The Probable Cause Fairy: AKA An Officer’s “Training & Experience”

October 27, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It was very early on in my experience with criminal law when I first learned the power of an officer’s “training and experience.”

Much of our legal system is built to prevent profiling of any kind.  Some of those safeguards include both statutes and case law which prevent officers from arresting or even just hassling people based on “hunches.”  Courts have long recognized where there is a hunch, there is a good chance there is profiling.

Courts insist probable cause must be based on what is called articulable fact and then making reasonable deductions from those facts which make it probable a crime is in progress or just occurred.

An example of articulable fact would be “Defendant swerved into the next lane of traffic without signaling.”  The statement is concrete and establishes an objective fact, i.e., the car moved from one lane to the next.  A reasonable deduction would be there is something wrong with the driver.  An officer can and should investigate more.

But the topic is still pretty mushy.

Here’s an example of something which probably isn’t articulable fact: “Defendant took several steps away from his car after I asked him to exit the vehicle.”  This doesn’t really tell us anything, does it?  Can we deduce this person has done something wrong or is trying to get away with something?  It’s hard, huh?

How Police and Prosecutors Convert Hunches into Articulable Facts

They do it through using the magical phrase referring to an officer’s “training and experience.”

So lets change the above example… “Defendant took several steps away from his car after he exited the vehicle.  In my training and experience, people in possession of drugs will often separate themselves from the contraband.”

Really?  Which class was that in the police academy?  How many times, officer, has a defendant taken several steps away from a car because they had drugs… and would you mind trying to remember those cases…. because this sounds like you just made it up?

See how it works?  By inserting “training and experience” into the sentence, SHAZAM — what was once just a hunch is now articulable fact.

In defense of police and prosecutors — I don’t think they really see what they are doing is trying to manipulate the standards.  They may honestly believe police get a ‘hound dog’ sense after being on the streets for their careers…. and maybe they do.  But the bottom line is blurs the line between “articulable fact” and a hunch.  Unfortunately, courts often go along with the fiction.

The Defense Lawyer’s Struggle

Our constant struggle is trying to root out exaggeration and, for lack of a better word, fudge from prosecutors and police which helps them attain probable cause or convince a jury to convict.

Any time I hear that phrase in the courtroom it sets off my spidey sense and it is time to fasten the seat-belts.  But that is just my training and experience!

*Jeremy Rosenthal is Board Certified in Criminal Law in Texas.  Nothing in this article should be considered as legal advice.  For legal advice about any situation contact an attorney directly.

 

 

 


Our Number is (972) 369-0577. Put it In Your Phone Right Now. Yes, YOU!

June 13, 2017

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Put our phone number in your phone right now.  It is (972) 369-0577.

Why do you want a criminal defense lawyer’s number in your phone?  It should be self explanatory but many don’t think they’ll ever need it.  Fair enough.

There are two main reasons.

The First Reason

I recently spoke to several groups of non-lawyers about criminal justice.  They were interested in my topic but not particularly excited or passionate.  Why should they be?  To them criminal cases happen in newspapers or on television and — like advertising — it might affect a few people out there but it doesn’t affect them.

At the most recent lecture, I decided to bring the topic home for a more engaging discussion.  I wanted the audience to know why they all needed our phone numbers in their phone.  And the answer is simple —  You don’t lead a life of crime and you don’t plan on getting arrested…? GREAT!  Me too!

But Rosenthal & Wadas has built a big criminal defense law practice right here in the suburb of McKinney, Texas?  How did we do that…?  Because people’s sons, daughters, aunts, uncles, grandsons, granddaughters, sisters, brothers, friends and co-workers are getting arrested here.  They get arrested for DWI, domestic violence, drug charges, embezzlement, sexual assault and on and on and on.

Now, when a criminal case gets hot — it gets hot.  When the arrest or accusation happens — the case is hot.  We potentially create more value by getting into a case right at the beginning than at any other time.  This is because we can represent someone during an investigation or sometimes just help put the fire of an arrest out so we can begin getting to the bottom of what happened to get the best end result.

Sometimes key legal advice or representation at the inception of a case can make the whole thing go away.  You read that right.

So if you don’t plan on ever getting arrested — great — but put our number in your phone for when you get an unexpected call from a co-worker, friend, or just a non-conformist family member.  People’s friends and loved ones are being arrested every-day right here in Collin County and they’ll often turn to you looking for direction.  I hope it is never your loved one, but why not be prepared?

Our office has a lawyer on call 24/7.

The Second Reason

Putting our number in your phone is free.  (972) 369-0577.

Do it now while you’re thinking about it.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact a lawyer directly.

 

 


A Different View on Civil Liberties

August 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’ve got a world view which many have a hard time understanding when it comes to rights and it is this:  I don’t need most of them.  At least, I don’t think I do.  Most people I know really don’t need them either.

Though I fight hard for my clients against the powers that be — I’m a conformist at heart. I don’t live on the fringe and by that I mean I don’t say things which get authority figures so angry they’d want to jail me.  My neighbors don’t hate me because of what I drive, how I dress or what goes on at my house (at least I don’t think).  No one hates me because of who my family is or isn’t.

You could give me more rights than everyone else and I still wouldn’t need them.  The right not to stand in line at the hottest night club (I’m not cool enough), the right to the best tickets to NASCAR events (I’m not a fan), or the right to own the first house on the moon (I’m too scared to go and I couldn’t afford it).  These rights are useless to me because I  don’t need them.

On the flip side — you could probably take away many of my rights and though I wouldn’t be happy about it, my life would probably continue uninterrupted.  I’d probably find a way to get along without my right to be free from illegal searches or my right to remain silent.  I’ve never needed to exercise these rights and I do my best to lead my life in a way where I hopefully never will.

The question isn’t whether you, me, or anyone we know values these rights because unfortunately experience teaches me we don’t.  When you tell people their rights will be taken next they normally don’t care.

When someone unpopular or someone who says, does, or is accused of doing something heinous needs their rights — do we deal with them in an honest way as the framers of the constitution intended?  Do we make up the rules as we go along and give them lip service about their civil liberties?

All too often I deal with an establishment that in some small ways rationalizes minimizing someone’s rights.  Simple rights like the presumption of innocence, the right to be free from an inappropriate search, or someone’s right to an affordable bond can be infringed because “look at what you did!”  I wonder if this is what third-world countries might do to someone they don’t like.

Our rights guaranteed by the Constitution aren’t for the popular people, the conformists or the good every-day citizen.  They don’t need them.  They are for the people on the fringes, the unpopular people, and the misunderstood.  People who need meaningful rights most of all are the people we’ve determined in our heart of committed some terrible wrong.  This is what separates America from a third-world-country.

So when I argue about protecting rights to a jury — I don’t tell them to protect someone’s rights because those rights could be taken from them or their family one day… Unfortunately, I’ve come to learn people don’t care about their own rights for the same reason I question whether I need them myself.  Instead, I ask them what a third world country would do with a person like my client… and would we tolerate Americans acting the same way as them?

Can we be like a third-world country?  I suppose if the shoe fits.

*Jeremy Rosenthal is a licensed attorney in the State of Texas.  He is Board Certified in Criminal Defense.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


Why Acquittals Normally Don’t Make the News

May 12, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The reason is simple.  The vast majority of people charged with crimes generally aren’t in the news to begin with and they want to keep it that way even if they win.

Publishing a win actually defeats the purpose of wiping a record clean with an expunction. Erasing every trace of the arrest everywhere was the goal in the first-place.

Law enforcement, on the other hand, has every reason to make announcements and otherwise publish cases which put them in a positive light.

The result is that in the paper, we tend only to read about the wrong-way drunk driver or meth addicts who say they’re wearing someone else’ pants.

But that’s not reality.

I won two trials last week (Sorry, you knew I had to do some bragging).  Neither case will make the news nor should they.  The fact is people are acquitted every day for countless reasons…

  • The police made up their mind at the beginning of an investigation & wouldn’t let the facts get in the way;
  • Prosecutors chose to believe an accusation from someone which wasn’t substantiated with anything other than emotion;
  • Police played doctor during a DWI arrest rather than let medical professionals determine if a person’s behavior was due to some other factor than pills or alcohol;
  • An officer profiled teenagers out late and in doing so stretched the law a bit too far in making a stop…

…And the reasons for acquittals go on, and on, and on….

The point I’m trying to make is this — what we read in the newspaper and what we see on TV are true stories that leave a skewed impression.  And whats the harm in that?  It causes jurors to be more skeptical of defense theories (and then everyone acts shocked when someone’s been behind bars for 25 years for a crime they didn’t commit).

But the truth, as with most things in life, is somewhere in the middle.

*Jeremy Rosenthal is an attorney licensed to practice in Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


How Important Is a Police Report in a Criminal Case?

February 18, 2014

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It depends on who is reading it.

Police reports are used for many different reasons.  Insurance companies use them to evaluate car accidents and both criminal and civil lawyers rely on them to prepare for cases.  In and of themselves, a police report typically isn’t admissible evidence in a court of law so they’re importance is often over-stated.  Prosecutors will generally review a report in deciding whether to pursue charges and what charges to pursue.

Combinations of Fact and Fiction

Most police reports in criminal cases are combinations of both fact and fiction.  While there are probably officers who are deceitful enough to fabricate facts in a report — my guess is not many officers are willing to jeopardize their career for the sake of a single arrest.

Instead police combine objective observations (such as the car was blue, the road was wet, or gun was loaded) with supposition, hyperbole and mild exaggeration.  Police will often take subjective observations and attempt to make them more objective in an effort to support their conclusion.

“In My Training and Experience”

Police officers commonly use the phrase “in my training and experience” both when they testify and when writing police reports.  This is a way of converting subjective supposition into objective fact — and it typically makes the defendant look guiltier.  Sometimes the officer actually has such experience and training and sometimes they don’t.

For instance, police are actually trained to detect marijuana through the distinctive odor.  Perhaps the police academy has ways of re-creating the odor chemically or they actually burn marijuana for training.  Also police in the field frequently encounter people smoking marijuana in parks or in cars so officers have enough exposure to marijuana to know the burnt odor.  When an officer says in his/her report they know the odor of marijuana “through their training and experience” this is generally an accurate statement.

On the other hand are examples where a person is reported to be “nervous.”  An officer might suggest in his report the defendant’s nervous demeanor meant he was in the process of selling drugs because “in (his) training and experience” drug dealers act nervous when they get pulled over.

Another example during a DWI arrest might be where the officer states the defendant leaned on the car for support while being questioned by police.  In the officers “training and experience” this is a clue of intoxication but probably just looks like someone with their butt against the car while being questioned.  Maybe the police academy gives training in these areas backed with scientific studies but probably it’s just something made-up in good faith to substantiate the officer’s opinion.

Who Uses the Police Report?

Prosecutors will review offense reports to see if they have the basic elements of each case covered.  Prosecutors typically don’t scrutinize police reports but in their defense it’s not really their job to do so.

…But I Don’t Agree with the Police Report

Most of my clients find reviewing a police report to be an agitating experience.  Both witnesses and defendants alike report they were mis-quoted or statements they did make were selectively included in the report.  A police report carries no actual legal weight other than it’s ability to persuade a prosecutor to move the case forward.  The time to contest the police report is at trial where the judge and the jury can learn the whole truth about what happened — not just the polished events described by the police.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Possession of Drug Paraphernalia

February 12, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Possession of Drug Paraphernalia in Texas is a Class C Misdemeanor punishable by fine of $500.  It is a lower charge than possession of marijuana (or anything else for that matter under Chapter 481 of the Texas Health & Safety Code), but the charge is completely harmless.  It still looks pretty bad on your record if you don’t deal with it properly.

Drug Paraphernalia is defined as “equipment, a product, or material that is used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance in violation of this chapter or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance…”

As you can see the definition is extremely broad and gives police and prosecutors tons of discretion in charging you.  Just because police or prosecutors decide something like a baggie or a clip of some sort is “paraphernalia” doesn’t mean a jury has to accept it.

Drug paraphernalia charges are often made in conjunction with other arrests for marijuana or cocaine.  Mishandling the paraphernalia charge can actually ruin your chances for expunction (or clearing your record) of the bigger charges.  Also, pleading guilty to paraphernalia can sour your ability to non-disclose a prior arrest even after you’ve successfully completed deferred adjudication.

Like drug cases, paraphernalia cases have common issues with search and seizure as swell as possession under 1.07(39) of the Penal Code being “actual care custody control or management.”

Ultimately paraphernalia cases have a good chance of being expungable but they do have to be handled with knowledge and skill.

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly


Criminal Credit or Debit Card Abuse

August 13, 2011

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It’s not a crime to be irresponsible with your credit cards.  It is a crime to use someone else’s credit card without their consent.

Credit or debit card abuse is defined by Texas Penal Code 32.31 which holds, in part, beginning in subsection (b);

(b)  A person commits an offense if:

(1)  with intent to obtain a benefit fraudulently, he presents or uses a credit card or debit card with knowledge that:

(A)  the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; or

(B)  the card has expired or has been revoked or cancelled;

The code lists out several other ways credit or debit card abuse can be committed other than just using someone else’s credit card.  Other examples include using fictitious credit cards, possessing someone else’s credit card without their consent with intent to use it, or buying or selling credit or debit cards (unless, of course, you are the issuer).  You can read the entire statute here to see the full list of violations.

Credit or debit card abuse is a state jail felony unless it is committed against someone over the age of 65, in which case it is a third degree felony.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.