Assault: A Closer Look at what Constitutes Assault

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At the most basic level, assault constitutes an act of inflicting unwanted physical contact upon a person or the threat to commit such an act. While this represents the definition of assault, it is much more complex.

Classes of Assault

The first element that makes assault cases complex is the different classes of assault.

Misdemeanor Assault

Misdemeanor assault charges carry less severe punishments than felonies, but still constitute serious crimes.  In order to be charged with a misdemeanor assault charge, the prosecutor must prove a person:

  • committed an overt act that a reasonable person would find as offensive or provocative
  • or actually caused bodily injury to another person
  • or threatened another person with imminent bodily injury

Felony Assault

One major differentiation factor between misdemeanor and felony assault is the presence of a weapon. If a weapon is involved, it is classified as felony assault. In order to be charged with a felony assault charge, the prosecutor must prove a person:

  • used a weapon, or caused serious bodily injury
  • or attempted to choke/strangle another person
  • or the other person was disabled, or elderly or a public servant

Types of Assault

Assault charges can fall within a variety of different categories depending on the act that was committed and who was impacted. Generally, assault charges will fit within the following categories:

  • Aggravated Assault
  • Domestic Violence
  • Harassment
  • Sexual Assault
  • Terroristic Threat

When it comes to assault charges, having the right legal representation is very important. Navigating the complicated legal process in assault cases is paramount and Mary Beth Harrell has the knowledge and expertise to build your defense. The team of assault lawyers at Harrell Law Firm understand the complexities of the various types of assault and can assist you today. Contact us today to speak with an attorney.

Understanding the Different Types of Sex Crimes

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A sex crime accusation has serious consequences and can impact the rest of your life, damaging your personal and professional reputation. There are many different types of sex crimes and if you have been accused of a sex crime, it is important to understand what the differences are between the types of sex crimes.

Indecency with a Child

Under Texas law, indecency with a child occurs when a person engages in sexual contact with a child or causes the child to engage in sexual contact, with the child being younger than 17 years of age. Indecency with a child can also occur when a person exposes themselves to a child or causes a child to expose themselves.

Indecent Exposure

Indecent exposure is committed when a person exposes any part of their genitals in order to arouse sexual desire. This can also be committed when a person is reckless about whether another person is present and would be offended.


In the state of Texas, the crime of prostitution is committed when a person knowingly engages in the exchange of sexual contact for a fee. It is also a crime to promote prostitution in Texas.

Public Lewdness

It is illegal in Texas to engage in sexual intercourse or sexual contact in a public space or in the presence of a person who will be offended.

Sexual Assault

Sexual assault constitutes a wide array of crimes and is committed when a person causes sexual contact to another person without consent.

Child Pornography

The possession of child pornography is illegal under Texas law and is committed when a person knowingly possesses material depicting a child younger than 18 engaging in sexual conduct.

Sex crimes carry serious consequences. While all sex crimes are not equal, they all carry stiff penalties and a cultural stigma. If you’ve been accused of a sex crime, you should contact a sexual assault lawyer immediately. Mary Beth Harrell has the experience and understanding to protect your rights. Contact Harrell Law Firm today to speak with a sexual assault attorney who can help.

Defending An Honorable Vet Suffering From PTSD Who Was Charged With A Drug Possession

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My client, John, walked out of Bell County district court with his “freedom papers”. His words not mine. John’s road to freedom spanned thirteen years. Back in 2006, John was arrested for possessing a usable amount of cocaine during a raid on a drug house outside Fort Hood. He was another homeless, jobless Army veteran with an incipient addiction. He’d meritoriously served 3 combat tours in Kuwait, Iraq and Afghanistan but was never evaluated for PTSD.  He’d never been arrested before.

Back then, he couldn’t make bond and wanted to get out of jail so he agreed to be placed on probation. The judge put him on probation for 6 years. Six (6) years. Probation is no cake walk. He had to report once a month to the probation office. He had to pay fees, fines and court costs adding up to a couple of hundred dollars a month.  He had to work off 300 hours of community service, complete and pay for an outpatient treatment program, attend 12 step meetings, complete several other classes, observe a curfew, and find a job and find a place to live and find a ride. A set up for failure. But a better option than going to prison. He got out and he tried, but six years can seem like an eternity when you’re that far behind. Within 6 months he gave up, started using again, left Texas and roamed from state to state. Meanwhile, the county filed a motion to revoke his probation and an arrest warrant was issued for him. But Texas wasn’t really looking for him.

A few months ago, John’s caregiver, Susan, called my office in a panic. She told me that VA stopped his benefits because he was a “fugitive from justice”. VA found the active arrest warrant so VA stopped his issuing his disability check, and refused to authorize his medication and counseling for severe, chronic PTSD with dissociative features, anxiety and anger issues. He wasn’t a danger to others but he was a danger to himself without the meds and treatment. They tried to work with VA but how do you reason with a bureaucratic monolith?

I worked with Susan to obtain his DD214, military awards and commendations, character letters, VA disability rating letter, letters from psychiatrists and providers stating his mental health diagnosis and treatment and medications. VA rated John as 100% disabled.

I initiated contact with the District Attorney’s office to try to get the warrant removed and the probation discharged but as the prosecutor would later tell the judge, “Ms. Harrell has her job to do and I have mine.” I gave the prosecutor the lengthy packet documenting John’s military service and awards, his VA disability rating, and the severity of his mental health diagnosis and extensive treatment. The prosecutor verified that John had not – not – been arrested again during that 13 year absence from Texas. But the prosecutor pointed out that John did not complete any of the probation requirements and was classified as an “absconder”. He said his hands were tied and he didn’t feel good about it.

So Susan drove John back to Texas and he turned himself in on the arrest warrant at the county jail on a Sunday. They brought his five different medications and the jail was administering them once a day though he was supposed to get his anxiety meds four times a day. John was holding it together.

We scheduled his probation revocation hearing for that Thursday. My client would break under the stress of testifying so I called Susan to testify. Susan had even completed the National Caregiver Veteran Training Program offered by VA so she could better assist John. She’s a lovely woman. She’d gone to Goodwill when she got to town to buy an outfit for court. She brought it by the office seeking our approval the day before the hearing. She looked sharp.

Susan told the court that she and John were adopted into the same family but were years apart in age, about 15 years. She’s known him all his life. John was born to a drug-addicted mother whose parental rights had been terminated. John has been living with her in California for about 4 years. She got him into VA for evaluation, diagnosis and treatment. She said it made a huge difference for John though he still has outbursts from time to time. She said on one occasion family and friends were gathered for a backyard barbeque and something triggered John’s PTSD. He started yelling and turning over tables. They called the police who took him to the hospital to get help. Susan testified that John has not used drugs or alcohol while he’s been with her. That he goes to all his VA appointments and takes his meds. Susan testified through her tears that “the Army broke him.” Susan is an army veteran too and she is proud of her military career. But she testified that “the Army broke him.” The courtroom was silent.

I asked the judge for mercy. I told the judge that California must be a liberal state because when their wounded vets act out, the local police take them to the hospital not to jail.  I asked the judge to dismiss the probation revocation and release my client from jail that day. I argued that it benefits no one to keep John in jail for any length of time and would grievously set back his mental health recovery. I gave the same packet to the judge that I’d given to the prosecutor documenting John’s meritorious military service and mental health issues.

It’s important to understand that Bell County is home to Fort Hood the largest military installation is the US. Our soldiers have been serving in armed conflicts since 2001. Our judges and prosecutors have become inured to the “PTSD defense.” Sympathy has been replaced by skepticism and frustration.

And the judge ultimately does not want to appear to be rewarding bad behavior. My client possessed cocaine then fled the state while on probation. He did do that, he violated the law. My job is to show facts that mitigate that behavior. John was dealing with his undiagnosed PTSD by using cocaine. After he stopped using and got the help he deserved and earned through his military service, he turned himself in on the warrant and was prepared to face the consequences.

I had to prove to the judge that John wasn’t “playing the PTSD card” as an excuse and I was successful. The judge dismissed the probation revocation and dismissed the underlying felony drug charge. John was released from jail that day and did not have a felony drug conviction on his record. Susan drove John back to California to get his VA benefits and care reinstated. Having an experienced, caring drug lawyer take on your case makes all the difference. If you or a loved one is experiencing a similar situation, feel free to contact Mary Beth Harrell today.


What to Do When You’re Arrested for Drug Possession in Texas

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According to the Substance Abuse and Mental Health Services Administration, 10.1 million people reported driving under the influence of illicit drugs in 2014. Even more individuals choose to use drugs without ever getting behind the wheel. Although drug use is more common than most people would like to admit, the reality is that being caught with illicit substances can still have very serious consequences.

Understanding Texas Drug Crimes

You may think that using and carrying around your drug of choice is no big deal. In some states that might be true. But in Texas your entire future could be at risk if you’re charged with drug possession. Depending on the type of drugs found in your pockets, your car, your home, your luggage or even your backpack, you may face different penalties. Whether you’re accused of possessing cocaine, methamphetamines, ecstasy, prescription drugs, or marijuana, you could face harsh punishments that might include large fines and serious prison time. If convicted, your driver’s license could be suspended. If convicted of felony possession of a controlled substance, it could be extremely difficult for you to find a job and housing. Ultimately, one drug charge could change your whole life.

What to Do if You’re Arrested for Possession of Drugs

If you’re arrested, stay calm and be respectful of law enforcement. That doesn’t mean volunteering information; it simply means keeping your wits about you. Don’t argue with law enforcement, you will lose. Give the officer your name, date of birth and photo ID. But otherwise invoke your right to stay silent and refuse the search.  Be polite and smart, don’t answer questions until you obtain legal counsel. Never consent to the search of your person, vehicle, home or belongings. Because of the serious consequences you could face, it’s imperative that you hire a smart reputable drug lawyer. Your attorneys can ensure that your rights are protected and that you won’t make any mistakes that can hurt your chances in court.

Whether it’s marijuana or meth, a misdemeanor or felony, you need a lawyer. Trying to fight these charges by yourself will never work in your favor. You deserve help from a lawyer who has the experience to craft a superior defense. To learn more or to schedule a consultation, please contact the law offices of Mary Beth Harrell today!

First Offenses: Do You Really Need a DUI/DWI Lawyer?

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If you’re arrested for a DUI/DWI, it’s essential to understand the risks this poses for your future — especially if you opt to go it alone. If you are convicted of DUI/DWI – even your first – you will lose your driver’s license, pay a fine, court fees and surcharges totaling thousands of dollars. You may face jail time. If you’re placed on probation, then you may be ordered to install an interlock device in your vehicle.

A lot of people mistakenly believe that a first-time DUI arrest is no big deal. Although many first DUI offenses are classified as misdemeanors, that doesn’t hold true in every case.

If the allegedly intoxicated driver’s actions resulted in the injury or death of another person, the driver could be sentenced to 10 or 20 years in prison, even if it’s their first offense. Having a child present with you in the car at the time of your arrest can also result in felony charges. If these or other serious circumstances were a factor in your case, you will benefit from seeking out assistance from an experienced DUI/DWI lawyer. Because you could face serious prison time, it’s a smart idea to hire an experienced lawyer to mount a serious defense and potentially reduce the charges against you or get them dismissed.

For example, if your field sobriety test results can be called into question, your BAC levels were inaccurate, or arrest procedures were not followed, your DUI lawyer may be able to get the case dismissed or reduced to a lesser charge like attempted DWI/DUI or reckless driving.

The experience and training that your lawyer brings to your case makes a huge difference in the outcome. In most cases, it’s recommended that you hire a reputable lawyer — even for a first DUI arrest. For more information on how our firm can help you, please contact Mary Beth Harrell today.

DUI/DWI Myths Vs. Reality: 5 Misconceptions

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There are many misconceptions when it comes to information about DUI/DWI. To help sort out any preconceived ideas about what might cause an arrest or whether a DUI charge will stick, here are five busted myths about DUI and DWI.

1. Only people who drink and drive get arrested. Not true. Sober drivers are arrested for DUI/DWI. A police officer only needs probable cause that you’re intoxicated for them to arrest you. You may have been driving erratically because of fatigue or the breathalyzer may have given a false positive.

2. A field sobriety test can’t be used against me if I don’t take it. True. You can be still be arrested even if you refuse to take a field sobriety test but if you perform poorly on those tests then it will be used in court to try to prove you were intoxicated. There are many reasons why a person will perform these tests poorly: overweight, fatigue, bad knees, bad feet, poor physical coordination, age, stress, anxiety or other mental health issues. So it is better to not take the tests.

3. You won’t be arrested if you pass the field sobriety test. Not true. Police officers don’t rely solely on field sobriety tests to determine if there’s probable cause to arrest you. You can still be arrested for DUI/DWI even if you pass the test.

4. You won’t be arrested for DUI/DWI if you’ve pulled over to sober up. Not true. It’s always a good idea to pull over if you don’t trust yourself on the road. But you can still be arrested for DUI/DWI if the officer believes you were driving while intoxicated before you pulled over.

5. You can’t be arrested if your impaired driving was caused by medications. Not true. You can be arrested for DUI/DWI if your legal medications impaired your driving. It’s crucial that you look at the side effects of your medications before you get behind the wheel. Certain prescriptions can cause you to be drowsy, which can make affect your driving skills,

Where can I find a DUI attorney?

Mary Beth Harrell and her associate lawyers have the expertise you need to help you understand the details of your case and to work for you. For more information or to schedule a consultation with our DUI attorneys, contact Mary Beth Harrell today.

What to Do if You’ve Been Accused of Sexual Assault

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Take Your Case Seriously
The cornerstone of our criminal justice system is that you are innocent until proven guilty. Unfortunately, the court of public opinion usually convicts without the evidence. While there are countless men and women who should be believed by law enforcement and loved ones when they come forward to tell their stories, there are too many people who are falsely accused because of mistaken identity, misremembered events, or even acts of revenge. In this day and age, the general public may immediately side with the accuser, rather than with the accused. Even though a surprising number of sex assault cases do not have DNA or any other witnesses besides the person making the accusation, the prosecutor will not hesitate to take your case trial. Although you will certainly get your day in court, you shouldn’t put blind faith in our system. Just because you know you’re innocent doesn’t mean the truth will set you free. The prosecutors, police, their experts and your accuser are building a case against you. It’s vitally important that you hire an experienced, tough smart defense lawyer, rather than hoping that these accusations will simply go away.

Remain Silent

Any sexual assault lawyer will tell you that if and when you are arrested, you should invoke your right to remain silent. Doing so can ensure your rights are protected. When you’re facing charges like these, you should make it a rule to remain entirely silent about your case. You can, of course, trust your sexual assault lawyers and should be completely up front with them. But refrain from talking about your case to others, even if you think you can trust them. Don’t post anything that even alludes to your case on social media, either. Remember that if you say nothing, the prosecution will have much less to use against you in a trial.

Hire a Sexual Assault Lawyer
This area of law is extremely complex and the consequences you’ll face are incredibly serious including prison and lifetime registration as a sex offender. Don’t assume that only guilty people hire lawyers. It’s the smartest thing you can do to safeguard your future. If you or someone you know has been accused of sexual assault, hiring an attorney is an important first step. To learn more, please contact Mary Beth Harrell today.

240th Anniversary of the Declaration of Independence

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declaration of independenceIn an historic event in honor of our nation’s 240th anniversary, Mary Beth Harrell will lead local lawyers in Readings of the Declaration of Independence starting at noon at the flag pole in front of the Bell County courthouse in Belton. Bell County lawyer will join with lawyers around the lone star state who will lead Readings in all 254 counties. This event has been organized by the Texas Criminal Defense Lawyers Association. It was first held in 2010 in just a handful counties.

The Declaration of Independence is our nation’s most cherished symbol of liberty embodying our stand against tyranny. Our founders resisted the illegal and immoral practices of the crown. Today, we continue to fight against the abuses of government: police and prosecutorial overreaching and misconduct. Prosecutors continue to withhold evidence, courts persist in plea mills, police abuse our citizens, and appellate courts engage in intellectual dishonesty to achieve a desired result while disregarding rules of law. Our readings are our reminder to all in the criminal justice system that abuses of power will be exposed and fought by the defense bar.

Please join us in honoring our nation’s most sacred document in the spirit of independence.

Successfully Suppressing a Search Warrant in Federal Court

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As published in the Voice

The Facts

Mary Beth Harrell attorneyMy court-appointed client, Jermaine Jones (JJ), a career offender, had been indicted in the U.S. District Court for the Western Dis­trict of Texas, Waco Division, for possessing just shy of 46 grams of crack cocaine and a loaded .45 handgun. Four Deputy U.S. marshalls (DUSMs) and three Texas Department of Public Safety Criminal Investigation (DPS CID) agents arrested JJ on local state warrants for felony possession of a controlled substance and money laundering. The agents found the drugs, gun, and a wad of cash in his apartment while conducting a protective sweep for dangerous persons after his arrest. Okay, he’s done, you might say. Let’s pull out the sentencing guidelines and do the math. He’s looking at a lot of time.

Stay with me. It gets interesting.

Prior to executing the warrants, the DUSMs and DPS CID agents conducted surveillance of the apartment where JJ and his girlfriend, Marcy, were known to reside. Marcy was named on the lease but JJ wasn’t. JJ’s silver Mitsubishi car was parked out front, and the license plate came back to JJ’s mom, who owned it. While conducting surveillance, the agent in charge called his confidential informant (CI). The CI told him if the Mitsubishi is there, then JJ’s inside. Agents did not observe any drug trafficking activity; no one was going to and from the apartment.

After a while, agents saw Marcy leave the apartment, drive to Popeye’s, pick up two meals and two drinks, then return to the apartment. Agents did not speak to her, did not detain her, and let her re-enter the apartment. A few minutes later, Marcy left the apartment again, got in the car and started to drive off. One marshall and one agent got into their respective cars and blocked her exit. The agent in charge then interviewed Marcy. Marcy didn’t have any warrants. She told the agent that JJ was in the apartment, gave the front door key to the agent and permission to use it to enter the apartment. Marcy was detained outside the apartment.

With guns drawn, the agents and marshalls approached the apartment door and opened it with the key. JJ was not in the front room. The agent called JJ by name to come to the door. It took a minute for JJ to respond. No doubt he was rather surprised and needed a second or two to think it through. He wasn’t a novice nor a fool, so he slowly emerged unarmed from the back bedroom, shirtless and carrying a pair of shorts with his hands in the air. He cooperated and complied with their orders. He was arrested at the front door. The agent searched JJ and found a small amount of marijuana in the pocket of his shorts. They did not find any drugs or weapons on his person or within his immediate reach, nor in plain view in the front room. They did not ask JJ for permission to search the apartment.

The agents and marshalls then conducted a “protective sweep” of the entire apartment for “dangerous persons.” The agents looked underneath the bed in the back bedroom, where they observed the drugs and cash. Then the agents asked Marcy for permission to search the apartment. Marcy refused. The agent in charge prepared an affidavit for a search warrant, which was granted by the local district judge. The agent returned to the apartment with the search warrant and confiscated the drugs, gun, and money from under the bed.

The search warrant affidavit stated: The agents went to the apartment to execute the state warrants, conducted surveillance, saw JJ’s Mitsubishi, watched Marcy leave the apartment, drive to Popeye’s, return with “two meals and two drinks,” and enter the apartment. She was later detained when she exited the apartment again and returned to the vehicle. The agent questioned her, and Marcy confirmed that JJ was in the apartment and provided her apartment key. Agents detected the odor of marijuana inside her vehicle. Agents used her key to enter the apartment, JJ emerged from the back right bedroom, “was taken into custody near the door,” agents searched the shorts in JJ’s hand and found a useable amount of marijuana in the pocket. Officers entered the residence, “conducted a protective sweep for other persons,” looked under the bed in the back right bedroom, observed a ziplock bag containing cash and a quantity of suspected crack cocaine, and observed marijuana residue on the nightstand.

As I read the search warrant affidavit and looked at the apartment photos taken by the agents, my instincts told me that the protective sweep didn’t pass the smell test. So I called Marcy’s retained lawyer. He told me that the protective sweep was allowed and would survive my challenge. I wasn’t so sure, so I called my friend, Stan Schwieger, an appellate lawyer who’s way smarter than I am. Did I have a viable motion to suppress the sweep, the search warrant, and the contraband? Stan wasn’t sure either, but he believed it was worth pursuing. Stan and I spent several hours sorting through the facts and identifying legal issues. Stan re-acquainted me with Wayne LaFave. As you may recall from your law school days, LaFave literally wrote the book on search and seizure.

I don’t know any trial lawyer who enjoys researching and writing a brief in support of a motion to suppress, including me. So I knuckled down to the painful task, thinking it an exercise in futility, but you gotta do what you gotta do. After all, my client was a career offender.

Stan’s assistance was invaluable. He edited my motion and brief for logic, substance, style, and form. He’s my Yoda. If you don’t have a friend or mentor like Stan, find one real quick.

The Brief

A. Protective Sweep of Persons

A protective sweep for dangerous persons incident to arrest may be a permissible exception to the Fourth Amendment’s prohibition against unreasonable search and seizure, depending on totality of circumstances—including the scope and duration of the sweep. The Supreme Court has placed limits on the circumstances, scope, and duration of the sweep. First, law enforcement must have entered legally and for a legitimate law enforcement purpose. Second, officers must have a reasonable, articulable suspicion that the area to be swept contains (a) a person, and (b) that person poses a danger to those on the scene. Third, the protective sweep must be limited to a cursory inspection of only those places where a person may hide, not a full search of the premises. Finally, officers must conclude the sweep once they have dispelled their reasonable suspicion of danger, and they may not continue the sweep after they are no longer justified in remaining on the premises.Maryland v. Buie, 494 U.S. 325, 334 (1990); United States v. Mata, 517 F. 3d 279, 285 (5th Cir. 2008).

1. The facts in this case do not justify a “protective sweep for persons” in Defendant’s residence.

A “protective sweep” made in connection with an arrest will be upheld in circumstances such as the following: The location is a major narcotics distribution or manufacturing point, or police believe that others within may be engaging in more serious conduct at that location, or the arrestee is unlikely to be a solo participant, or that others are seen or heard running into other parts of the premises, or it is located in a violent or dan­gerous neighborhood. Mata, 517 F. 3d at 287, 288; United States v. Charles, 469 F.3d 402 (5th Cir. 2006).

Here, surveillance did not disclose any articulable facts that could give rise to the reasonable belief that any other individuals, besides Marcy and JJ, were residing in the apartment or that criminal activity was being conducted in the apartment either before or during the arrest. The officers were there to arrest JJ for Hill County warrants, where the criminal conduct was alleged to have occurred. JJ resided in McLennan County. The dep­uty U.S. marshall observed Marcy exit the apartment alone and return alone with only two meals. Marcy cooperated with the lead agent and disclosed that JJ was in the apartment alone. She gave her front door key to the lead agent and permission to enter. JJ surrendered to officers at the door and was arrested at the front door. There was no suggestion that the apartment was in a dangerous or violent neighborhood. The agent offered no articulable or specific facts particular to JJ in the search affidavit to justify the protective sweep for persons. The agent did not articulate facts giving rise to exigent circumstances that would require or permit law enforcement to conduct the prior protective sweep.

2. While a search of the place adjoining the arrest is per­mitted, the search of Defendant’s entire residence, and spe­cifically the back bedroom, exceeded the place from which an attack could be launched against officers.

The Supreme Court held that police may “as a precautionary matter and without probable cause or reasonable suspicion look in closets or other spaces immediately adjoining the place of ar­rest from which an attack could be launched.” Buie, 494 U.S. at 334. In this case, the agent and other officers arrested JJ at the front door. Officers then traveled down a hallway to a back bedroom and looked under a bed, which did not immediately adjoin the place of arrest. It is difficult to imagine how an attack could be launched against officers by an individual presumably hiding under a bed in a back bedroom.

3. While officers may search Defendant’s person and the area within his immediate control for a weapon or contra­band, the protective sweep exceeded the area within the Defendant’s con­trol.

Courts have held officers may conduct a search incident to arrest to prevent the arrestee from accessing a weapon or destroying evidence. But the search is limited to the arrestee’s per­son and to the area within his immediate control. United States v. Green, 324 F.3d 375, 378 (5th Cir. 2003)(citing Chimel v. California, 395 U.S. 752, 763, (1969). In this case, the deputy U.S. marshall searched JJ’s person then took him outside the apartment. The space under the bed in the back bedroom was not under the JJ’s immediate control. The protective sweep for persons in the apartment and the area under the bed was a pretext to search for contraband. It was only after the baggie was found under the bed that officers asked Marcy for consent to search, and when that was refused, they sought a search warrant.

B. Sufficiency of the Search Warrant Affidavit

1. If the Court finds the “protective sweep for persons” in this case violated the Defendant’s Fourth Amendment’s rights, then the untainted information remaining in the affidavit would be insufficient to show probable cause to search the Defendant’s residence.

If it is shown that some of the information in the search affidavit presented to the magistrate was acquired in a prior illegal search, the warrant is nonetheless valid if it could have been issued upon the untainted information in the affidavit. United States v. Hearn, 563 F.3d 95, 103 (5th Cir.2009) (stating that it is sufficient that probable cause is shown by affidavit after the illegally obtained information was purged); United States v. Veillette, 778 F.2d 899, 904 (1st Cir.1985)(holding that the police should not be put in a worse position than they would have been in had they not violated the law).

In this case, the search affidavit stated: “Affiant and other officers entered the residence and conducted a protective sweep for other persons. The deputy U.S. marshall looked for persons under the bed in the right back bedroom and observed a ziplock bag containing U.S. currency an (sic) unknown quantity of crack cocaine,” and observed “marijuana residue” on the bedroom night stand.

The only other information cited in the affidavit was a “useable amount of marijuana” found in the right front pocket of JJ’s denim shorts, “which he carried in his hand” when he was searched incident to arrest at the front door. That information alone would not have been sufficient to show probable cause to search the residence. If the tainted information is removed, the court must decide whether the magistrate would have issued a warrant given only the lawfully obtained information.

“This is not a case where the tainted information which is included in an affidavit along with untainted information is trivial or insignificant or merely cumulative. It is a case where the tainted information is of such major importance that its absence creates grave doubt that the warrant would have issued without it. If we are to uphold the fundamental purposes of the Fourth Amendment and the exclusionary rule by which it is implemented, it is my belief that the practice indulged in by the officers in this case must be condemned and the tainted evidence upon which appellants were convicted suppressed.”United States v. Nelson, 459 F.2d 884, 895 (6th Cir. 1972).

2. Information gained during the illegal, warrantless pro­tective sweep for persons prompted the officers to seek a search war­rant.

The Fifth Circuit has noted: “[U]nlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the warrant, the core judicial inquiry before the district court on remand is a subjective one: whether information gained in the illegal search prompted the officers to seek a warrant to search. In the best of all possible worlds, of course, there will be statements or other evidence directly probative of motivation or effect. But in the usual case, in which direct evidence of subjective intent is absent, a court must infer motivation from the totality of facts and circumstances.” United States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992).

The protective sweep for persons under the bed was a pretext to search for contraband. It was only after the baggie was found under the bed that officers asked Marcy for consent to search, and when that was refused, they sought a search warrant. In this case, the information obtained in the illegal search did motivate the officers to seek the warrant.

3. The magistrate did not consider the affidavit purged of tainted evidence.

The Fifth Circuit Court went on to find “we seriously doubt that it is appropriate to apply the deferential, substantial basis standard of review to the issuing magistrate judge’s decision when the magistrate judge never considered the warrant affidavit purged of tainted information.” Restrepo, 966 F.2d at 969.

4. Independent Source Doctrine

When announcing the “fruit of the poisonous tree” doctrine, the Supreme Court limited the exclusionary rule to evidence the police could not trace to some independent and lawful source. Wong Sun v. United States, 371 US 471, 488 (1963). The burden of proof is on the prosecution to establish an independent source. United States v. Leveringston, 397 F.3d 1112, 1115 (8th Cir.2005)(“When the government seeks to rely on the independent source doctrine in a case involving a later-obtained warrant, it should present specific evidence that officers were not prompted by allegedly unlawful activity to obtain the warrant, and should seek a finding on that point”—not done here).

My brief did not address “inevitable discovery” because the facts did not support it. The agents did not obtain consent to search after the protective sweep. Neither JJ nor Marcy made incriminating res gestae statements after the search was performed and the drugs were found—isn’t that amazing?

The Hearing

On cross, I asked the agent in charge (to the best of my recollection—this is not a transcript):

ME: Prior to entering the apartment, did you ask Marcy if there was anyone else in the apartment besides JJ?
ME: But you asked her if my client was in there?
ME: You testified that you’ve been doing this for 16 years, correct?
ME: Marcy had just left the apartment, so wouldn’t you normally ask that question before you enter the apart­ment?
ME: For officer safety?
ME: After all, she was cooperating and gave you her key and permission to enter, right?
ME: So odds are, she would tell you the truth if you asked her who else was in the apartment, right?
ME: But you didn’t ask?
AGENT: I guess I forgot.

Let me say that the Judge did not appear to be favorably impressed by his answers.

ME: You previously testified—when asked by the prosecutor—that you arrested my client at the door, didn’t you?
AGENT: It was inside the apartment.
ME: It wasn’t at the door?
AGENT: No, it wasn’t at the door. It was near the door but not at the door.
ME: How far from the door?
AGENT: Maybe 30 feet.

The Judge interrupted my cross and challenged the agent. The Judge told the agent that he had previously testified—when an­swer­ing the prosecutor’s question—that he arrested the defendant at the door.

AGENT [to the Judge]: No, I don’t think I said that, Judge. I don’t think so. It was inside the apartment.

The Judge challenged the agent again: “No that’s not what you said on your earlier testimony. You said you arrested him at the door.”

I asked a few more questions. Then Judge interrupted me to tell me he was granting my motion to suppress. Nice.

The Court’s Opinion

The Judge granted my motion to suppress and found:

After entering a residence to execute an arrest warrant, of­fi­cers may conduct a limited search for their own protection.United States v. Blevins, 755 F.3d 312, 325 (5th Cir. 2014); United States v. Jackson, 596 F.3d 236. (5th Cir.), cert. denied, __ U.S. __, 131 S.Ct.90, 178L.Ed.2d247 (2010). This “protective sweep” doctrine allows government agents, without a warrant, to conduct a quick and limited search of premises for the safety of agents and others present at the scene. U.S. v. Albarado, 555 Fed.Appx. 353, 357 (5th Cir. 2014), cert. filed No. 14-8787 (Aug. 6, 2014). Evidence found in plain view while conducting the security sweep is admissible, but evidence recovered beyond the scope of the protective sweep is not. Id.; United States v. Virgil, 444 F.3d 447, 451 (5th Cir.), cert. denied, 549 U.S. 879, 127 S.Ct. 365, 166 L.Ed.2d 138 (2006). A protective sweep may occur even after a suspect is arrested. Id.

To be constitutionally valid, (1) “the police must not have entered (or remained in) the home illegally and their pres­ence within it must be for a legitimate law enforcement purpose”; (2) “the protective sweep must be supported by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to those on the scene”; (3) “the legitimate protective sweep may not be a full search but may be no more than a cursory inspection of those spaces where a person may be found”; and (4) the protective sweep “may last . . . no longer than is necessary to dispel the reasonable suspicion of danger, and . . . no longer than the police are justified in remaining on the premises.” U.S. v. Roberts, 612 F.3d 306, 311 (5th Cir.), cert. denied sub nom., Booth v. U.S., __ U.S. __, 131 S.Ct. 839, 178 L.Ed.2d 570 (2010)(quoting United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004)(en banc), abrogated in part on other grounds by Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)). In the present case, the officers possessed no reasonable, articulable suspicion that the apartment harbored any other individuals who would pose a danger to those on the scene.

        Accordingly, Defendant’s Motion to Suppress is GRANTED as to the evidence obtained from the apartment.

The Disposition

The U.S. Attorney dismissed the case against my client.