5th Circuit Court of Appeals
US v. Smith
No. 23-60321 8/9/24
Issue:
Are geofence warrants constitutional under the Fourth Amendment?
Holding:
No. Splitting ways with the 4th Circuit, the 5th Circuit first concluded that acquiring location history data via a geofence warrant is a search. Comparing geofence warrants to the general warrants of the British of the colonial era, the Court found these “warrants present the exact sort of ‘general, exploratory rummaging’ that the Fourth Amendment was designed to prevent.” Responding to the Government’s argument that geofence warrants are different from a general warrant because the information used is limited to a specific time and place, the Court stated, “This argument misses the mark. While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found” (italics in original). The Court concluded, “We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.” Read opinion.
Commentary:
This decision can be divided into three parts: (1) whether the defendants had a reasonable expectation of privacy in the location information on their cell phones, (2) whether the geofence warrant was a prohibited “general” warrant, and (3) whether the federal good-faith exception applied. The Government lost on all three of these questions. A decision from the Fifth Circuit Court of Appeals is not binding on Texas state courts, but prosecutors should definitely not ignore this decision. Instead, prosecutors should keep watch over whether the full Fifth Circuit wishes to review this three-judge panel decision. Because this decision expressly disagrees with the decision of another federal court of appeals, prosecutors should also watch to see if the United States Supreme Court wishes to review this decision. In the meantime, note that the Texas Court of Criminal Appeals is currently reviewing the validity of a geofence warrant that was approved by the Dallas Court of Appeals in Wells v. State, 675 S.W.3d 814 (Tex. App.—Dallas 2023, pet. granted).
Texas Courts of Appeals
Bloxham v. State
No. 01-22-00773-CR 8/13/24
Issue:
In a subsequent trial after the defendant received use immunity to compel his testimony before the grand jury, did the State fail to meet its burden to prove that the trial evidence derived from legitimate sources, untainted by the defendant’s immunized grand jury testimony?
Holding:
Yes. Due to a dearth of Texas caselaw on the matter, the Court looked to guidance from a U.S. Supreme Court case, Kastigar v. United States, 406 U.S. 441 (1972), and other jurisdictions. The Court found that “though the trial court held an evidentiary hearing, the court did not review the evidence to be presented at trial.” The State presented only two witnesses of the 13 it ultimately called at trial and did not present any evidence that it intended to introduce at trial. “Without this information, the trial court could not determine if the State affirmatively proved that the evidence it proposed to use at trial against [the defendant] derived from legitimate sources wholly independent of his compelled testimony.” Because the defendant’s Fifth Amendment right was at question, the Court found the error to be fundamental, constitutional error and reversed the trial court. Read opinion.
Commentary:
Reading this decision, there are many details left out about the facts of this case, such as the substance of the defendant’s grand jury testimony (which the court of appeals did not have). It is not clear whether that testimony could have been (or should have been) made a part of the appellate record, but it does appear that the trial judge had access to the defendant’s grand jury testimony in ruling on the defendant’s motion to dismiss. At the very least, this decision is instructive to prosecutors who wish to prosecute a defendant after immunity has been granted: Present very clearly what evidence and testimony is to be presented at the defendant’s trial, and show very clearly how the defendant’s immunized testimony had nothing to do with the development of the evidence and testimony to be presented at trial. Kastigar is a little-litigated issue in Texas state courts, so it is possible that the Court of Criminal Appeals will want to review this decision.
Addison v. State
No. 01-23-00294-CR 8/13/24
Issue:
Was the defendant’s blurting out that he was not “a big-time dope dealer and that [he’s] just trying to make it in this world” during the serving of a search warrant on his residence a res gestae statement that was admissible at trial?
Holding:
Yes. The Court found that while the defendant was indeed in custody, the statement did not qualify as being part of an interrogation and was thus admissible against him at trial. Read opinion.
Commentary:
This is a good, but brief, analysis of a defendant’s res gestae or spontaneous statements. The defendant had been asked one question, which he answered. It was at that time that he blurted out the statement quoted above. It clearly was not in response to further interrogation.
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NICB’s annual conference is October 8-9
The National Insurance Crime Bureau’s (NICB) seventh annual National Conference of Insurance Crime Attorneys being held October 8 and 9 in Schaumburg, Illinois.
This growing event brings together federal, state, and local prosecutors from across the country who focus on property/casualty insurance fraud and vehicle crimes to learn and discuss current issues and emerging trends, strategies, and pitfalls encountered while prosecuting fraud, and engage in networking with colleagues. Registration is free and up to six continuing legal education hours will be included (pending state approval). Limited financial assistance for lodging is also available. The registration page can be found here.