By Paul Looney, Attorney at Looney & Conrad, P.C.
Everyone who has ever watched a police drama on television or at the movies has heard the police officers recite a list of rights when they arrest a suspect. This list of rights is known as “Miranda Rights” or “Miranda Warnings”
This concept became a part of every day police work after a United States Supreme Court ruling in a 1966 case from Arizona styled Miranda v. Arizona. The individual arrested and tried (Ernesto Arturo Miranda) appealed his conviction for armed robbery, kidnapping and rape of a mentally handicapped young woman because he had not been told that his statements could be used against him in a court of law. Even though the Supreme Court ruled that Miranda’s constitutional rights had been violated, it sent the case back to the trial court for a new trial and the ruling became enshrined in U.S. law (Miranda was subsequently retried and convicted).
Specifically, the Supreme Court found that Miranda’s Fifth and Sixth Amendment rights had been violated while he was in custody and under interrogation. No specific wording was given by the Supreme Court for informing suspects of their rights, but a set of guidelines were set out that must be followed.
If a person is in custody that is under formal arrest or so deprived of freedom as to seem to be under formal arrest, it follows that under those circumstances any interrogation of that individual can be reasonably expected to elicit an incriminating response.
As a result, prior to interrogation, the person in custody must be clearly informed that he/she has the right to remain silent and that anything the person says will be used against that person in a court of law; that he/she has a clear right to consult with an attorney and to have that attorney present during questioning; and that if the person cannot afford an attorney one will be appointed at no cost. The Supreme Court found that the Fifth and Sixth Amendments to the U.S. Constitution guarantee these rights.
The fact that a suspect in custody has been given a Miranda Warning does not in and of itself preclude subsequent statements by that person from being used in resultant prosecution. Many jurisdictions including Texas allow for officers to ask the suspect if he/she understand the rights as they have been read and if so are they still willing to talk to the officers. In that case, such voluntary statements and any evidence collected as a result of those statements even after the Miranda Warnings, have been ruled admissible.
The bottom line for anyone who, for whatever reason, is suddenly found to be in the custody of an official law enforcement organization should always remain silent until they are in the presence of their attorney. Know your rights as the Constitution provides and as law enforcement is required to advice you before any form of interrogation begins. The wisest course of action, consequently, is to remain silent and insist on your right to contact a lawyer and have one present before anything else is said.
By Paul C. Looney, Attorney
When it comes to criminal trespassing, most people commit the crime without even knowing they are doing it. It is so easy to trespass on someone’s property that most people do not even consider what they are doing as illegal. To prevent legal trouble, here is some information on what criminal trespassing is, and what to do to prevent it.
Under Texas Penal Code Section 30.05, criminal trespassing is committed anytime a person enters a property he or she does not have the right to enter, or stays on a property after being told they do not have the right to be there. A person can also commit criminal trespassing if he or she has been given permission to be on a property, but are then told to leave and they refuse.
There are many ways a person can receive notice of trespassing. Entering a property that is enclosed to keep people out and to keep livestock in is considered trespassing. Signs posted around a property or building stating that entrance is forbidden obviously means that entering would be a crime. Also, if the property has a crop that is being grown for human consumption, or is in the process of being harvested, then entering that property is also a crime.
Most of us can probably think back to a time when we were younger and would run around in someone’s cornfield, but doing so is against the law.
Criminal trespassing is usually a Class B misdemeanor, but there are many exceptions. One exception is when someone trespasses on agricultural land, which is considered a Class C misdemeanor. Trespassing can also be charged as a Class A misdemeanor if the person commits the offense in a habitation or shelter center. The charge also becomes a Class A misdemeanor if the person carries a deadly weapon during the act of trespassing.
When it comes to gun laws, it is a Class C misdemeanor if a person enters a building with a firearm that does not allow open or concealed carry. However, if a person carries a firearm into a building that he or she is not supposed to, and are given notice to leave but do not, then it is a Class A misdemeanor.
In short, if a person is about to enter a property and feel as though doing so would be illegal, he or she shouldn’t do it because it probably is. If a person is planning to open or conceal carry on a property, he or she needs to look for the correct signage to know if they are allowed to have a gun there. When in doubt, a firearm should remain in the vehicle.
Getting your security deposit back
By Richard Senasac, Attorney at Looney & Conrad, P.C.
You have moved out of your old apartment and into a new one or a home. If you are like many renters I know, you are going to have trouble getting your security deposit back. To retain your security deposit, the landlord must by law, take certain steps. The renter must provide the landlord with a forwarding address and the landlord must, within 30 days, return the security deposit less any deductions for damages.
There are things that you can do to make getting your deposit back more likely. First, read the rental agreement. Most leases provide that you must give a certain number of days’ written notice of moving out or lose your deposit. Be sure to carefully follow any requirements in your lease and to document your steps. Note that a requirement that a tenant give advance notice of surrender of the property as a condition for refunding the security deposit is effective only if the requirement is in writing and underline or in bold print. Next, arrange a walk-through with the landlord to reach an agreement as to damages. Normal wear and tear cannot be held against you for the security deposit, only abnormal damage. A worn carpet doesn’t count; an accidental hole in the wall does. Before the landlord leaves, you should have an agreed list of the damages and the cost to be deducted from the deposit. You should take photographs of any damage or wear, especially if there may be a dispute over it.
If the landlord retains any part of the deposit, he must return the rest within 30 days along with an itemized description of all the deductions. The landlord does not have to provide the list if the tenant owes rent and there is no dispute over the amount of rent owed. If the landlord retains any of the deposit in bad faith, Texas Property Code Section 92.109 provided he is liable for $100 and triple the sum withheld, plus attorneys’ fees. If the landlord doesn’t provide a written description and itemized list of damages, he is liable for attorney’s fees and forfeits the right to any of the security deposit. If the landlord fails to do either of these things by the 30th day after the tenant surrenders possession, he is presumed (the court will take it as proven unless contrary evidence is provided) to have acted in bad faith.
If you give your landlord your new address in writing and you do not receive your deposit or an explanation within 30 days of your departure, contact the landlord. If you cannot work the matter out, you may contact an attorney or file suit in JP Court yourself. A savvy landlord will recognize his exposure in court and settle before trial or possibly before the suit is filed. You may also contact the local Better Business Bureau, the local Tenants’ Rights Counsel or even the Attorney General’s Consumer Protection Office. If the landlord is a member of the BBB, he may have agreed to mediate or work out such disputes through them.
If you choose to file suit in JP Court, you should familiarize yourself with the Court’s proceedings and requirements through their websites for the requirements of proving that the landlord has violated the Texas Property Code regarding security deposits.
Anyone who carries a cell phone should be happy about this ruling, which protects the right to privacy:
The US Supreme Court ruled last week in a 5-4 decision in Carpenter v. United States, the first case about phone location data used in a criminal search. This overruled the Sixth Circuit Court and made an argument based on the constitution and protecting the Fourth Amendment rights of an individual concerning people’s ‘digital’ location information. This precedent could be the most important new warrant precedent in 25 years.
The Carpenter case involved a 2011 robbery in Detroit. After the robbery, police gathered months of phone location data from Timothy Carpenter’s phone provider, about four months’ worth, without a warrant. The data gave about 12,900 locations Carpenter (or at least his cell phone) was over 127 days. The question considered was whether or not Carpenter had the right to expect his cell phone location data was private or whether police needed a warrant to access it.
The Sixth Circuit Court of Appeals decided that it wasn’t private, and the police did not need a warrant from the company stating the Fourth Amendment didn’t cover cellphone location data, and therefore the police didn’t need a warrant.
However, Chief Justice John Roberts said that the government’s search of Carpenter’s phone records was considered a Fourth Amendment search and the government’s position in the case failed to account for “seismic shifts in digital technology” that made it possible for individuals’ locations to be tracked for years. He stated that allowing the government to access historical GPS data is an infringement on the reasonable expectation of privacy, as it would provide the government and law enforcement with an “all-encompassing record” of anyone’s whereabouts and suggested the historical data was a greater threat, constitutionally speaking, than real-time location monitoring.
Carpenter’s legal team, which included lawyers from the American Civil Liberties Union, argued the cellphone location data should be held as ‘sensitive digital records,’ protected under the Fourth Amendment.
Nathan Freed Wessler, an ACLU attorney who argued the case said it a “groundbreaking victory for American’s privacy rights in the digital age" and said the Court's decision updated the privacy laws bringing them better in line with modern reality and undermines the government’s tendency to claim that merely using technology eliminates Fourth Amendment protections.
U.S. Deputy Solicitor General Michael Dreeben, who argued the case for the government, argued when people sign up for a phone plan, they essentially hand their information to providers in exchange for service and the providers own the data records.
Before the trial, major tech companies including Google, Apple, and Facebook filed amicus briefs, urging the Supreme Court to come down on the side of the making it harder for law enforcement groups to obtain data without a warrant.
While the decision does set a precedent concerning the use of historical GPS data, it does not apply to real-time location tracking, or to security cameras or business records.
Our Jury System is Dying
By Clay S. Conrad, Attorney
There is a decline in the percentage of cases going to jury trial Attorneys have gradually adapted to measures that reduce the viability or availability of jury trials – from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time-consuming mediation prior to trial. As the jury trial becomes rarer and more difficult to attain, we adapt to our environment.
Too often we fail to recognize or object to procedures that raise the risk or cost of a jury trial. These mechanisms (and there are more being added practically daily) have become part of our legal system. Many legislators are not aware of the fact that the jury system is dying and many actually respond positively once aware of the facts.
In the meantime, if we don’t make ourselves aware (and spread that awareness among others), we become part of this seemingly intractable problem. It is time to break out of this rut and to object to those rules and procedures that act as a tax on the right to a trial by jury – while there are still those who remember why it is important.
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