts an illegal search (one that violates the Fourth Amendment), the government cannot present any evidence discovered during that search at trial. Known as the “exclusionary rule“, this rule aims to deter police officers from conducting unreasonable searches. Opponents of the exclusionary rule, however, argue that it lets guilty criminals go free on technicalities.
In addition, evidence obtained through illegal searches cannot lead police to the discovery of other evidence. This legal rule, known as the “fruit of the poisonous tree”, is also designed to prevent government actors from invading people’s privacy by conducting unreasonable searches. If police know, so the theory goes, that any evidence they obtain based on what they discover in an illegal search will be thrown out, they won’t conduct illegal searches in the first place.
Here are a few examples to illustrate the exclusionary rule and the fruit of the poisonous tree doctrine:
Officer Joe suspects that Chris is selling drugs. Without a warrant, Officer Joe walks into Chris’ house and finds drugs and a scale on the kitchen table. Officer Joe arrests Chris, but the judge throws out the evidence of the drugs and scale on the basis of the exclusionary rule.
In the example above, instead of finding drugs and a scale, Office Joe finds a map to locations throughout the city where Chris is storing his drugs for sale. Officer Joe collects the drugs and enters both them and the map as evidence. The map is thrown out because of the exclusionary rule, and, because Officer Joe would not have discovered the drugs without the map, the fruit of the poisonous tree doctrine prevents the use of the drugs as evidence.
It is important to note, however, that just because the prosecution can’t use certain evidence at trial, it doesn’t mean that a judge will dismiss a case or that a jury will acquit the defendant. Prosecutors may have enough other evidence to convict the defendant even without the results of the illegal search.
Plus, while prosecutors can’t use improperly obtained evidence to secure a conviction, that evidence may enter into other areas of the trial. For instance:
- The evidence may become a factor in civil and immigration cases
- Prosecutors can use the evidence to attack the credibility of a witness under certain circumstances
- Judges may consider the evidence when determining a sentence after a conviction
Understanding the Difference between “Search” and “Seizure”
“Searches,” in Fourth Amendment law, are police tactics that infringe a “reasonable expectation of privacy.” A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. A fair translation of this standard might go as follows: Police can see and hear the things that any member of the public might see and hear, without fear of Fourth Amendment regulation. Only when police cross that line, only when they see and hear things that members of the public would not be allowed to see and hear, has a “search” taken place.
A few examples might clarify the standard. Eavesdropping on telephone conversations is a “search.” Overhearing a conversation on the street is not. Climbing over a backyard fence is a “search.” Observing the same backyard from the window of an airplane is not. Hiding in the bushes outside a house and looking inside is a “search.” Standing on a public street and looking through open curtains into a living room is not. Opening a briefcase to inspect its contents is a “search.” Observing someone carrying a briefcase on the street is not.
When applying the “reasonable expectation of privacy” standard, courts ask whether, at the moment the police officer observed the illegal behavior, he was in a position any member of the public might have been in. The duration and intensity of police observation does not matter. Thus, police officers can stake out a private home, taking up residence across the street and watching all comings and goings for a period of days or even weeks, and that behavior does not constitute a “search,” because at any given moment, any member of the public might have been looking. And police can follow a suspect’s movements along public streets, in shops or restaurants, and so forth; once again, such behavior is not a “search” (even though it amounts to something like stalking), because any member of the public might have seen any given transaction in public.
One other feature of the definition of “search” bears mention. Consensual transactions are not “searches,” even if consent was given under false pretenses. So if a police officer poses as a drug buyer, and a suspect lets him into the suspect’s house in order to sell him drugs, anything the officer sees and hears in the house is fair game—no Fourth Amendment “search” has taken place. The use of undercover agents is thus routinely permitted by search and seizure law, whether or not the police have good reason to suspect the person with whom the undercover agent is dealing of any crime. Also, if a police officer asks permission to look in a suspect’s car or briefcase, and the suspect says yes, once again no “search” has taken place. This last point is particularly important. Police officers exert a certain amount of force just by virtue of their status. For many, perhaps most, a request from a police officer will sound like a command; the tendency will be to say yes whether one wants to or not. Nevertheless, if the police officer asks, and the suspect says yes, that almost always amounts to consent. Only if the officer behaves unusually coercively—if he pulls his weapon, or grabs hold of the suspect, or the like—will a court find that the consent was involuntary.
All these rules sound complicated; in practice, they are relatively simple. In general, the police are “searching” when they are either committing some kind of trespass—grabbing a suspect’s briefcase and looking inside, breaking into a house or apartment, climbing over a backyard fence—or are engaged in some kind of electronic eavesdropping—for example, wiretapping a phone. Most of the rest of what police do to gather information falls outside the Fourth Amendment.
“Seizures” are harder to define. The Supreme Court says that a suspect has been “seized” if a reasonable person in the suspect’s shoes would not feel free to leave. If the Court took its own language seriously, every conversation between a police officer and a citizen would be a “seizure.” After all, few people, when approached on the street by an officer, feel free to turn on their heels and walk away. The consequences of that position would be huge; the police would need some adequate justification for every interaction.
Not surprisingly, the law does not operate that way in practice. The working standard seems to be roughly the same as the standard for consent. The dispositive question is this: Did the police officer behave coercively (not counting the coercion that is inherent in a police officer questioning a suspect)? If so, the encounter is a “seizure.” If not, it is not. Compared to the definition of “search,” which has acquired a good deal of definition over the years, the definition of “seizure” remains remarkably vague and open-ended. Conversations on the street between police officers and citizens often begin as consensual conversations; at some point the encounter often becomes a “seizure.” Neither the officer nor the suspect—nor, for that matter, courts—know precisely when that point is.
The Penalties for Illegal Searches and Seizures
To ensure that police officers respect individuals’ constitutional rights, the U.S. Supreme Court provides strict penalties. If the police perform an illegal search, the evidence they obtain as a result of this search will not be allowed in a courtroom.
This means that if police search you without probable cause, even if they find drugs, they will not be allowed to present this evidence to a jury. Illegal search and seizure is one of the strongest defenses available for any criminal matter.
If you have been accused of any crime, contact the firm to discuss your concerns with an experienced criminal defense attorney. Houston Attorney Charles Johnson can help you understand your rights and remedies following an illegal search or seizure.
Houston Search and Seizure Lawyer Charles Johnson will fight aggressively on your behalf to get the charges against you dismissed in cases of police misconduct, police brutality or violations of your civil rights. Those actions include:
- Illegal search and seizure
- Failure to read Miranda rights
- Arresting you without a valid search warrant
- Refusing you access to an attorney
- Racial profiling
- Making false statements to obtain a warrant
- Making false statements in court
There are many other examples of police misconduct that could invalidate the charges against you. If you have been subjected to a search or seizure action, contact Attorney Johnson immediately to inquire about possible violations of your legal rights. Houston Lawyer Johnson has extensive experience challenging evidence that was gathered during an illegal search. Once the evidence against you is suppressed, there is no basis for the charges against you, which may lead to a dismissal of all charges.
Tips for avoiding all types of searches:
- Keep your appearance neat and clean. Look like a criminal, get treated like one. There is a reason why middle-aged women driving minivans rarely get pulled over.
- Keep your car clean. When I say clean I mean get your car detailed at least a couple of times a year. People who leave the inside of their car messy often forget about things they have tossed on the floor or cannot see items other people have left behind.
- Keep your car in good working order. Don’t give the police a reason to stop you. Make sure your car is registered, inspected, and that all the lights work. A busted taillight can cost you thousands and a trip to jail.
- Put questionable items in the trunk of your car. There is no excuse to leave illegal items in the passenger compartment of your car. Better yet, don’t put anything illegal in your car.
- Don’t attract unwanted attention. If your stereo has to be that loud for you to hear it, get your hearing checked. All you are doing is inviting the police to pull you over and give you a hard time.
- Don’t carry drugs on your person. This is common sense regarding illegal drugs, but prescription drugs carried outside the containers they are dispensed in can get you arrested as well.
- Don’t carry cigarette packages or hide your drugs inside them. This is the first place police look for dope.
- Don’t leave smoking paraphernalia where police can see it. Nobody believes you use that bong or water pipe to smoke tobacco! If an officer sees something like that it will only confirm that he or she really needs to find some legal way to search you, your car, or your home.
- Be careful what a police officer can see when standing at your front door. A police officer standing at your front door can look inside when you open it. What the police see from your front door is considered in “plain view” and thus not an actual search. Once the police have lawfully seen something illegal in your home they can then seize it and get a warrant to look for more.
- If you can see out, the police can see in. Looking through a window does not constitute a search in most instances. No one should be able to look into your home and watch what you are doing without you knowing about it. Put up window shears or install windows with either faceted glass or glass that distorts the viewable image.
The most important thing to remember when asked for consent to search is to say “NO”.
Contact the Best Search and Seizure Attorney in Texas: The Charles Johnson Law Firm
If you have been arrested, detained, stopped, or investigated in Houston or anywhere in the state of Texas, you may have legal defenses available to the contest the charge or mitigate possible penalties. Houston Criminal Lawyer Charles Johnson has extensive experience defending cases involving Fourth Amendment violations, motions to suppress evidence, and illegal police searches.
The Charles Johnson Law Firm is committed to providing the highest-quality defense. As a criminal defense law firm, they are dedicated to protecting their clients’ rights throughout the legal process. Attorney Johnson offers a free initial consultation that can be done over the phone. Contact him directly anytime night or day at (713) 222-75778 or toll-free at (877) 308-0100.
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Over the many years of representing clients in the Houston area, Federal Drug Lawyer Charles Johnson has handled the cases of many individuals charged with drug charges and or drug related offenses and have come to understand that good people fall into bad times and then bad situations. Sometimes people break the law because they wanted to provide a better life for their families. You begin to understand the forces that shape humans, and you better understand why and how someone could end up in the backseat of a cop car, and you want to help.
Houston Drug Possession Lawyer Charles Johnson sees more criminal cases involving drug charges than probably any other criminal offense aside from drunk driving. In times of economic depression people turn to drugs and alcohol as a way of dealing with the stress of job loss and financial insecurity. It is no secret that until the United States Government treats drug use and abuse like a health issue instead of a crime there will always be a need for an Houston Drug Lawyer who specializes in helping people avoid jail time for drug possession charges, drug trafficking charges and/or other drug-related offenses. Our top ranked Federal Drug Lawyers are not only well-equipped to provide you with assistance through your Possession of a Controlled Substance case, but you will also find that they are also willing to listen to what you are going through without judgment or recrimination. We get that no one wakes up and decides to become a heroin or meth addict. It is the end result of a slippery slope that addicts and users have been sliding down for years.
If you are looking at Federal Level cocaine charges or heroin possession that also as related charges of “intent to distribute” or possibly other related offenses that elevate your drug crimes to the level of federal rather than local attention, you need to hire the experienced Houston Drug Trafficking Lawyers at the Charles Johnson Law Firm. There is a huge difference in not only the drug possession charges themselves, but how they must be handled. Courts are sometimes willing to overlook a possession of a controlled substance – even cocaine charges if the amounts imply a “personal use” and if it is your first offense. If your case involves not only a drug possession charge but also with intent to distribute, the courts are looking to put you away for a long time. Houston Drug Crimes Attorney Charles Johnson will mount an aggressive offense to suppress evidence, as well as paint you as a human being with a story that is worth listening to.
Those who have been arrested with large quantities of drugs are without a doubt seen automatically as villains, as opposed to those who have personal use levels. These individuals require that their drug offense lawyer suggest drug rehab or other inpatient program that will satisfy the courts that the person is taking the drug possession charge seriously. When, however, you have been arrested in Houston on drug charges that also involve drug trafficking or intent to distribute you must quickly move to mount an aggressive defense that looks to suppress evidence. The Charles Johnson Law Firm will work tirelessly to move to suppress, to push for discovery, and mount a strategic and hard-hitting defense. This is the type of Federal drug defense lawyer you need, not someone who is rushing from court to court handling arraignments and accepting the first plea deal an ADA throws out.
Moreover, you will find as you look around that many of the cheaper, flat-rate attorney’s are actually only marijuana attorney’s and not the type of aggressive drug defense lawyer who can stand up to the Feds and mount the type of defense that will see you back in your home watching the Superbowl next year. You don’t want to find out once it is too late that your drug lawyer has never handled a case of your size before. When you are looking for lawyers for drug charges, especially in cases of distribution or potential trafficking, you must find an experienced drug defense lawyer. Drug possession charges are one thing, drug distribution or trafficking is another. You need a skilled Federal Drug Trafficking Lawyer to handle this type of case.
Federal crimes such as those involving drug trafficking have high conviction rates. Without a dedicated, experienced Houston drug possession lawyer on your side you could very well be looking at a great deal of jail time for your drug-related offense. Houston Drug Attorney Charles Johnson will work aggressively to suppress evidence, create plea bargains or find grounds for dismissal. He will not rest until he finds some means of mitigating, lowering, or dismissing the charges against you. When you are seeking out lawyers for drug charges look to us!
That’s our promise to you. Call Houston Lawyer Charles Johnson today at 713-222-7577 to see how Houston’s #1 rated Criminal Firm can help your case. Attorney Johnson is directly available 24/7.
About Drug Trafficking
Drug trafficking is generally referred to as the manufacturing, transporting and distributing of large quantities of drugs. It often involves more than one person. Drug trafficking charges are wide and varied depending on the scope of the trafficking. Additionally, if the drug trafficking was directed towards minors, then prosecutors will seek enhancements to the charges. State and federal governments have adopted strict laws and severe penalties regarding the trafficking of drugs. Penalties can approach seven figures and decades in prison for severe cases. Houston Criminal Lawyer Charles Johnson has proven how to successfully approach and handle these types of cases and he should be contacted immediately when an arrest is made for drug trafficking.
Drug Trafficking is probably the most charged offense in federal court and is also quite prevalent in state courts. Because of the severity of the sentences, evidence and all circumstances and conditions regarding your arrest will be thoroughly examined by the Charles Johnson Law Firm and their team of experienced investigators. Drug trafficking cases can be quite involved, and with the vast amounts of drugs coming in from Mexico, prosecutors are aggressively pursuing convictions.
Types of Drug Trafficking Laws
Drug trafficking laws vary by country and region, but generally include distribution, manufacturing, and dispensing certain categories of controlled substances. Usually, the drugs are classified according to type and the addictive nature of the drug. Highly addictive narcotics like heroin and crack typically fall into one class, while marijuana and prescription drugs are considered less harmful. International drug trafficking laws are commonly handled under customs law.
Possession of drugs with the intent to sell routinely falls under drug trafficking statutes. If someone is found with a large amount of narcotics, it may be presumed that he or she intends to distribute the drugs for money. Different regions determine how much and what kind of drug is considered outside limits for personal use. Penalties for violations of these drug trafficking laws are often based on the quantity of the substance and its type.
Those who manufacture drugs may be charged under drug trafficking laws in most places. These sections of the law typically include possession of chemicals or equipment needed to make the controlled substance. Narcotics laws in each country outline the exact chemicals or equipment considered illegal.
Drug trafficking laws may include a provision that allows law enforcement to seize assets used to commit a crime. For example, if drugs are sold from a house or vehicle, a judge may order that those assets be forfeited to the government. The property is typically sold at a public auction, with the proceeds going to fund narcotics operations.
Almost any scheduled narcotic can qualify for a drug trafficking charge. In state courts the amount of drugs (cocaine, cannabis, extasy, crystal meth, acid, heroine, prescription medication) will determine if a possession charges becomes a trafficking charge. Even if you are only going to used the drugs for your personal consumption, the amount that you possess could bring a trafficking charge. You may also qualify for a distribution charge if it appears that a small amount of drugs was packaged for distribution. Each state is different as to the amount necessary for the trafficking charge. Under the federal statute you can be charged for the amount you have and or the amount you were trying to buy from a government agent. You may never actually possess the drugs, but you will be charged.
Supplying drugs to children or using minors to distribute narcotics generally carries tougher penalties than those that apply to adults. In some areas, maintaining a home for the purpose of making or distributing drugs where children live is also considered a more serious drug trafficking offense. Stiffer sanctions might also be imposed for those who sell drugs near schools, playgrounds, arcades, and other areas where children congregate.
Laws also exist that regulate drug trafficking by criminal gangs or organized groups. Penalties might be enhanced if weapons are used in the distribution of a controlled substance. Those with profits from organized sales of narcotics can also be prosecuted under money laundering statutes in some jurisdictions.
Defenses for Drug Trafficking Charges
Houston Criminal Lawyer Charles Johnson will provide skilled advice and representation to clients facing state or federal drug charges. He is considered an expert when defending against charges related to:
- Interception of a drug shipment
- Drug conspiracy charges
- Interstate drug distribution
- Undercover interstate trafficking stings
- Illegal sale and trafficking of prescription drugs
- Illegal sale and trafficking of cocaine, heroin, marijuana, methamphetamine (meth), MDMA (Ecstasy)
Drug trafficking charges often hinge on the prosecution’s illegal search and seizure of your vehicle, undercover drug operations, and confidential informants who are attempting to make a deal. As an expert lawyer skilled in drug cases, Attorney Johnson will thoroughly investigate how the prosecution came upon the evidence collected and determine if the method of collecting the evidence is in violation of your constitutional rights.
The court will have no choice but to keep any illegally obtained evidence out of trial. Attorney Johnson’s ability to thoroughly investigate drug cases and vigorously challenge the factual and constitutional merits of the prosecution’s case has proven effective in his defense of clients facing drug trafficking charges involving cocaine, heroin, marijuana, methamphetamine (meth) or prescription narcotics.
Even if the police find drugs directly in a person’s possession, the drugs and other evidence could be suppressed (thrown away) if the police did not follow the proper procedures required under the U.S. Constitution. One of the first things Attorney Johnson will look for when defending someone accused of a drug offense is whether the police themselves acted in a legal manner. Other defenses include areas such as whether the actual weight of the substance was correct when allowing for hydration, whether the chemical composition of the substance was correct as charged, whether there was joint or constructive possession of the substance which could subject the case to a Motion to Dismiss and whether the accused was entrapped into committing the offense by law enforcement or one of its informants.
Another possible defense for drug trafficking charges would involve a violation of constitutional right to counsel and right to remain silent. Once charged or in custody, you are required to be informed of your rights and given access to legal representation if you request it. Contact Houston Criminal Lawyer Charles Johnson immediately upon arrest before saying anything that could be used against you in the future. This can often mean the difference between a conviction and walking away free of any charges. You would be surprised at how many cases result in a conviction due largely to statements made by the accused.
Other possible defenses may include:
- Lack of knowledge
- Mistake of fact (For example, thinking the drug was sugar when in fact, it was cocaine.)
- Duress (For example, if Bob was forced to transport the cocaine because if he refused, something bad would happen to his family.)
- The substance was not intended for human consumption
Lastly, Federal Drug Lawyer Charles Johnson will determine if inappropriate charges were filed. Drug trafficking is a highly political issue, and you may find yourself facing inflated charges. The right attorney can insure that any charges you do face are appropriate to the acts alleged by the prosecutor.
At the Charles Johnson Law Firm, we have the experience and know-how to guide you through this complicated process from the moment of your arrest through trial, if necessary.
The defense of drug-related crimes can be difficult and complex and requires an attorney with special skills, experience and knowledge. Houston Criminal Lawyer Charles Johnson is highly qualified to defend your case. Whether it is identifying a drug addiction issue so that we may assist in getting them treatment or counseling, negotiating a fair resolution in an effort to have charges or a sentence reduced or preparing and taking a case to trial, the Best Houston Criminal Lawyer is available to assist and defend you.
As an extremely experienced criminal lawyer specializing in drug cases at both the Federal and State level, Houston Criminal Lawyer Charles Johnson is well aware of the strategies, theories and methods employed by prosecutors when they prosecute a drug case. Attorney Johnson will use this knowledge to his client’s advantage while defending their cases to get the best possible outcome on their behalf.
We are proud to represent and care about our clients. We know the devastation that a drug conviction, an addiction or incarceration for a drug offense can bring to an individual or his/her family. We will answer your questions and guide you through the whole process, working to take away some of the confusion and uncertainty that comes along any drug offense charge, while all along seeking the most favorable outcome for you or your loved one.
Drug Trafficking by Criminal Gangs
There are nearly 1 million active gang members in the United States, based on analysis of federal, state, and local data, and the involvement of criminal gangs in domestic drug trafficking is becoming increasingly complex. Since 2001, many gangs have advanced beyond their traditional role as local retail drug distributors in large cities to become more organized, adaptable, deliberate, and influential in large-scale drug trafficking. Much of their growing influence has come at the expense of local independent dealers and small local criminal groups who cannot compete with gangs that establish control in smaller drug markets.
The influence of Hispanic and African American street gangs is expanding as these gangs gain greater control over drug distribution in rural and suburban areas and acquire drugs directly from Drug Trafficking Organizations (“DTOs”) in Mexico or along the Southwest Border.
In 2009, midlevel and retail drug distribution in the United States was dominated by more than 900,000 criminally active gang members representing approximately 20,000 domestic street gangs in more than 2,500 cities. These street gangs vary greatly with respect to their ethnic or racial identities, the types and amounts of drugs that they distribute, their strength and influence, and their adaptability. Their prevalence varies geographically, with the greatest concentration of street gangs occurring in the Great Lakes, Pacific, Southeast, and Southwest Organized Crime Drug Enforcement Task Force (OCDETF) Regions.
Many Hispanic and, to a lesser extent, African American gangs are gaining control over drug distribution outside urban areas that were previously supplied by local independent dealers or small local criminal groups. Around 2007, Hispanic and African American gangs throughout the country, but especially in the Southwest and Great Lakes Regions, began to command greater influence over drug distribution in many rural and suburban areas. This trend continued in 2009. For example, in 2009, the Avenues street gang based in Los Angeles, California, expanded its operations to distribute drugs in suburban and rural locations throughout southern California.
To increase their control over drug trafficking in smaller markets, street gangs have been increasingly acquiring larger wholesale quantities of drugs at lower prices directly from DTOs in Mexico and along the Southwest Border. Several Southwest Border street gangs, such as Shelltown 38th Street, Tri-City Bombers, and Vallucos, smuggle wholesale quantities of drugs obtained in Mexico into the United States. By purchasing directly from Mexican wholesale sources in Mexico or along the Southwest Border, gangs throughout the country realize cost savings that enable them to sell drugs at lower prices than local independent dealers in small communities, driving these dealers out of business. For example, members of the Chicago-based Latin Kings street gang who operate in Midland, Texas, purchase cocaine from Mexican traffickers in south Texas for $16,000 to $18,000 per kilogram, compared with $25,000 to $35,000 per kilogram from wholesale traffickers in Chicago. With this savings, the gang undersells other local dealers who do not have the capacity to buy large wholesale quantities directly from Mexican DTOs in Mexico or along the Southwest Border.
Hispanic prison gangs, primarily in Southwest Border states, are gaining strength by working directly with Mexican DTOs to acquire wholesale quantities of drugs and by controlling most street gangs in areas along the Southwest Border.
Prison gangs are active in all 50 states and are increasing their influence over drug trafficking in areas along the Southwest Border (see Table B4 in Appendix B). Prior to 2001, the criminal influence of prison gangs was limited primarily to retail-level drug distribution. However, since that time, Hispanic prison gangs have become increasingly involved in the transportation and wholesale distribution of drugs.
Hispanic prison gangs such as Hermanos de Pistoleros Latinos (HPL) and Raza Unida operating in Southwest Border states have increased their involvement in wholesale drug distribution activities through cooperative relationships with Mexican DTOs. Through these relationships, Hispanic prison gangs are able to gain access to wholesale quantities of drugs. For example, in September 2009, 21 members of HPL were convicted in the Southern District of Texas (Houston) of conspiring to distribute more than 150 kilograms of cocaine and laundering millions of dollars in drug proceeds. In April 2009, 15 members and associates of the Raza Unida prison gang were indicted for trafficking multikilogram quantities of cocaine and methamphetamine weekly in McAllen and Houston, Texas.
To ensure a consistent profit stream from the wholesale drugs that they purchase from Mexican DTOs, Hispanic prison gangs distribute drugs through street gangs that they largely, if not entirely, control. Through force or intimidation, Hispanic prison gangs exercise significant control over local gangs that distribute their drugs in the Southwest Border region. For example, Barrio Azteca prison gang members operating in El Paso, Texas, collect drug payments and taxes from 47 street-level gangs and independent drug dealers trafficking drugs in El Paso.
Potential Penalties for Drug Trafficking
The penalties for drug trafficking offenses vary and depend on a number of factors. These include the type and amount of illegal drugs (also called “controlled substances”) found in a person’s possession, whether the person is a repeat offender and the state in which the person is charged.
Drug trafficking or distribution in Texas is a felony upon which a wide range of penalties may be imposed. It may be anywhere from a state jail felony, which carries the lightest sentence, to a first degree felony, which carries the harshest. The factors influencing which sentence will be imposed are: (1) the amount of the drug being distributed or delivered; and (2) the type of drug and which of the four groups of drugs it is classified under. The smaller the amount of a drug in a certain group, the lighter the sentence may be.
Texas has some very heavy penalties for drug trafficking. Prosecutors may often offer plea deals to defendants where they may offer a charge with a lesser penalty in exchange for information that would help them gather evidence for a higher priority investigation.
The sentences involved may range anywhere from 180 days to two years in state jail and/or a fine of no more than $10,000 for a state jail felony, to life in the Texas Department of Criminal Justice or a term of 15 to 99 years in prison and/or a fine of not more than $250,000 for the heaviest first degree felony. The harshness of the sentence imposed depends on how much of the drug is being trafficked. For example, trafficking or distributing less than one gram of a substance in the first grouping of drugs carries a state jail felony charge, whereas trafficking 400 grams or more of any one of the same drugs carries a first degree felony charge that may include a life sentence.
At the Federal level, the Controlled Substances Act (PL 91-513, 1970, last amended in 2000) provides penalties for the unlawful manufacture, distribution, and dispensing (or trafficking) of controlled substances, based on the schedule (rank) of the drug or substance. Generally, the more dangerous the drug and the larger the quantity involved, the stiffer the penalty. Trafficking of heroin, cocaine, LSD, and PCP, all Schedule I or II drugs (see Table 2.1 in Chapter 2), includes mandatory jail time and fines. A person caught selling at least five hundred grams but less than five kilograms of cocaine powder (seventeen ounces to just under eleven pounds) will receive a minimum of five years in prison and may be fined up to $2 million for a first offense. (See Table 6.1.) The same penalty is imposed for the sale of five to forty-nine grams of cocaine base (“crack”). Five grams are equal to the weight of six plain M&Ms candies, and forty-nine grams are a little more than a bag of M&Ms candies (47.9 grams). The high penalty for selling crack is an expression of the unusual severity with which legislators are trying to curb the use of this drug.
Penalties double with the second offense to ten years in prison and up to $4 million in fines. When higher quantities are involved (five or more kilograms of cocaine powder, fifty grams or more of crack, etc.), penalties for the first offense are ten years, and fines up to $4 million may be levied. For the second offense, twenty years and up to $8 million in fines are given, and the third offense results in mandatory life imprisonment. These examples are for an individual. Higher penalties apply if an organized group is involved or if a death or injury is associated with the arrest event.
These penalties apply also to the sale of fentanyl (a powerful painkiller medicine) or like-acting drugs, heroin, LSD, methamphetamine, and PCP. The smallest amount, which can earn someone a minimum sentence of five years in prison and a fine of up to $2 million, involves trafficking in LSD, where a one-gram amount carries a five-year minimum sentence in prison.
Special penalties exist for marijuana trafficking, since it may be traded in large quantities or grown in substantial amounts. The lower the amounts sold or the fewer the plants grown, the lower the sentence. A person cultivating one to forty-nine plants or selling less than fifty kilograms of marijuana mixture, ten kilograms or less of hashish, or one kilogram or less of hashish oil may get a maximum sentence of five years in prison and a maximum fine of $250,000. Sentences for second offenses involving large amounts of marijuana may earn the trafficker up to life imprisonment.
The penalties for drug trafficking are harsh, and reflect the seriousness of this felony offense and the current political climate. A conviction can lead to jail time, forfeiture of property and fines, but that is only part of the story. It places your current employment in jeopardy, places a severe emotional strain on you and your family, adversely affects your ability to find new work, and places your entire future at risk.
Hire the Best Houston Drug Trafficking Lawyer: The Charles Johnson Law Firm
A drug trafficking conviction can have an extremely adverse effect on a person’s current and future life in many regards. Both state and federal prosecutors have their eye on a conviction of the most severe charges possible and not on your rights. Houston Criminal Lawyer Charles Johnson will work diligently with prosecutors regarding any circumstances or conditions that could result in charges being dropped or reduced. If necessary, our firm can take your case to court and present a strong defense on your behalf.
The Charles Johnson Law Firm expertly handles all types of Texas drug-related offenses, from the less severe, like simple possession of a small amount of certain drugs, to the more serious ones, such as participating in an organized drug trafficking business with sale, distribution and manufacturing activities. We also defend charges involving controlled substances, such as, marijuana, crack, paraphernalia, cocaine, heroin, ecstasy, methamphetamines (meth), hallucinogens such as LSD, oxycontin, oxycodone, hydrocode, xanax, and Rohypnol club drugs. We represent all levels of people charged with drug offenses, from the student or small time person, to the professional, medical doctor or person accused of being a large scale distributor or trafficker.
If you have been arrested for drug trafficking in Houston, TX, take fast action with a skilled and resourceful Houston Criminal Lawyer. Contact the Charles Johnson Law Firm immediately anytime night or day for a free phone consultation to discuss your case.
Houston Lawyer Charles Johnson can be reached directly 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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Houston Criminal Lawyer Charles Johnson is a Federal Drug Defense Attorney. He represents clients who have been charged or are about to be charged with drug charges in Federal Court. The Charles Johnson Law Firm has earned an international reputation as a Leading Federal Drug Law Firm.
Regardless of the federal or international drug charge, Federal Drug Lawyer Charles Johnson has the drug defense experience to handle your case. He has successfully handled sophisticated drug defense cases that included Trafficking, Importation, Distribution and many others. When faced with a federal drug crime there is absolutely no substitute for experience. If you have been charged with drug crime and need a Federal Drug Defense Attorney, contact Attorney Johnson directly anytime night or day at (713) 222-7577. In Federal and International Drug Defense, experience makes the difference.
Federal Drug Crimes Overview
The Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act, classifies narcotics, marijuana and other drugs into five categories, or Schedules. Besides establishing requirements relating to manufacture and distribution of drugs, the law also defines penalties for violations of the Act. Depending on the nature and quantity of the substance involved, as well as the presence of sentence-enhancing factors, the criminal penalties can be severe. If you are facing federal drug charges, call Federal Drug Crime Lawyer Charles Johnson for advice on the law, your rights and how to proceed. He is available around the clock to take your call.
Offenses at the Federal Level
Federal drug offenses differ from those at the state level, even though the conduct in question might be the same. In defining crimes, Congress’ authority comes from its Constitutionally-granted powers over the areas of commerce, taxation and the postal service.
Some of the drug crimes under the Controlled Substances Act include:
- Drug trafficking: manufacturing, distributing or possessing with the intent to distribute illicit drugs
- Manufacturing: operating places for the purposes of manufacturing, distributing or using illicit drugs, or endangering human life while so doing
- Continuing criminal enterprise crimes: trafficking in illicit drugs by a person in concert with five or more other persons
- Conspiracy: involves attempts and the promoting and facilitating of manufacture, distribution or importation of illicit drugs
- Protected location offenses: distributing illicit drugs to persons under age 21 or within a school or playground zone; employing persons under age 18 in drug operations
- Simple possession: possessing controlled substances without a valid prescription from a licensed medical practitioner (unlike trafficking, simple possession does not involve intent to distribute the drugs)
Other drug offenses under the Act include investing illicit drug profits in businesses affecting interstate commerce and unauthorized importation of controlled substances. The Drug Enforcement Administration (DEA) enforces the federal controlled substances laws and regulations.
In addition, drug crimes at the federal level may include violations of tax law, such as tax evasion, or engaging in activities prohibited by the Racketeer Influenced and Corrupt Organizations Act (RICO).
Federal Sentencing Guidelines
Federal drug laws specify minimum and maximum terms of imprisonment, based on the type and quantity of drug involved. Likewise, under the Federal Sentencing Guidelines, these factors are taken into account, along with:
- Whether the offense involved injury to another person
- Whether a weapon was possessed or used
- The defendant’s criminal history
While judges have discretion to depart from sentencing guidelines, they must still stay within the mandatory minimum and maximum terms specified by statute. Where the offense occurs in a school or other protected zone, penalties may be enhanced.
Hire the Best Federal Drug Crimes Lawyer: The Charles Johnson Law Firm
Drug crimes can be charged and prosecuted under federal law, state law or both. Because federal drug crimes can carry significantly harsher penalties, it is important to contact a knowledgeable lawyer who is familiar with both federal and state drug laws. If you are facing either federal or state drug charges, call Federal Drug Crimes Lawyer Charles Johnson now at (713) 222-7577. He can explain the intricacies of both systems and vigorously represent your interests.
Charged with a Federal Crime? What To Expect
The following is a short summary of what you can expect if charged with a Federal Crime.
By the time you read this material, you or your loved one will have already entered the Federal Criminal Justice System. Whether you are in custody or in the “free world”, one firm rule applies: Do not discuss your case with anyone but your lawyer. Anything you say can and will be used against you. This is true whether you talk to a police officer, a person you just met in a holding cell, or a “friend”.
RELEASE OR DETENTION
The first thing to worry about is whether you are going to be released while waiting for trial. There is no bond set automatically in federal court. Your family cannot simply pay a bondsman to get you out.
Court Appearance: If you were arrested and taken into custody, you will soon appear before a United States Magistrate Judge. This is not the District Judge that will hear your trial. This Magistrate Judge will decide if there are any conditions that would allow your release.
Pretrial Report: In order to assist the Magistrate Judge, a Pretrial Services Officer will interview you and give the Magistrate Judge a written report about your background and criminal history. The Officer will not ask you about the facts of your case and you should not volunteer any information. If you lie to the Officer, it will hurt you later on.
Chance for Release: You are most likely to be released if you have little or no criminal history, if you have solid employment and family ties in your community, if you are a United States Citizen, and if you are not charged with a serious drug trafficking offense or crime of violence. Even if you are not a good risk for release, the Magistrate Judge must still hold a hearing and find reasons to keep you in custody. The only time this hearing is unnecessary is when you are being held in custody for other reasons — such as a sentence in another case, a parole warrant, or a probation revocation warrant.
When you are facing criminal charges, your choice of legal representation is a critical issue. You must ensure that you have legal representation from a proven attorney with a record of successfully defending difficult cases.
In order to protect your rights and to fight a possible Federal drug conviction, it is very important to hire the Best Federal Lawyer you can find. Your future is at stake, and this is not a time to cut corners. A knowledgeable Drug Crime Defense Lawyer will be able to sort out the details of your drug crime charges and diligently work to provide evidence that will benefit you. At the Charles Johnson Law Firm, we have been successful at lowering or dismissing charges against our clients and will look to do the same for you. To counteract the aggressive investigation and prosecution from the federal government, you will need an equally aggressive criminal defense attorney. Federal Drug Crime Lawyer Charles Johnson understands federal drug crime cases inside and out and will provide an unmatched dedication, commitment and an aggressive approach when defending your case.
Honesty: Defendants often believe it is better not to tell their lawyers the truth about their case. This is not a good idea. Everything you tell your lawyer is privileged and cannot be told to others. The best defense is one that prepares for all the bad evidence the prosecutor may present against you at your trial. Your lawyer must know all the facts. It is foolish to ignore the dangers and simply hope everything will turn out all right. That is the sure way to be convicted.
Bad Advice: If you are in custody, you will probably get a lot of free advice from other inmates. Unfortunately, much of that advice will be wrong. Many of the other inmates are in state custody and know nothing about federal criminal law. Even the ones facing federal charges may give you bad advice; they may not know any better, or they want to mislead you.
Respect: Treat your lawyer with respect and that respect will be returned to you. Lawyers are human beings who tend to work harder for clients who do not mistreat them.
When people talk about “rights” in the federal criminal justice system, they are usually talking about the Fourth, Fifth, Sixth and Eighth Amendments to the United States Constitution. These rights include freedom from unreasonable searches and seizures, the right to remain silent, the right to legal counsel, due process of law, equal protection under the law, protection from double jeopardy, a speedy and public trial, the ability to confront one’s accusers, subpoenas for witnesses, no excessive bail, and freedom from cruel and unusual punishment.
Caselaw: There are many books and thousands of cases that discuss what these rights mean. The law is always changing. A court opinion written in 1934 by a Montana court of appeals is probably no help in your case. Your case will mostly be affected by recent published opinions of the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court.
Application: Not all of these rights apply in all cases. If you never made a statement to the police, then it will not matter whether you were told of your right to remain silent. If you consented to a search of your car, then it will not make a difference whether the police had a search warrant.
There are no benefits to being locked up. Jail has many rules and regulations. Some of those rules are made by the jailers. Some of these rules are made by the United States Marshal.
Clothing: You can get clothing two ways. The way to get underwear, tennis shoes, socks, etc, is to buy them through the jail commissary. Despite what others tell you, your lawyer cannot simply bring you these items. In most instances, trial clothing can be brought to the U.S. Marshal’s office shortly before your court appearance. You will be allowed to change in the holding cell at the federal courthouse.
Other Possessions: Sometimes the jail may allow you to receive magazines by subscription or books mailed from a store. It depends on the jail’s rules. Most other items need to be purchased through the commissary. All jails prohibit your lawyer from bringing you any items, such as cigarettes. You may keep legal documents in your possession.
Visits: Your friends and relatives must follow the jail’s rules when making appointments to visit you. You must put the names of these persons on your visitation list.
At some point you will come to court for an arraignment. This is the time when you enter a plea of “Not Guilty”.
Indictment: Before the arraignment, you will have been indicted by a Grand Jury. Neither you, nor your attorney, has a right to be present at the Grand Jury session. A Grand Jury decides if there is enough evidence to have a trial in your case. If there is not, then the case is dismissed. If there is, the Grand Jury issues an Indictment. An Indictment is the document that states what the charges against you are. The Grand Jury sessions are rarely transcribed, so it is usually not possible to receive a transcript of their sessions.
Hearing: The arraignment takesplace before a Magistrate Judge,notthe DistrictJudge who will hear your case. The Magistrate Judge will ask you several questions:
- Do you understand what you are charged with?;
- Do you understand the potential penalties if you are convicted?; and
- How do you plead to the charges?
Since you will have discussed the case with your lawyer by this time, you will be able to answer the first two questions “Yes”. Your answer to the third question is “Not Guilty”. You cannot plead “Guilty” at an arraignment. Pleading “Not Guilty” will never be used against you.
Discovery: Federal law provides only limited access to the government’s evidence against you. Under local rules, you and your attorney are permitted to have copies of only certain types of documents in the government’s file. The rules of discovery must be strictly adhered to, and your attorney will discuss these rules with you more thoroughly as your case progresses.
Motions: Before or after investigating your case, your attorney may feel it appropriate to file a motion(s), which may be heard before or at trial. You should never file your own motions without fully discussing the proper procedures with your attorney. If you have ideas about specific motions that could be filed your case, you should discuss with your attorney whether those particular motions would be appropriate or beneficial to your defense.
Many defendants want a quick trial. This is usually for two reasons. First, defendants who are in custody want to get out of the county jail as soon as possible. Second, defendants believe that if they are not tried within the Speedy Trial Act’s 70-day time limit, then their cases will be dismissed.
Pretrial Detention: There is no question that conditions in the county jail are not good. However, a defendant is rarely ever helped by going to trial as soon as possible. The prosecutor is prepared to try the case when it is filed. Your lawyer is only then beginning to investigate the case. Your lawyer does not have access to offense reports of the law enforcement officers that have already investigated the case. Also, “aging” a case has other benefits — the case becomes less important over time, witnesses’ memories fade, etc.
Dismissal: There are many exceptions to the Speedy Trial Act. Generally, a prosecutor can get a continuance of the trial whenever requested. The usual reason why a prosecutor requests a continuance is because there are codefendants who have not been arrested yet. The speedy trial deadlines do not begin to run until all charged defendants have appeared in court. Also, any time any of the defendants file motions, the time until those motions are decided is not counted toward the speedy trial deadline.
A felony trial in federal court is decided by twelve jurors. The jurors only decide if you are “Guilty” or “Not Guilty” of the charges in the Indictment. Jurors do not decide punishment. The District Judge decides punishment.
Jury Selection: The trial begins with the selection of the jury. A panel of potential jurors is called to court from voter registration lists. The District Judge, the prosecutor, and your lawyer talk to the panel and ask questions. The lawyers are allowed to keep certain members of the panel from sitting on the jury. The first twelve of the remaining panel members become jurors.
Opening Statements: Before the evidence is presented, the lawyers may make opening statements. Opening statements are when the lawyers tell the jury what they believe the evidence will show.
Order of Proof: The prosecutor presents evidence first. You are presumed to be innocent until proven guilty beyond a reasonable doubt. You do not have to present any evidence or testify. If your lawyer does put on evidence, it will happen after the prosecutor has finished presenting evidence.
Rules: During the trial, the lawyers must follow the rules of evidence and procedure. These rules are complicated. The rules can both help and hurt you. For instance, the rule against hearsay evidence prohibits a prosecutor from calling a witness to testify how he heard about what you did. The same rule will stop your lawyer from introducing an affidavit made by some person who is unwilling to come to court and testify.
Prior Acts: Although you are only on trial for the charges in the Indictment, there are two ways the jury can learn about other accusations against you. First, if you testify then the prosecutor will be able to introduce your prior convictions. Second, the prosecutor can introduce your prior acts –even if they are not convictions — if they are similar to the crime you are charged with (for example, prior drug sales in a drug distribution case).
Final Arguments: After all the evidence has been presented, the lawyers argue the facts to the jury.
Jury Deliberations: Jurors are usually average working people from the community. They are not specially trained in law. They use their common sense when deciding the case. Although the District Judge will instruct them about “the presumption of innocence” and “proof beyond a reasonable doubt”, jurors rely on many things in coming to a decision in a case. Jurors often rely on things such as: the appearance of the defendant, the defendant’s character, and their own biases and prejudices. They cannot be questioned about how they reached their decision.
Verdict: If you are found “Not Guilty”, you will be released. If there is a “Guilty” verdict, then the District Judge will order the Probation Department to prepare a Presentence Investigation Report to assist the District Judge at sentencing. It takes approximately two months between a conviction and sentencing.
Release: If you were previously on pretrial release,the District Judge may continue thatrelease until sentencing, unless you were convicted of a crime of violence or a serious drug trafficking offense.
Statistics show that most defendants plead guilty. You make the decision to plead guilty. That decision is never simple. Some possible benefits of a guilty plea are that:
- the prosecutor may dismiss some charges;
- the prosecutor may not file new charges;
- the prosecutor may recommend a favorable sentence;
- you may get credit for accepting responsibility, etc.
Plea Agreement: Any promises the prosecutor makes for your guilty plea will be stated in a written plea agreement. That agreement is signed by you, your lawyer, and the prosecutor.
Plea Hearing: You must enter a guilty plea in court before the District Judge. The District Judge must ask you many questions so the record shows you understand what you are doing. During the hearing, the prosecutor will briefly tell the District Judge the facts of the case. You must agree to those facts for the District Judge to accept your guilty plea.
Effect of Plea: Once the District Judge accepts your guilty plea, you are just as guilty as if a jury returned that verdict. Once you are convicted of a felony, you lose certain civil rights, including the right to vote; the right to sit on a jury; and the right to possess firearms.
After Plea: The procedure after a guilty plea is the same as after a conviction at trial. A Presentence Investigation Report will be ordered and you will either be released or detained until sentencing (see “Trial” section).
Some defendants give prosecutors information against other persons for the possibility of a reduced sentence. There is no guarantee that a defendant will get a lower sentence for “giving people up”. Cooperation usually requires a defendant to testify in court or before a Grand Jury.
Many times, federal defendants are first arrested by state officers on state charges. Sometimes, even when federal charges are filed, the state charges are not dismissed. It is possible to be convicted of both state and federal charges for the exact same offense. This is not “double jeopardy”. It is also possible to receive “stacked time” (a consecutive sentence), by pleading guilty to an unrelated state or federal case before being convicted in your federal case. Be careful not to do anything about your other cases without telling your attorney. If you are summoned to “jail call”, do not agree to plead guilty to your state charge in exchange for “time served” without telling your lawyer. Despite what the state prosecutor may tell you, this conviction will affect your federal sentence.
Sentencing takes place approximately three (3) -six (6) months after you have been convicted by a jury or guilty plea. The District Judge decides the sentence. Unlike state court, you cannot simply agree with the prosecutor to serve a particular amount of time or probation.
Federal Sentencing Guidelines: The District Judge decides your sentence based upon a book called the “Federal Sentencing Guidelines Manual”. That book works on a point system. You get points for the seriousness of the offense and your role in the offense. Points may be subtracted if you accept responsibility for the offense or if you were only a minor participant. The Manual also considers your criminal history. Your criminal history is the record of your prior convictions in state and federal courts. A chart at the back of the Manual determines your sentencing guideline range, based upon your criminal history points and the points you received for the offense conduct.
Mandatory Minimum Punishments: Some drug and firearms cases have mandatory minimum punishments. These minimum punishments apply even if the Federal Sentencing Guidelines would otherwise give you a lower sentence. For instance, anyone possessing over 280 grams of crack cocaine after August 3 2010, with the intent to deliver it, must receive at least ten (10) years in prison; even if that person is a first offender.
Departures: If the District Judge sentences you to more or less time than your sentencing guideline range, it is called a “departure”. Departures are unusual. The District Judge must have a good legal reason for a departure. The District Judge cannot depart downward below a mandatory minimum punishment, unless the reason is that you have provided substantial assistance to the government in the prosecution of others or you qualify for the “safety valve” provision as a first offender. Only drug cases qualify for the “safety valve”.
Presentence Investigation Report: Before the sentencing hearing,the District Judge will review a Presentence Investigation Report prepared by a Probation Officer. That report summarizes the offense conduct, your criminal history, and other relevant background information about you. Most importantly, the report calculates a range of punishment for the District Judge to consider in your case. The Probation Officer creates the report based upon information from the prosecutor, independent investigation, and an interview with you in the presence of your lawyer.
Interview: It is important to be honest with the Probation Officer at the presentence interview. If you mislead the officer you may increase your sentence for “obstruction of justice”. Also, you will not get credit for accepting responsibility unless you talk truthfully about your crime. Do not talk about any other conduct for which you have not been convicted, unless your lawyer tells you to.
Objections: Before the District Judge gets the Presentence Investigation Report, it will be sent to your lawyer. The probation office will also mail a copy directly to you for your inspection. Review it carefully. If there is anything incorrect about the report, your lawyer can file objections. Some mistakes are more important than others. If the report says your car is red rather than blue, that is probably not important. If the report says you have five (5) prior felonies when you do not, that is important.
Sentencing Hearing: At the sentencing hearing, the District Judge will review your objections to the Presentence Investigation Report and make findings about any facts or legal issues that cannot be agreed upon. Your lawyer will address the legal issues and point out the facts in your favor. District Judges do not want to hear from witnesses who are just there to plead for a reduced sentence. Letters of recommendation and other helpful evidence should be provided to your lawyer well before sentencing so the District Judge can see them before the hearing. Before the District Judge pronounces sentence, you can make a statement.
Concurrent and Consecutive Sentences: No area of law is more confusing to defendants and lawyers than whether multiple sentences (more than one) may be served at the same time (concurrent) or one after another (consecutive).
Present Charges: If your federal Indictment has several related charges, and you are convicted of them, you probably will serve these sentences at the same time. However, it is possible for the District Judge to “stack” unrelated convictions so each must be served before another begins.
Other Charges: Sometimes a defendant is already serving a sentence before being convicted in a federal court. Unless the District Judge specifically orders the new sentence to run at the same time as the previous sentence, they will be stacked and will run consecutively. You would have to finish your other sentence before the new one begins. Even if the District Judge runs the new sentence at the same time as your previous sentence, you will not get credit for the time you served prior to sentencing.
If you were on release until sentencing, you may be allowed voluntary surrender. This means about 45 days later you report directly to the federal prison designated for sentence. Otherwise, you would go directly into custody if you received a prison sentence.
An appeal is not a new trial. An appeal is a review of your case by the United States Court of Appeals for the Fifth Circuit, which is located in New Orleans, Louisiana. You may only appeal after you have been sentenced. A notice of appeal must be filed within 10 days after judgment (your sentencing order) is entered, or you lose that right. Transcripts of all testimony, and all the legal documents in your case, are sent to the Court of Appeals. The Court of Appeals decides whether the District Judge made any mistakes in ruling on the law in your case. If the Court of Appeals decides there were some important mistakes made by the District Judge in your case, the usual remedy is that you will be allowed to have a new trial or a new sentence. That is called a “reversal”. It does not happen often. It is nearly impossible to be released while your appeal is being decided. The decision to appeal should be made only after a careful discussion with your lawyer. The Fifth Circuit is strict about accepting cases that raise legitimate issues. A claim that you received “too much time” will not prevail in the Fifth Circuit. The Fifth Circuit will dismiss your appeal if you do not present an issue they consider meritorious. Also, you and your lawyer can be sanctioned (punished) if you present a “frivolous” issue on appeal.
Probation means your term of imprisonment is suspended, you must follow restrictive conditions, and report to a probation officer. Probation is not available for federal drug trafficking crimes. Except for minor fraud cases, most federal defendants do not get probation. “Shock Incarceration” or “Boot Camp” is not probation. That is a military discipline program followed by time in a halfway house. It is available mostly to young, nonviolent, first-time offenders.
Most defendants who are sentenced to prison go directly into custody or continue to remain in custody. Where the sentence will be served depends on several factors.
State Custody: If the reason you first came into custody was a state charge, parole warrant, or probation revocation warrant, then you are in state custody, not federal custody. Neither the United States Marshal, nor the District Judge, has the authority to take you from state custody so that you may begin serving your sentence in a federal institution. This means you will remain in the county jail, or the Texas Department of Criminal Justice, until your State of Texas (or whatever other jurisdiction you owe time) sentence is completely served. Even if you got a federal sentence that is to run at the same time as your previous sentences (see “Sentencing” section), you will do that time in the other jurisdiction’s prison.
Jail Credit: In the federal system, the district judge does not have the authority to award jail credit at your sentencing hearing. See United States v. Wilson , 112 S.Ct. 1351 (1992); 18 U.S.C. §3585(b). Under the statute giving a defendant convicted of federal crime the right to be credited for time spent in official detention before sentence begins, the Attorney General is required to compute credit after the defendant has begun to serve his sentence, rather than the district court at time of sentencing. Statute giving defendant convicted of federal crime right to receive credit for time spent in official detention before sentence begins does not authorize district court to award credit at sentencing.
Federal Custody: You are in federal custody if you were brought in on a federal warrant. It does not matter that you are being held in the county jail or that state charges or revocations are later filed. It is always better to be in federal custody, because the State of Texas will give you credit for serving your state sentences no matter who has custody of you.
Designation: If you are in federal custody, then a federal institution must be designated for your sentence. This designation takes about one (1) month and is made by the Federal Bureau of Prisons. During that month, you will probably remain in a county jail. The decision about where you will go depends upon the seriousness of the crime, your criminal history, the location of your family, among other things. A recommendation by the District Judge to send you to a particular place is not binding on the Bureau of Prisons.
Good Time Credit: The Bureau of Prisons can give you up to 54 days a year of “Good Time Credit”. This is time subtracted from your sentence. The credit is a privilege for good behavior, not a right. It does not begin to be counted until after your first year in prison.
Release: There is no parole in the federal criminal justice system. You will serve the majority of your sentence, minus Good Time Credit. You will receive a term of supervised release that begins after you are released. Like probation or parole, supervised release means you have to follow rules and report back to a probation officer. Violating supervised release can mean going back to prison.
You must use your own judgment about writing letters. You should not write about the facts of your case to anyone other than your lawyer. If you have any questions about your case or suggestions about it, you should contact your attorney immediately.
Federal Drug Charges in Houston, TX
Houston is in a unique position because of its convenient location. It is a criminal hotbed for illegal drug activity and because of its reputation, law enforcement; the FBI and the DEA are on high alert when it comes to detecting and convicting those guilty of trafficking or other federal drug crimes. Because drug activity is so rampant in Texas, the state has exceptionally harsh penalties for those who commit federal drug crimes. How one is prosecuted will depend on whether or not they have any priors on their record, the type of drug, and the quantity. A prison sentence for a federal drug crime can be as little as five years or it can be as long as life in prison.
The state of Texas has long been involved in a “war on drugs.” Federal prosecutors in the state of Texas come down hard on criminals involved in selling, distributing and trafficking large amounts of drugs. Not only do you face years in prison if convicted, non-citizens face deportation from the United States. At The Charles Johnson Law Firm, we are here to defend you against Federal Drug Charges.
Houston Federal Drug Crimes Lawyer Charles Johnson comprehends the differential factor between State and Federal drug crimes. If in fact you or a loved one are under investigation for a drug crime, or if you have been apprehended for or charged with a drug crime in Texas or Houston, you could face harsher punishment than you expect. If you or a loved one’s alleged crime is based upon large amounts of illegal drugs, transporting or distributing drugs over state lines or over and across the border, or other specific details, you could face federal drug crime charges rather than state charges.
The significant thing to know pertaining federal drug crimes is that a conviction will carry a much harsher punishment, a longer mandatory at the very least sentence, and the possibility of no bond or bail. Attorney Johnson defends cases at the Federal Level that involve drug crimes such as:
- Federal drug trafficking
- Federal drug manufacturing
- Federal drug sales and distribution
- Internet drug distribution
- Federal drug importation and transportation
- Mailing drugs over and across state lines or national borders
- Drug smuggling into or out of the United States
- Other crimes related to drugs and money laundering
Contact Houston Lawyer Charles Johnson anytime night or day to discuss your case. You can speak with him directly by calling (713) 222-7577. If in fact you or a loved one think you are part of a federal drug investigation, don’t wait to contact a lawyer you can trust. Rest assured that The Charles Johnson Law Firm will zealously defend you against any type of Federal Drug Charge.
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The Leading Houston Criminal Lawyers at the Charles Johnson Law Firm aggressively defend clients charged with a sexual offense. The firm handles all sexual offense charges, whether in state or federal court, and whether the sex crime allegations are against children or adults.
Parties in contentious divorce or custody proceedings have been known to encourage children to say the other parent “touched” them a certain way or otherwise imply molestation. Child care workers, pastors, teachers, coaches, and others are frequently falsely accused. Parents have even been known to target individuals for extortion by coaching children. They may be coached by well-meaning social service and health care professionals, law enforcement officers, and prosecuting attorneys who want to make sure they obtain a conviction regardless of the truth.
Allegations of sex crimes are taken very seriously in Texas, and across the nation. With more stringent penalties being imposed, a false claim unchallenged or a single error in judgment can require you to be a lifelong member of the sex offenders’ registry and database. Before your reputation is devastated, invoke your right to an attorney and your right to remain silent. Contact the Charles Johnson Law Firm for a free phone consultation when you are under investigation for sex crimes or if charges have been brought against you for anything from possession and distribution of child pornography to sexual assault and rape.
How is Child Pornography Defined?
Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor. Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.
Under federal law (18 U.S.C. §2256), child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where
- the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or
- the visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
- the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
- Federal law (18 U.S.C. §1466A) also criminalizes knowingly producing, distributing, receiving, or possessing with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that
- depicts a minor engaging in sexually explicit conduct and is obscene, or
- depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and such depiction lacks serious literary, artistic, political, or scientific value.
Sexually explicit conduct is defined under federal law (18 U.S.C. §2256) as actual or simulated sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex), bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.
Who Is a Minor?
For purposes of enforcing the federal law (18 U.S.C. §2256), “minor” is defined as a person under the age of 18.
Is Child Pornography a Crime?
Yes, it is a federal crime to knowingly possess, manufacture, distribute, or access with intent to view child pornography (18 U.S.C. §2252). In addition, all 50 states and the District of Columbia have laws criminalizing the possession, manufacture, and distribution of child pornography. As a result, a person who violates these laws may face federal and/or state charges.
Where Is Child Pornography Predominantly Found?
Child pornography exists in multiple formats including print media, videotape, film, CD-ROM, or DVD. It is transmitted on various platforms within the Internet including newsgroups, Internet Relay Chat (chatrooms), Instant Message, File Transfer Protocol, e-mail, websites, and peer-to-peer technology.
What Motivates People Who Possess Child Pornography?
Limited research about the motivations of people who possess child pornography suggests that child pornography possessors are a diverse group, including people who are
- sexually interested in prepubescent children or young adolescents, who use child pornography for sexual fantasy and gratification
- sexually “indiscriminate,” meaning they are constantly looking for new and different sexual stimuli
- sexually curious, downloading a few images to satisfy that curiosity
- interested in profiting financially by selling images or setting up web sites requiring payment for access
Who Possesses Child Pornography?
It is difficult to describe a “typical” child pornography possessor because there is not just one type of person who commits this crime.
In a study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).3
Forty percent (40%) of those arrested were “dual offenders,” who sexually victimized children and possessed child pornography, with both crimes discovered in the same investigation. An additional 15% were dual offenders who attempted to sexually victimize children by soliciting undercover investigators who posed online as minors.4
Who Produces Child Pornography?
Based on information provided by law enforcement to the National Center for Missing & Exploited Children’s Child Victim Identification Program, more than half of the child victims were abused by someone who had legitimate access to them such as parents, other relatives, neighborhood/family friends, babysitters, and coaches.
What is the Nature of These Images?
The content in these illegal images varies from exposure of genitalia to graphic sexual abuse, such as penetration by objects, anal penetration, and bestiality.
Of the child pornography victims identified by law enforcement, 42% appear to be pubescent, 52% appear to be prepubescent, and 6% appear to be infants or toddlers.
Possible Punishment for Sexual Exploitation of a Minor/Child Pornography
If the photographs include children who are fourteen (14) years of age or younger, it is a Dangerous Crimes Against Children (DCAC) and carries a very severe penalty. A first offense carries the following punishment for each and every conviction: ten (10) years minimum in prison; seventeen (17) years presumptive in prison; twenty-four (24) years maximum incarceration.
If convicted of one previous predicate felony (which includes a prior DCAC, among other serious felonies), the range of punishment increases to a minimum twenty-one (21) years, presumptive twenty-eight years (28), and maximum thirty-five (35) years. Because this is a DCAC, 100% of the prison time must be served before being eligible for release. In addition, if the person is convicted of two (2) counts, they must be run consecutive to each other (i.e., the minimum is now twenty (20) years in prison, and all other ranges double). This is why these charges are sometimes referred to as “life enders”.
The maximum penalty on a Sexual Exploitation charge actually carries more time than the maximum penalty on a Second Degree Murder charge. A conviction will require you to register as a Sex Offender for the rest of your life, and you are not allowed to have any contact with anyone under the age of eighteen (18) (this includes your own children), without going through numerous testing procedures and only with the consent of your Probation Officer.
If the child was ages fifteen – seventeen (15-17), it is not sentenced pursuant to the DCAC statute. A first offense class two (2) felony, carries punishment of probation with zero (0) days in jail up to one (1) year in jail, or prison of three (3) years to twelve and one half (12.5) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the “prison only” range is four and one half (4.5) years to twenty-three and one quarter (23.25) years in prison. If the person has two (2) allegeable historical prior convictions, then the “prison only” range is ten and one half (10.5) to thirty-five (35) years of incarceration.
Possible Defenses for Sexual Exploitation of a Minor/Child Pornography
The critical defenses to Child Porn charges involve showing that the person did not “knowingly” possess, receive, or do any of the listed actions with the images. One way of asserting this defense is by presenting evidence that the defendant was not the person who accessed the images. If it can be shown that there were multiple users who had access to the computer, and who did in fact use the computer often, then it is much more difficult for the State to prove the defendant actually accessed the images, rather than some other person. This defense is especially appropriate when the defendant lacks any other sexual crime convictions. In order to assert this defense, we need to present a variety of our own evidence to contradict whatever has been presented by the prosecution. Typically, the State would normally have executed a search warrant and confiscated the computer involved, then searched for the “IP address” and passwords that were used to trace the activates to a particular time, date, and user. Before they do any of this they will have “cloned” the hard drive in order to avoid any accusations that they have somehow tampered with the computer by adding images.
Another typical defense is that the defendant inadvertently came across the images on his computer, and thus it was not a “knowing” exchange. It is an affirmative defense to Child Pornography charges if a person timely reports that they have received unsolicited images on their computer. Usually, reporting within three (3) days of discovering the child pornography is considered to be “timely reporting.”
The Top Houston Criminal Lawyers at the Charles Johnson Law Firm handles a very high percentage of the “Sex Crimes” cases. They have one of the largest libraries with research materials devoted to challenging accusations involving sex crimes. Registering as Sex Offender has drastic consequences and leaves a black mark on your record; do not underestimate the potential severity of this charge.
Additionally, because the Charles Johnson Law Firm fights conviction from all angles, they will assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those that is frequently asserted is a “Miranda rights violation.” In Texas, the standard of whether any incriminating statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements.
In addition, the “denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what else you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; computer analysis/cloning hard drive procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
Do Not Make Statements. Obviously, the best defense begins before a defendant is ever charged. Often, in a misguided attempt to help law enforcement, defendants make statements that are twisted and turned into prosecutorial evidence. It is important to remember not to allow yourself be interviewed government agencies without an attorney present.
Any interview will be sent to the police and the county attorney’s office and can be used against you. An obvious corollary is do not let yourself be interviewed again by the police without your attorney present.
Computerized Evidence. Internet child pornography is a growing offense across the nation. Often files can be downloaded to a computer without the user knowing the content of the download. In such cases the electronic file will often include tell tale electronic evidence about the file, where it came from and its date of download. Using this evidence or challenging law enforcement’s sloppy investigation and acquisition of potentially exculpatory information is the best way for a defense lawyer to prove actual innocence.
Examine Prosecution Expert’s Background. An important part of every case is the ability to counter the reports and testimony of computer professionals, caseworkers and “experts” who examine pornographic evidence. To effectively counter a prosecution expert, the defense attorney must be well educated on the expert’s education, work history, published works and testimony in prior cases.
Use a Polygraph. When it is advantageous to the defense against a sexual assault, defense attorneys should obtain a credible polygraph examination from a respected professionals.
Texas Sex Offender Registration
In addition to the prison terms and fines one can face when convicted of any of these offenses, you may be required to register as a sex offender. This means you will be tracked for the rest of your life.
Knowing where to turn when facing charges as dark as these can be difficult. You have likely already seen people turn their backs on you because of the charges and you haven’t even gone to trial. You need someone in your corner fighting for your good name.
You are innocent until proven guilty. The Best Houston Criminal Lawyers will see to it that you get the best possible results on your day in court.
Hire the Best Houston Child Pornography Defense Lawyer: The Charles Johnson Law Firm
The Top Houston Criminal Defense Lawyers at the Charles Johnson Law Firm defend against sexual assault allegations throughout Texas, no matter how small or large the city. They have developed a unique understanding of the dynamics of these very serious cases. Their competent, aggressive and thorough representation has made them a leading criminal defense firm in dealing with sex and pornography related criminal charges.
Defending in these areas is a very specialized area of criminal defense. Unfortunately, the very accusations themselves are often treated as conclusive proof of criminal activity. If Attorney Charles Johnson is retained at an early stage in the investigation, he is sometimes able to avoid charges altogether. At a minimum he will be able to avoid the trauma and embarrassment of his client being arrested at home or at the workplace by contacting law enforcement and the court in order to make the necessary arrangements.
Depending on the facts of your case and the evidence against you, the Leading Houston Criminal Defense Lawyers will work to help you beat a false accusation or try to lessen the punishment. We understand your freedom is at stake and that a conviction of possession of child pornography may result in lifetime registration as a sex offender. To protect your rights and liberty, we conduct thorough investigations to prepare for trial or to minimize the consequences or sentence.
Call today for your free consultation.
Houston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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Houston Criminal Lawyers: Coping With An Arrest For Child Porn?
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Judges might be incorrect in their rulings. Innocent Texas criminal defendants are given unjust sentences regularly and needlessly suffer. These incorrect convictions generally occur because of very common errors made during the defense process. Quite often, the verdict might be corrected by seeking a Texas federal or state criminal appeal aided by highly trained Houston Criminal Lawyers familiar with the appellate process.
What is the definition of an appeal?
An appeal is defined as a request to a higher court by the losing party in a court action to overturn a lesser court’s verdict. The basis of an appeal has to be a reversible fault within the application of what the law states at the trial court level (i.e., in line with the facts, the court evidently misapplied the law).
In defense cases, a great appeal might concentrate on the conviction on its own or merely the sentencing portion associated with the decision without the need of regard to the particular fundamental conviction. By way of example, if the defendant is properly found guilty of manslaughter but a judge sentences the defendant to a prison term which is beyond the limit of the law, the defendant will undoubtedly appeal the prison term while leaving the actual conviction itself intact.
An appeal shall be filed only after the final judgment or order has been reached by the trial court. This is quite simply for reasons of efficiency, so that the court system isn’t bogged down by delays and trials aren’t continuously put on hold while waiting for appeals for the judge’s every verdict.
At the culmination of a trial, the losing party is also able to produce direct appeals (e.g., motion for a new trial, motion for directed verdict) to the presiding judge to instantly overrule the jury’s verdict, nevertheless these are hardly ever victorious.
Does an appeal constitute a new trial?
No. In a appeal there won’t be any brand new issues provided or witnesses designated to testify. The appellate court will simply assess the trial’s transcript and evidence introduced in the course of the trial to ascertain whether or not there were mistakes within either procedure or application of the law. Even though there were problems, when they are judged small – legally designated “harmless error” – the judgment won’t be overturned or a new trial granted.
Can any type of judgment be appealed?
The short response is no, there isn’t any absolute right to an appeal. Every state has laws which outline the sorts of cases that appellate courts may evaluate. There should be an error of law for an appellate court to evaluate a case. The reality that the losing party didn’t like the decision isn’t enough to sustain an appeal.
That being said, even in administrative courts or lower level courts, if a person’s constitutional protection under the law have been infringed upon, some might file a suit in order to enforce his or her privileges and/or to take another look at the original case.
What is the definition of the appeals process?
In Texas court proceedings, the appellant or petitioner (the party appealing the judgement) has to file a notice of appeal within thirty days of the verdict. In federal court, the deadline is sixty days. The filing of the notice of appeal starts the clock running on the appeals process and there are prescribed deadlines from this point on. The petitioner submits a legal brief detailing the alleged mistakes of law made by the trial court, and the respondent or appellee (the party that prevailed at the trial) creates an answer.
Once the appellate court receives both petitioner and respondent briefs, it will consider the arguments and prepare a determination of whether: a) there were errors of law made by the trial court, and additionally b) whether the errors rise to the level of “reversible error” (extremely serious errors). As mentioned above, harmless errors are likely to be disregarded by the appellate court.
There might or might not be oral arguments presented by petitioner and respondent. If the court makes a decision to hear oral arguments, the petitioner will present their arguments and additionally field inquiries from the judge(s) and then the respondent will do the same. Usually in most appeals, this question and answer format may last ten to fifteen minutes per side.
Whether the appeals court listens to oral arguments or issues a verdict centered merely on the written briefs, the court will either: 1) affirm the decision; 2) request a new trial; 3) change the ruling in some manner; 4) give consideration to new facts or evidence (seldomly); or 5) in particularly exceptional cases, may possibly dispose of the case completely.
What is the likelihood of a winning appeal?
The number of winning appeals is in fact minimal. Appellate courts allow the trial court great freedom in carrying out trials. The law is unable to promise ideal trials, accordingly appeals courts can only overturn decisions that have obvious, substantial errors of law.
Because of the flexibility appeals courts give trial decisions, petitioners bear a far greater responsibility in verifying that errors of law happen to be considerable rather than innocuous. If an appellate court can discover any satisfactory argument that the mistake could not have modified the decision (and is hence “harmless”), it will refuse to overturn the verdict.
There tend to be, naturally, a large number of cases where significant errors were made and appeals courts will overturn those decisions. Significantly serious are charges that the trial court refused the law assured by the constitution, most notably due process and equal protection rights.
I lost my trial due to the fact that my attorney made ridiculous errors, can’t I count on an appeal to correct them?
Don’t depend on appeals to compensate for any genuine or perceived inadequacies at trial. You must put all of your energy into the trial itself, which requires locating the correct lawyer to attempt the case. Effectively appealing a verdict since you had a deficient attorney is a challenging proposition. You cannot appeal simply because you just had a poor lawyer.
You can appeal on the basis that your attorney was so incompetent that you simply had been basically denied your 6th Amendment right to a fair trial (identified legally as an “ineffective assistance of counsel” appeal). This occurs virtually exclusively in criminal defense circumstances and the standard for the appeal is quite high – courts are incredibly deferential to the competency of attorneys and maintain a strong presumption that the lawyer’s help was within professional standards. To put it in perspective, there have been situations where an attorney has fallen asleep during a trial, yet the verdict was not overturned nor the case retried.
Many circumstances aren’t eligible for appeal due to the fact the trial attorney did not object to a ruling during the trial, and therefore didn’t “preserve” that issue for appeal. For example, a written statement from a witness accusing a defendant of robbery is entered into evidence, but the witness does not testify at trial. The defense attorney does not object and the defendant is convicted based solely on the written statement. The Confrontation Clause of the 6th Amendment guarantees a defendant the right to face his accuser, a right which, if infringed, could form the basis for an appeal.
Because the lawyer neglected to object at trial to the admission of a written statement rather than live testimony, however, the defendant is regarded to have waived this priviledge and an appeal will possibly not be allowed on that issue.
The example sounds absurd; an attorney waives your constitutional protection through ineptitude, yet your appeal on the basis of inadequate assistance of counsel fails – but it happens frequently. An appeals court may reason that calling the witness to the stand wouldn’t have had any great effect for the defendant and for that reason the decision not to object may possibly be considered a trial strategy. That’s the type of deferential latitude attorneys get in ineffective assistance of counsel appeals as well as the reason why it is vital to pick your attorney wisely at the very beginning of the process and stay involved during each part of the trial.
What is the definition of a writ?
A writ is a directive from a higher court instructing a lower court or government official to take a specific action in accordance with the law. For instance, if a lower court decides to consider a legal proceeding that is outside of its jurisdiction, one or more of the lawyers concerned may object and seek a writ of mandamus (writ of mandate) from an appeals court ordering the lower court to reassign the case to another jurisdiction.
How do writs and appeals differ?
Writs are extraordinary court orders and solely issued in cases where a moving party (the one seeking the writ) has no other alternatives. In the case of the writ of mandamus from above, the moving party had to act quickly simply because the lower court improperly took the case. If the moving party had just objected at trial and waited to appeal, a remarkable waste of time and money would have taken place – and all for nothing at all if the trial court improperly took the case.
Generally, superior courts won’t review conclusions of a lower court until a final verdict is delivered, for the aforesaid reasons of efficiency and leeway given to lower courts. Unlike appeals, which need a final verdict, writs are instant orders and extraordinary in that the typical course of a trial is interrupted, potentially causing disorder and delay.
Courts do not necessarily take such events lightly and superior courts do not issue writs often. A court will only issue a writ when a lower court wrongly decided an issue, permanent harm would happen to a party, and there are no other options.
Courts may possibly also issue writs, such as writs of attachment and execution, in order to force compliance with a courts order by an unwilling party.
What’s the definition of a writ of habeas corpus?
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought in to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.
Literally translated, a writ of habeas corpus is a court order to “produce the body,” and is generally filed by those in prison, though they are also filed by those who have been held in contempt of court by a judge and either imprisoned or threatened with imprisonment. Also recognized as “the Great Writ,” habeas petitions are ordinarily referred to as the hallmark of the United States justice system. Distinct from other countries where the authorities may toss virtually anyone in jail and keep them there indefinitely without filing charges or conducting a hearing, habeas corpus serves as a check on the government and offers prisoners a legal avenue to protest their imprisonment.
A habeas corpus petition can be filed in state or federal court. Before filing in federal court, however, all state options must be exhausted first.
Everyone has the right to challenge illegal imprisonment or inhuman prison conditions. Like all writs, however, courts will insist on clear and convincing evidence in support of a writ and do not issue them frequently.
Houston Appeals Defense: The Charles Johnson Law Firm
Dealing with the appeals process is hard and time consuming. The Experienced Houston Criminal Lawyers at the Charles Johnson Law Firm can help you plan your next move. Contact them today for a free initial consultation.
Houston Criminal Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
Major Credit Cards Accepted.
Houston Criminal Lawyers: Need Assistance With Obtaining An Appeal?
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The Top Houston Criminal Lawyers at the Charles Johnson Law Firm can decide which defenses might pertain to your case should you be arrested for possession of illegal drugs, either for private use or with intent to sell, in the event you plead not guilty. Various states deal with the issue of unlawful drugs in various ways, while the federal government has a tendency to have the most stringent drug sentencing regulations. Nevertheless drug possession defenses are rather standard across state lines. Several defenses challenge the stated information and facts, testimony or evidence within the case, whilst others focus on procedural mistakes, frequently search and seizure infractions.
The following are a few defenses to drug possession criminal charges, several much more typical than others:
Illegal Search and Seizure
The 4th Amendment of the United States Constitution guarantees the privilege to due process of law, such as legal search and seizure methods before a charge. Search and seizure challenges are very typical in drug possession cases. Unlawful drugs discovered in “plain view,” including a vehicle’s dash panel following a legal traffic stop, might be seized and utilized as evidence. However illegal drugs discovered within the trunk of your vehicle after prying it open with a crowbar, presuming the suspect didn’t provide authorization, can’t be put into evidence. In the event the accused’s 4th Amendment rights had been breached, then the illegal drugs can’t be utilized at trial and the criminal charges usually are dismissed.
Illegal Drugs Belong to Another Individual
A typical defense to any type of criminal offense arrest would be to merely state that you did not do it. The drug possession equivalent would be to state that the illegal drugs are not yours or that you simply had no idea they had been inside your apartment, for instance. The Finest Houston Criminal Lawyers at the Charles Johnson Law Firm will compel prosecutors to demonstrate that the marijuana cigarette discovered within the automobile really belonged to their client rather than another individual within the automobile.
Crime Lab Assessment
Merely because it appears to be crack or Ectasy does not necessarily mean that it is. The prosecution needs to establish that a seized material is actually the illegal drug it claims it is by submitting the evidence for crime lab analysis. The crime lab analyst then needs to testify at trial in order for the prosecution to prove its case.
Missing Illegal Drugs
Attorney Charles Johnson will make certain prosecutors have the ability to provide the actual illegal drugs for which their client has been arrested. Comparable to the requirement for analysis by a crime lab, prosecutors who misplace or otherwise don’t have the actual drugs risk getting their case dismissed. Seized drugs frequently are transferred a number of times prior to ending up within the evidence locker, therefore it should by no means be presumed that the evidence continues to exists throughout the trial.
Illegal Drugs Had Been Planted
This might be challenging to establish, because a law enforcement officer’s sworn testimony carries a great deal of weight within the courtroom. Moreover, other police officers might hesitate to blow the whistle on a fellow police officer. However, The Charles Johnson Law Firm will file a motion that, if authorized by the judge, demands the department to produce the complaint file of the given police officer. This file references the names and contact details of those that produced the complaints, who may then be interviewed by the lawyer or his private detective.
While police are free to operate sting operations, entrapment happens when police officers or informants cause a suspect to commit a criminal offense this individual otherwise might not have committed. If the informant pressures a suspect into giving illegal drugs to a 3rd party, for instance, then this might be regarded as entrapment. Usually, entrapment happens when the state offers the illegal drugs involved.
Do I Need A Criminal Lawyer?
If you’re arrested for any sort of of these or some other drug related criminal offense you should get in touch with The Finest Houston Criminal Lawyers as soon as you possibly can. The consequences of carrying out a drug offense may be very serious, such as actual jail time, in some cases for several years in significant high profile drug cases. Being found guilty for a drug-related crime could not just harm your personal and professional stature, but may lead to actual termination from a good job or even the suspension or revocation of one’s professional licenses. It is not whether or not you’ll acquire an attorney, rather, it is who you’ll find to handle your case at your most susceptible time.
Top Houston Criminal Lawyers: The Charles Johnson Law Firm
Do not let drug charges spoil your future. The Top Houston Criminal Lawyers will expertly defend drug charges in the courtroom. If you’re struggling with misdemeanor or felony drug possession charges after having a drug arrest in Texas, safeguard your legal rights and future. Contact the Charles Johnson Law Firm 24/7 to schedule a free initial consultation.
Charles Johnson |
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Drug offenses may be charged against a single individual with just a minimal quantity of marijuana, or perhaps a college student selling ecstasy or an individual trafficking considerable amounts of crack across state lines. Because drug violations cover an extremely wide array of criminal acts, almost no one can avoid the possibility of being found guilty, regardless if they are an upstanding citizen or possibly a career criminal. Anyone that has been charged with a crime should certainly consult the advice and the representation of the Top Houston Criminal Lawyers at the Charles Johnson Law Firm to help understand the nature of the charge, what defenses are available for the crime, if plea bargains are available, and what could happen if the defendant is convicted of the crime.
Drug offenses range in severity with the possession of a small quantity of marijuana for individual use being a “lesser” drug crime, and operating an entire drug trafficking business being a significantly greater criminal offense. The violations may be tried as a misdemeanor or a felony, based on a number of elements. For instance, the type of drug, quantity and motive are all considered when making an arrest. The prosecution and the judge may also consider whether or not the suspect has a past criminal history, and they’ll examine the circumstances associated with the criminal case. Competent Houston Criminal Lawyers can help you fight for your legal rights and ensure that the more positive aspects of the scenario don’t get go unnoticed by the prosecution. These strategies will help make sure that you aren’t sentenced with more severe consequences than necessary. Drug offenses are taken extremely seriously within the state of Texas and a skilled defense attorney might be the difference between your liberty and a felony conviction.
According to the elements of one’s case, you might discover your self dealing with a jail sentence. More serious cases of sales or sizable amounts of drug possession could put you behind bars. An experienced drug violations attorney can keep you from contending with prison time. Drug offenses fall within the jurisdiction of both federal and state laws, based on the nature of the criminal offense. Smuggling illegal substances and substantial quantity narcotic conspiracy cases are usually prosecuted on the federal level. Some other drug violations, like possession, manufacture and illegal drug trafficking inside state boundaries, are generally prosecuted by the State of Texas. Drug violations criminal charges consist of possession, use, sale or furnishing of any type of unlawful drug or drug paraphernalia that’s prohibited by law, also as the illegal possession of legal drugs (like prescribed pharmaceutical misuse).
Drug offenses in Texas are taken extremely seriously by federal and state prosecutors. When you have been arrested for simple marijuana possession, you could confront elevated criminal charges if you’re caught in possession of 4 oz . or more. If you’re found guilty of violating the Texas Controlled Substance Act, you might lose the privilege of your driver’s license for as much as 6 months. Drug violations are extremely severe in nature and must by no means be taken casually. An individual who’s arrested for a drug offense deals with life-changing legal repercussions. In Texas, drug offenses are prosecuted harshly by law enforcement officials and District Attorneys. Because of a continual growth in drug associated violations, the federal and state government now utilize more rigid drug regulations and legal punishments.
Drug violations may be considered as infractions, misdemeanors, or felonies based on a host of elements which includes:
What types of controlled substances had been involved (for example, heroin and PCP are usually seen as much more “serious” illegal drugs than marijuana).
The quantity of drugs concerned.
Whether or not the drugs had been procured for private use exclusively or to sell to other individuals.
Whether or not the accused was concurrently concerned within the commission of various other felonies or misdemeanors.
The defendant’s prior criminal history, if any exists.
Drug violations consist of numerous activities forbidden by federal or state statute, which includes possession, sale, manufacture, distribution and trafficking, together with prescription fraud and forgery. Drug offenses consist of attempts and conspiracies to commit any type of of these acts. On the federal level, involvement in a continuing criminal enterprise additionally exposes a person to criminal accountability. These offenses are extremely precisely defined, and therefore the government is expected to prove to the court a particular set of facts before a charged individual may be declared guilty of them.
Hire the Top Houston Criminal Lawyers: The Charles Johnson Law Firm
Additionally, drug cases often involve the issue of whether or not the proof was correctly attained by the authorities. Evidence acquired in violation of an defendant’s constitutional legal rights isn’t admissible in the courtroom. The majority of challenges to the admissibility of evidence are dependent within the Fourth Amendment, that protects Americans from unreasonable searches and seizures.
Drug courts currently operate or are being structured in virtually all 50 states. Although they differ among states, these specialized courts focus on therapy more than time in jail for defendants with substance abuse problems. Compliance with all the enforced stipulations (e.g., frequent drug screening, participation in a rehabilitation program) could possibly lead to dismissal of criminal charges, or suspended or lowered sentences.
When prison time is required, on the other hand, possible penalties escalate based on the type and amount of the drug at issue and also the defendant’s previous criminal history. Particular crimes are sorted into classes and minimum and maximum sentences of these classes are stipulated based on a defendant’s criminal background. Utilization of these sentencing recommendations in state and federal court have long been debatable; proponents maintain that recommendations make sure uniformity and equity in penalties, although opponents debate that they are not able to provide the flexibility required to take into account a defendant’s specific situations.
When you have Been Charged with a Drug Criminal offense
Drug charges can certainly have significant consequences, such as forfeiture of property and assets and time in jail. Talking to Attorney Charles Johnson, one of the Top Houston Criminal Lawyers, for guidance on how you can proceed is important. If you’re fighting drug criminal charges, a knowledgeable lawyer will assist you with navigating through the problems concerned in this complicated area of legislation.
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Although men and women in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are permitted, where justified, to search your premises, car, or some other property and assets in order to look for and seize unlawful items, stolen goods or evidence of a crime. What rules must law enforcement follow when engaging in searches and seizures? What can they do in upholding the laws, and what can’t they do?
What the authorities May Do:
- Under the Fourth Amendment to the U.S. Constitution, law enforcement officials may engage in "reasonable" searches and seizures.
- To prove that a search is "reasonable," the authorities must generally show that it is more likely than not that a crime has transpired, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the criminal offense. This is named probable cause.
- In a few situations, law enforcement need to first make this showing to a judge who issues a search warrant. In the majority of special circumstances, however, law enforcement may be able to conduct a search without the need of a warrant. In fact, virtually all searches are "warrantless."
- Police may search and seize items or evidence when there’s no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the authorities can take them and, in effect, no "search" has happened.
Note: In deciding whether or not there was a "legitimate expectation of privacy," a court will consider two important things:
- Did you have an expectation of some degree of privacy?
- Was that expectation reasonable in our society’s view?
Example: You have a semi-automatic rifle that you had stolen from a pawn shop. You leave the firearm laying on the hood of your vehicle when you get home. You don’t have a "legitimate expectation of privacy" with regard to items you leave on the hood of your vehicle, and police officers may take the weapon. No search has happened.
- Police may use first-hand info, or tips from an informant to justify the need to search your property. If an informant’s information is used, the police must prove that the information is reliable under the circumstances.
- Once a warrant is obtained, police officers may enter onto the specified area of the property and search for the items listed on the warrant.
- Police could very well extend the search beyond the specified area of the property or include various other items in the search beyond those specified or listed within the warrant if it is necessary to:
- Ensure their safety or the safety of others;
- Prevent the destruction of evidence;
- Discover more about possible evidence or stolen items that are in plain view; or
- Hunt for evidence or stolen items that, based upon their initial search of the specified area, they believe may be in a different location on the property.
Example: The police have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your home to go down to the basement, they see a cache of firearms sitting on your kitchen table. Some may take the guns to guarantee their safety while searching your basement.
- Police may search your property without the need of a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.
- Police may search your person and the immediate surroundings without a warrant when they are placing you under police arrest.
- If an individual is arrested in a residence, law enforcement may make a "protective sweep" of the home in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the authorities must have a reasonable belief that an accomplice may be around.
Example: Police officers arrest you in your living room on criminal charges of murder. Some may open the door of your coat closet to make certain that nobody else is hiding there, but may not open your medicine cabinet due to the fact that an accomplice couldn’t hide there.
- When you are being taken to jail, police may perform an "inventory search" of items you have with you without the need of a warrant. This search may include your vehicle if it is being held by law enforcement in order to make a list of all items inside.
- Police may search without the need of a warrant should they reasonably fear for their safety or for the public’s safety.
Example: If the authorities drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without having a warrant.
- If it’s necessary to prevent the imminent destruction of evidence, the police may search without the need of a warrant.
Example: If the authorities see you trying to burn a stack of cash that you stole from a bank, they could perform a search without a warrant in order to avoid you from further destroying the cash.
- Perform a search, without the need of a warrant, when they are in "hot pursuit" of a suspect who enters a private dwelling or area following fleeing the scene of a criminal offense.
Example: If the authorities are chasing you from the scene of a murder, and you run into your apartment in an effort to get away from them, they may follow you into the apartment and search the area without the need of a warrant.
- Police may perform a pat-down of your outer clothing, in what is named a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety.
What the authorities May NOT Do:
- The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
- If evidence was obtained through an unreasonable or unlawful search, the police may not use it against you in a trial. This is designated the "exclusionary rule."
- The police may not use evidence resulting from an unlawful search to obtain some other evidence.
- The law enforcement may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit.
- Unless there is a reasonable suspicion that it contains evidence, unlawful items, or stolen goods, law enforcement may not search your motor vehicle. If your vehicle has been confiscated by police officers, however, they can search it.
- Unless they have a reasonable suspicion that you are involved in a criminal activity, the authorities may not "stop and frisk" you. Should they have a reasonable suspicion, they can pat down your outer clothing if they are concerned that you might be concealing a firearm.
Houston Search & Seisure Defense: Hire the Most Respected Houston Lawyer
Courts quite often need to determine case-by-case whether or not the circumstances in which the police searched without a warrant had been legal. Therefore, if the search has already occurred and you are not sure of its legality, speak to the Leading Houston Drug Crimes Attorney as soon as possible. And any time a search has not yet been conducted, make sure that you understand your rights in advance.
Charles Johnson |
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What is the definition of an appeal?
An appeal is defined as a petition to a higher court by the losing party in a court action to overturn a lower court’s ruling. The basis of an appeal is required to be a reversible mistake in the application of the law at the trial court level (i.e., in line with the facts, the court plainly misapplied the law).
In defense cases, an appeal may target the conviction on its own or just the sentencing portion regarding the decision without any regard to the particular underlying conviction. For instance, any time a defendant is properly convicted of manslaughter but a judge sentences the defendant to a prison term that’s beyond the limit of the law, the defendant will only appeal the prison term while leaving the actual conviction itself intact.
An appeal shall be filed only after the final judgment or order has been reached by the trial court. This is quite simply for reasons of efficiency, so that the court system isn’t bogged down by delays and trials are not constantly put on hold while awaiting appeals associated with a judge’s every verdict.
At the conclusion of a trial, the losing party may also produce direct appeals (e.g., motion for a new trial, motion for directed verdict) to the presiding judge to immediately overrule the jury’s judgement, nevertheless these are rarely effective.
Does an appeal constitute a new trial?
No. Within an appeal there aren’t any brand new issues presented or witnesses named to testify. The appellate court is only going to evaluate the trial’s transcript and evidence offered in the course of the trial to determine whether or not there were errors within either procedure or application of the law. Even though there were faults, when they are considered insignificant – legally named “harmless error” – the judgment will not be overturned or a new trial granted.
Can any sort of judgment be appealed?
The short response is no, there is no absolute right to an appeal. Each state has laws which outline the kinds of cases which appellate courts may consider. There must be an error of law for an appellate court to examine a case. That the losing party didn’t like the decision is not really enough to sustain an appeal.
That being said, even in administrative courts or lower level courts, if an individual’s constitutional legal rights have been infringed upon, some may sue in order to enforce their rights and/or to take another look at the original case.
What is the appeals process?
In Texas court proceedings, the appellant or petitioner (the party appealing the judgement) needs to file a notice of appeal within 30 days of the verdict. In federal court, the deadline is 60 days. The filing of the notice of appeal starts the clock running on the appeals process and then there are prescribed deadlines from this point on. The petitioner submits a legal brief detailing the alleged errors of law made by the trial court, and the respondent or appellee (the party that prevailed at the trial) writes a response.
Once the appellate court receives both petitioner and respondent briefs, it will assess the arguments and make a determination of whether: a) there were errors of law made by the trial court, and b) whether the errors rise to the level of “reversible error” (highly serious errors). As noted above, innocent discrepancies are going to be disregarded by the appellate court.
There may or may not be oral arguments given by petitioner and respondent. If the court makes the decision to hear oral arguments, the petitioner will present his or her own arguments and field inquiries from the judge(s) and after that the respondent will do the same. Usually in most appeals, this question and answer format usually lasts ten to fifteen minutes for each side.
Whether the appeals court listens to oral arguments or issues a judgment based merely on the written briefs, the court will either: 1) affirm the decision; 2) order a new trial; 3) change the ruling in some manner; 4) take into consideration new facts or evidence (seldomly); or 5) in extremely infrequent cases, may perhaps dispose of the case entirely.
What is the likelihood of an effective appeal?
The number of effective appeals is in fact marginal. Appellate courts allow the trial court great flexibility in carrying out trials. The law doesn’t necessarily promise perfect trials, accordingly appeals courts are only going to overturn verdicts that have clear, substantial errors of law.
Because of the leeway appeals courts give trial decisions, petitioners possess an even greater burden in verifying that errors of law happen to be serious and not benign. If an appellate court can discover any satisfactory argument that the oversight might not have changed the decision (and is therefore “harmless”), it will refuse to overturn the verdict.
There are, naturally, a number of cases where significant errors were made and appeals courts will overturn those decisions. Notably serious are charges that the trial court refused rights secured by the constitution, that include due process and equal protection rights.
I lost my trial due to the fact that my attorney made foolish errors, can’t I depend on an appeal to correct them?
Don’t rely on appeals to make up for any genuine or perceived inadequacies at trial. You must put all of your energy into the trial itself, which involves locating the proper lawyer to try the case. Effectively appealing a verdict since you had a deficient attorney is a challenging proposition. You cannot appeal since you simply had a poor lawyer.
You can appeal on the basis that your attorney was so incompetent that you simply had been essentially denied your 6th Amendment right to a fair trial (known legally as an “ineffective assistance of counsel” appeal). This occurs almost exclusively in criminal defense situations and the standard for the appeal is very high – courts are extremely deferential to the competency of attorneys and maintain a strong presumption that the lawyer’s assistance was within professional standards. To put it in perspective, there have been circumstances where an attorney has fallen asleep during a trial, yet the verdict was not overturned nor the case retried.
Many circumstances aren’t eligible for appeal simply because the trial attorney did not object to a ruling during the trial, and therefore didn’t “preserve” that issue for appeal. For example, a written statement from a witness accusing a defendant of robbery is entered into evidence, but the witness does not testify at trial. The defense attorney does not object and the defendant is convicted based solely on the written statement. The Confrontation Clause of the 6th Amendment guarantees a defendant the right to face his accuser, a right which, if infringed, could form the basis for an appeal.
Because the lawyer failed to object at trial to the admission of a written statement rather than live testimony, however, the defendant is deemed to have waived this right and an appeal will possibly not be allowed on that issue.
The example sounds absurd; an attorney waives your constitutional right through ineptitude, yet your appeal on the basis of ineffective assistance of counsel fails – but it happens frequently. An appeals court may reason that putting the witness to the stand wouldn’t have had any positive effect for the defendant and due to this fact the decision not to object could be considered a trial strategy. That’s the type of deferential latitude attorneys get in ineffective assistance of counsel appeals and the reason why it is absolutely essential to decide on your attorney wisely at the very beginning of the process and stay involved during each part of the trial.
What is the definition of a writ?
A writ is a directive from a higher court ordering a lower court or government official to take a specified action in accordance with the law. For example, if a lower court decides to try a case that is outside of its jurisdiction, one or more of the legal professionals involved may object and seek a writ of mandamus (writ of mandate) from an appeals court ordering the lower court to reassign the case to another jurisdiction.
How are writs and appeals different?
Writs are extraordinary court orders and only issued in cases where a moving party (the one seeking the writ) has no other options. In the case of the writ of mandamus from above, the moving party had to act quickly because the lower court improperly took the case. If the moving party had merely objected at trial and waited to appeal, a remarkable waste of time and money would have taken place – and all for virtually nothing if the trial court improperly took the case.
Generally, higher courts won’t review conclusions of a lower court until a final verdict is delivered, for the formerly discussed reasons of efficiency and leeway given to lower courts. Unlike appeals, which require a final verdict, writs are on the spot orders and extraordinary in that the normal course of a trial is disrupted, potentially causing disorder and delay.
Courts do not take such events lightly and superior courts do not issue writs often. A court will only issue a writ when a lower court wrongly decided an issue, irreparable harm would occur to a party, and there are no other options.
Courts might also issue writs, such as writs of attachment and execution, in order to force compliance with a court order by an unwilling party.
What’s a writ of habeas corpus?
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be moved to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.
Literally translated, a writ of habeas corpus is a court order to “produce the body,” and is generally filed by those in prison, though they are also filed by those who have been held in contempt of court by a judge and either imprisoned or threatened with imprisonment. Also known as “the Great Writ,” habeas petitions are very often referred to as the hallmark of the United States justice system. Unlike other countries where the governing administration may toss virtually anyone in jail and keep them there indefinitely without filing charges or conducting a hearing, habeas corpus serves as a check on the government and offers prisoners a legal avenue to protest their imprisonment.
A habeas corpus petition can be filed in state or federal court. Before filing in federal court, however, all state options must be exhausted first.
Everyone has the privilege to challenge illegal imprisonment or inhuman prison conditions. Like all writs, however, courts will insist on clear and convincing evidence in support of a writ and do not issue them frequently.
Houston Appeals Defense: The Charles Johnson Law Firm
Dealing with the appeals process is tough and time consuming. An experienced attorney from the Charles Johnson Law Firm in Houston, Texas can help you plan your next move. Contact us today for a free initial consultation.
Charles Johnson |
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