Lori Elaine Laird, J.D.

Archive for the ‘Constitutional Law’ Category

What You Need to Know If You Are Arrested for Operating a Marijuana Grow House

In Constitutional Law, Drug Crimes, General Criminal, Marijuana on April 22, 2013 at 2:00 am

marijuanafield

If you are under investigation or in custody and facing charges of cultivation of marijuana, you may be subject to serious penalties that can deprive your of your liberty and have an adverse impact on your future.  Because more and more “grow houses” are cropping up throughout Texas and across the U.S., both Texas and federal law enforcement authorities are aggressively pursuing investigations and criminal cases against those operating marijuana cultivation operations.  Law enforcement agencies eradicated over 8 million marijuana plants in a single recent year according to the Department of Justice National Drug Intelligence Center.

 Law enforcement officers carefully analyze water and electricity use to identify grow houses.  There are a wide range of issues that may create the basis for a valid defense when a person is accused of operating a business for cultivation of marijuana or manufacturing of other narcotics like methamphetamine.  Some of these issues include:

 Searches of the Premises: Law enforcement agents must conduct searches that are reasonable under the Fourth Amendment.  A warrantless search of one’s home is presumptively unreasonable so the officers must prove a valid exception to the warrant requirement, such as exigency (i.e. emergency), hot pursuit or some other exception.  Even if a law enforcement officer obtains a search warrant, judges sometimes erroneously issue the warrant based on insufficient evidence, or officers “fudge” the facts to obtain the warrant.  When a warrant is valid on its face, there are still reasons that the search may be improper, such as when the search goes beyond the scope of the warrant.  Sometimes a “consent search” is conducted, but the person who gives consent does not own the premises or have authority to consent to the search.

 Challenging Informants: Police often use the testimony of those who purchase marijuana from those with cultivation operations or sell marijuana from the grow house to prosecute these cases.  Many times these informants may be small scale dealers who view a cultivation operation as a threat to their business or individuals seeking to gain other advantages, such as favorable treatment in their own criminal case.  Aggressive cross-examination of such informant can expose their motives to lie or distort the truth.

 Attacking Electronic Surveillance: Police may use electronic wiretaps, GPS tracking devices, and other forms of high tech surveillance when investigating a marijuana cultivation operation.  These types of surveillance may intrude on Fourth Amendment privacy interest protected by the prohibition against unreasonable search and seizures.  Experienced drug crimes attorney Lori Laird investigates information gathered through electronic monitoring to determine Constitutional and statutory grounds to seek exclusion of such evidence.

 Grow Lights/Electricity Usage: Many law enforcement agencies use helicopters with infra-red imaging equipment that will detect glow lights like a beacon.  The police may engage in various actions to investigate such discoveries including reviewing electric bills or conducting informal “visits” to detect the odor of cannabis before seeking a search warrant.  We will examine such actions for substantive and procedural violations of law and the rights of our clients.

 The use of hydroponic cultivation methods involving artificial light from grow lamps and minimal soil has resulted in marijuana grow operations springing in upper scale suburban neighborhoods.  These advances in cultivation  and drug manufacturing processes along with the real estate housing bust has resulted in many innocent homeowners and landlords being swept up in criminal charges for drug trafficking, marijuana cultivation and drug manufacturing on properties that they own.

 While the penalties for marijuana cultivation can result in a misdemeanor or felony conviction, the grading of the offense and severity of the punishment is based on the quantity of marijuana.  The penalties for marijuana cultivation include:

Amount of Marijuana        Grading                                 Maximum Sentence           Maximum Fine

2 Oz. or Less                         Class B Misdemeanor        Six Months (180 days)       $2,000

Over 2 less than 4 Oz.         Class A Misdemeanor        One Year                               $4,000

Over 4 Oz. to 5 Lb.              State Jail Felony                  180 days to 2 years             $10,000

Over 5 to 50 Lb.                   3rd Degree Felony                2 to 10 Years                        $10,000

Over 50 under 2000 Lb.     2nd Degree Felony              2 to 20 Years                        $10,000

2000 Lb. or more                 1st Degree Felony                 5 to 99 Years (or Life)        $50,000

If you are facing charges of cultivating marijuana or drug manufacturing in Houston, Galveston, Angleton, Richmond, Baytown, Webster, League City or anywhere throughout Harris County, Galveston County, Brazoria County, Fort Bend County or Chambers County, Lori Laird is a former law enforcement officer who relies on this experience when defending drug cases in Texas.  Ms. Laird works diligently to seek dismissal of the charges, acquittal at trial or the best possible disposition.  Call 832-699-1966 today for your free consultation or visit our website to learn more about my firm.

//

Advertisements

How Facebook and Other Social Media Sites Can Damage Your Criminal Case

In Assault, Constitutional Law, Drug Crimes, DWI, General Criminal, Immigration, Plea bargain on April 4, 2013 at 4:23 am

social media

 

If you are under investigation or face prosecution for criminal charges in Houston, Galveston or anywhere in Texas, you should be acutely aware that information posted on social networks is increasingly finding its way into criminal and civil courtrooms.  Many people, especially young adults and teenagers, publish inappropriate intimate details about their lives on Facebook, LinkedIn, Twitter and MySpace.

From time to time people post information, pictures or video on social media networks that can prove damaging in subsequent criminal cases.  Many times this information may not seem incriminating when posted but gains significance based on subsequent events.    In situations when the compromising nature of the evidence is apparent at the time of posting, those who post the information often feel a false sense of security that the information is password protected in private areas of the social network site and is inaccessible to others who may be investigating suspected criminal activity.

 While there is a variety of way information posted on your Facebook or other social media pages can be used as criminal evidence against you, some common examples include:

 Photos of underage drinking

  • Descriptions of drug use
  • Statements that seemingly place you at the location of a crime compromising mitigating alibi evidence
  • Evidence that may be used to impeach testimony or undermine defense strategies
  • Information that supports an argument of premeditation, attempt or conspiracy
  • Images that influence the judge to impose more serious sentencing

 The concept of using social network information in criminal litigation is not merely theoretical.  Some cases involve suspects boasting about their role in committing a crime with the post electronically time stamped.  This type of information can significantly complicate defense strategy when you are being prosecuted for a criminal offense.

 Here are some examples of actual criminal cases where police and prosecutors have effectively used social media information including:

 Example 1: The defendant was charged with murder, narcotics and weapons offenses.  He posted photos of himself in public areas of his Facebook page flashing gang signs, which complicated his case where gang membership was alleged.  He attempted to keep private references to violent criminal offenses and threats against others.  The judge found that because he shared these details with “friends” on Facebook he lost all expectation of privacy in the information.

 Example 2: Police used evidence communicated by a Hell’s Angel to a witness via a Facebook “poke” as evidence he threatened a witness.

 Example 3: A defendant accused of vehicular homicide for the death of her boyfriend and passenger during a drunken driving collision had arranged a fairly lenient plea bargain.  However, the judge decided to reject the plea agreement and to impose a much more serious penalty when the defendant posted pictures of herself intoxicated and bragging that she was “so drunk” prior to acceptance of the plea.

 A recent survey of over 1,200 law enforcement agencies at the local, state and federal level revealed that 80 percent of law enforcement officials indicated they use social media to gather intelligence in criminal cases.  Fifty percent of those surveyed revealed that they check social media on a weekly basis when investigating criminal offenses.  The majority of those law enforcement agencies indicate that the information they glean from social media sites assist them in solving crimes more quickly.

 Some “public” information takes a bit of maneuvering to find.  Someone can have their Facebook settings as private as possible, but their friends or relatives might not be as savvy, allowing police to collect information by looking at what a suspect posts on their friends’ public pages. Drug dealers have been known to post innocuous public updates that include location information so clients — and unwittingly, law enforcement — know where to find them

 The rules of evidence in criminal cases can be complicated, but Houston criminal defense attorney Lori Laird is intimately familiar with the legal rules regarding the admissibility and exclusion of evidence.  Generally, you should not speak to anyone about your criminal case which includes disclosing information on your social media pages.  If you are the subject of a criminal investigation or you have been charged with a crime, the best option is not to post any information on your social media pages.  If you have posted damaging information, Ms. Laird may be able to have the evidence excluded.

 If you are facing criminal charges, experienced criminal defense attorney Lori Laird provides legal representation in Houston, Galveston, Angleton, Richmond or anywhere throughout Harris County, Galveston County, Brazoria County, Fort Bend County or Chambers County, Lori Laird can provide answers to your questions and provide effective legal representation.  Call 832-699-1966 today for your free consultation or visit our website to learn more about my firm.

 

Can the Police Conduct a Search of My Vehicle or My Person During a Routine Traffic Stop?

In Constitutional Law, General Criminal on July 9, 2012 at 3:18 am

Many people make mistakes during a routine traffic stop that can result in facing criminal charges when they were completely avoidable.  It is not surprising that motorists make strategic errors when stopped by a police officer because many drivers are unaware of their rights.  We get a fair number of inquiries regarding the criteria for a lawful search that arises out of a traffic encounter with the police.  We have provided some basic guidelines regarding lawful searches during a routine traffic stop.

You may be pulled over for some sort of a traffic violation, for example, running a red light, failing to signal lane change or speeding, or for some type of “erratic driving”- maybe driving over the line, sometimes called failure to maintain a single lane.  Although there are many reasons for an officer to make a traffic stop, these are examples of two of typical grounds for conducting a stop.  In these circumstances, the officer generally does not have any legal basis to conduct an extensive search of you or your vehicle.  While the officer may scan the inside of the passenger compartment, the officer generally cannot conduct a more extensive search of the interior of the vehicle, glove compartment or the trunk of your vehicle.  However, the officer does have a right to take certain precautions to protect his safety.  If the officer sees you bend over or reach under the seat, the officer may check for weapons.  This means that it is advisable to keep your license, registration and insurance information easily accessible so that you will not be forced to dig around and give the officer a basis to look for a weapon- a weapon that may not even exist- inside the vehicle.

If you have contraband or evidence like illegal narcotics in plain view within the passenger compartment of your car, the officer can confiscate the narcotics and search the vehicle more fully because he has probable cause to believe a crime is being committed.  Even if the officer does not discover evidence of a crime in plain view, the officer may conduct a search of your vehicle if you are lawfully arrested.  For example, if an officer suspects you have been drinking, the officer may ask you to perform field sobriety tests (FSTs) and submit to a breath test.  If you fail these tests, the officer would have probable cause for an arrest and could conduct an inventory search of your vehicle subject to a lawful arrest.  Or perhaps you have an outstanding warrant for a traffic offense and the officer takes you into custody for the warrant.  The arresting officer may then conduct an inventory search of your vehicle.  The purpose of an inventory search is designed to preserve the property of the defendant and to alleviate claims by individuals that the police have lost or stolen their property.  Even though the stated purpose of an inventory search isn’t to “find evidence” to prosecute individuals- the discovery of evidence or dangerous objects found in such a search may result in additional or new charges against the driver.

Another situation where the officer may conduct a search in a limited sense is called a Terry stop.  During a Terry stop, an officer who has “reasonable suspicion” that a crime is being committed may order you to get out of the vehicle and conduct a limited pat down of your outer garments for weapons.  It is important to understand that this pat down must be limited to a search for weapons.  If the officer does not feel anything that is obviously a weapon, the officer may not reach into your pockets or search you further.  When the officer is conducting the pat down, however, the officer may confiscate contraband like drugs if the identity of the contraband is readily apparent by touch.

One of the biggest mistakes that people make when they have contraband in their vehicle is to consent to a search of the vehicle.  If you are pulled over for a routine traffic violation or erratic driving, this alone is not sufficient to provide the probable cause necessary to justify an investigatory search for evidence.  This is why the officer asks you to consent to a search.  It is imperative that you do not grant permission for the officer to search you or your vehicle.  If you have been pulled over for speeding, for example, you may receive a traffic citation and pay a fine.  If you consent to a search of your vehicle, however, any contraband discovered during the search like cocaine, methamphetamine, heroin or other drugs may mean that instead of going home you go to jail/prison.  Many people are intimidated when a police officer requests permission to check the trunk or glove compartment of their vehicle, but you can and should say no.

The key point to keep in mind is that even if you have contraband or evidence of criminal activity in your vehicle, a routine traffic stop does not mean that a police officer can conduct a broad search of your person or vehicle.  If you or someone close to you has been arrested following a search during a traffic stop in Houston or the surrounding areas, criminal defense attorney Lori Laird provides tenacious criminal defense based on her unique combination of law enforcement and legal experience.  Our criminal defense law firm provides legal representation to those in Houston, Galveston, Angleton, Richmond, or anywhere throughout Harris County, Brazoria County, Galveston County, Fort Bend County or Chamber County who have been arrested.    Call 832-699-1966 today for your free consultation or visit my website at www.lorilaird.com to learn more about my firm.

Understanding and Exercising Miranda Rights

In Constitutional Law on February 8, 2012 at 3:28 am

When you face an arrest by a law enforcement officer, it can be an intimidating and inherently oppressive experience.  The pressure of being questioned by an officer equipped with a firearm who is empowered to arrest you can create enormous anxiety and fear.  Many people in the city of Houston and throughout Galveston County try to talk their way out of an arrest under the mistaken belief that they may be able to convince an officer to send them home.

Anyone who has watched a crime show on television is familiar with the Miranda warning that a police officer reads to a suspect when taking someone into custody.  The protections afforded by the Miranda warning are among a suspect’s most important Constitutional protections.  The Miranda warnings ensure that when someone is taken into custody he or she is informed of certain critical rights during police interrogations.

Supreme Court decisions in recent years, including Maryland vs. Shatzner [i]and Florida vs. Powell[ii], have significantly emasculated the protections afforded by the Miranda decision and its progeny.  The Shatzner and Powell decisions weakened the protections against self-incrimination and the right to counsel.  The Shatzner decision permits officers to recommence interrogation even after the accused has invoked the right to have an attorney present during questioning once 14 days have passed.  The Powell decision makes clear that while the four warnings required by Miranda do not vary, the words that the police use to convey those warnings may vary so there is no specific wording that must be followed by police.

The decision in Miranda vs. Arizona [iii]acknowledged the “oppressive nature of station house questioning” a suspect faces when in police custody.  The Miranda decision acknowledged that the pressure of a custodial interrogation could overwhelm a suspect’s ability to assert his or her Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel.  Miranda warnings discourage suspects from making incriminating statements that are not “knowing, intelligent and voluntary.”

The Supreme Court in Edwards vs. Arizona[iv] strengthened the protections afforded by the Miranda decision by holding that once a suspect has asserted one’s right to counsel police may not try to interrogate the suspect again “unless the accused himself initiates further communication, exchanges, or conversations with the police.”  The Supreme Court in Edwards created a presumption that once a suspect invokes the right to have counsel present during a police interrogation, any subsequent waiver of that right is to be considered involuntary unless the suspect initiates the waiver.

In Shatzner, the Supreme Court limited the Edwards decision by finding that officers could re-initiate interrogation after a suspect had invoked his right to have an attorney present during questioning.  The Shatzner case was particularly notable for two reasons.  In Shatzner, the original interrogation and invocation of the suspect’s right to have an attorney present during questioning occurred about two and a half years before the subsequent interrogation.  Yet, the court did not limit its decision to such lengthy breaks in interrogation.  The Supreme Court indicated that only 14 days needed to pass after a waiver before the police could again initiate interrogation.

The other notable aspect of the Shatzner decision is that the Supreme Court indicated that returning Shatzner to the general prison population constituted a “break in custody.”  The Supreme Court reasoned that returning a defendant to custody in the general prison population where he had been held since the first interrogation was not the same as being held in custody at the police station following an arrest.  By defining the holding of a person among the general prison population as a break in custody, this decision greatly expands the ability of officers to re-initiate an interrogation following a suspect’s invocation of the right to counsel.

The protection afforded by the Miranda warnings also has been weakened by the Powell decision.  In Powell, the police changed the wording of the standard Miranda warning regarding the right to have an attorney present during questioning.  The decision found that law enforcement could change the wording of the warnings.  The Supreme Court held that telling a suspect that he could exercise his right to counsel “before” questioning did not mean that the suspect did not have an ongoing right to invoke the right once questioning was initiated.

The Shatzner and Powell decisions when taken together constitute a significant emasculation of the protections afforded by the Miranda decision.  A suspect’s failure to invoke and continue to assert one’s rights against self-incrimination and right to counsel under these new decisions make it much less likely that incriminating statements will be suppressed.

The important point to keep in mind is that you should absolutely decline to speak to law enforcement if you are arrested.  Law enforcement officers have extensive training and experience interrogating suspects and obtaining incriminating statements.  Many times it may not even seem that you are being interrogated.  The officer may even suggest that you can go home as soon as things are cleared up.  As a former police officer, Houston criminal defense lawyer Lori Laird knows that the purpose of interviewing you is not to “clear things up” but to develop evidence that will be used to prosecute you.

If you have been arrested, you should clearly and unequivocally inform the officer that you are asserting your right to remain silent and that you do not wish to discuss anything until your Houston criminal defense attorney is present.  Ms. Laird carefully investigates all criminal cases to identify Miranda violations that may create a basis for suppressing incriminating statements or confessions.

If you are facing criminal charges in Houston, Galveston, Angleton, Richmond or anywhere throughout Harris County, Galveston County, Brazoria County, Fort Bend County or Chambers County, Ms. Laird will work diligently toward a dismissal of charges or acquittal after trial.  Where this is not possible, she will build the most compelling case possible to negotiate a plea reduction from a position of strength.  Call 832-699-1966 today for your free consultation or visit my website to learn more about my firm.


[i] 559 U.S. ___ (2010)

[ii] 559 U.S. ___ (2010)

[iii] 384 U.S. 436 (1966)

[iv] 451 U.S. 477 (1981)