Xavier Law Firm

With over 25 years of experience and thousands of successful cases, Harvard Criminal Defense Attorney, Xavier V. Chavez, provides the immigrant community with an unparalleled defense in Texas and California

Criminal Defense Attorney in Houston, TX for the Immigrant Community

Are you a legal permanent resident (LPR) in the United States? Are you perhaps an undocumented immigrant who was brought in as a child? Or perhaps you were born in the States but are a member of the Hispanic community. If any of the above is true for you, and you are facing criminal charges, you will benefit greatly from counsel and representation by an attorney who understands your particular needs as a member of your community.  To represent you effectively, your Criminal Defense attorney must understand the individual challenges you face as much as he understands the criminal justice system.  Your attorney needs to be intimately familiar with everything you are likely to face so that he can assist you in navigating through the veritable minefield that is today’s criminal justice system.

It may come as no surprise to you that the Criminal Justice System is structured in such a way as to be particularly detrimental to communities of color; this is especially true in southern states like Texas. We want you to be aware of the reasons why the system operates like it does; but more importantly, should you be charged with a crime, we want you to understand how the criminal process works, from the moment you are detained until the day you are tried in a State Court.  We will protect your legal rights as a citizen, legal permanent resident, and as a human being.   

We Will Help You Every Step Of The Way

01

Available Payment Plans

With the availability of payment plans, our clients at Xavier Law Firm are able to have a fast, easy, and secure way to have at affordable cost.

02

Two Offices

Having offices in California and Texas, Xavier Law Firm can help you in either state; with worldwide availability for immigration matters.

03

Language Barrier​

Often times linguistic barriers cause misunderstandings. At Xavier Law Firm, we can help you in English, Spanish, French or Italian.

Would you like us to get in touch with you?

If you would like us to evaluate your case and inform of how we can help you, please leave your contact information and we will contact you as soon as possible.

Criminal Offenses in Texas

There are decisions in our lives that may not always bring good consequences. We are human, after all, and we are prone to err. There are other situations, however, that may be forced on us, situations in which you are truly an innocent party and a victim of prejudice. Once you understand that many states have followed an agenda of discrimination against your community, you do well in seeking the advice of a competent and experienced criminal defense attorney.

The offense of “Driving While Intoxicated” (DWI) is nothing less than a curse that plagues the Hispanic community, and one that has been used to weaponize the judicial system against our people. A DWI occurs when you have driven a vehicle under the influence of alcohol, and it is of course an extremely common crime, one that many people in the US commit, even without realizing it. While it is possible to receive a DUI penalty for driving under the influence of drugs, driving while intoxicated is a term that is used especially in relation to alcohol consumption.

There is a possibility of getting arrested for a DWI even when you are not actually driving. For example, if the police find you sitting at the wheel, with the key in the ignition, you could be arrested even if you have not actually driven the car!

In general, a driver is considered to be intoxicated if, when performing a breathalyzer test and when blowing, the value amounts to more than 0.08. This applies to any driver who is over 21 years of age. Nevertheless, if someone is under 21, he could receive a DUI penalty if the test result indicated less than 0.08 because then the person is not legally allowed to consume alcohol and, therefore, the test should not give any evidence of alcohol consumption.

Recently, immigration laws have been passed to make a person who has been repeatedly convicted of a DWI, a “security risk” or a “threat to national security”. Why? Well, since many members of the immigrant community are charged with DWIs every year, this is an obvious attempt to toughen immigration measures so that less immigrants can receive immigration benefits such as obtaining a Green Card, citizenship, or DACA. If you are an immigrant, and you have a DWI, make sure you have an excellent immigration and criminal defense attorney by your side. (Click here for more information).

Having a family and a good marriage has increasingly become a challenge in the world today. A lot of social problems begin in the family, and the media does not foment values that instill in society a behavior conducive to harmony and peace. Widespread divorce and domestic violence have been some of the consequences of many of the changes the world has undergone in the past century. This is also a common problem in the immigrant community.

The state of Texas does not take domestic violence lightly and subjects the defendant to severe punishments. Any physical altercation between people who live in the same household, and are considered to be family, is deemed a violent act. That being said, sometimes people can be accused of a violent domestic crime even if they have not committed a crime. In our experience, sometimes children can call the authorities when there is an altercation at home and get their parents, who may not have a good command of English, in a lot of legal problems. You will need a Criminal lawyer if you ever see yourself in a situation like this.

On the other hand, people sometimes believe that domestic violence is just related to physical violence. This assumption leads to several victims suffering other types of domestic abuse without doing anything about it. In Texas, domestic violence goes beyond physical abuse. It entails more than what is seen on the outside. Please, click here for more information. (Click here for more information).

Every state in the country has different penalties against drug possession. It is very important to keep in mind that laws regarding controlled substances are very severe in Texas. If you have been caught in possession of drugs, then your best bet is seeking an experienced criminal defense lawyer.

Possible repercussions for drug possession, as stipulated in the Texas Controlled Substance Act, include; heavy fines, treatment for drug addiction, driver’s license suspension, probation, or jail term. The penalties for drug possession charges vary depending on the type of drug, presence of drug paraphernalia, how the drugs were stored or concealed, and past convictions. This is why having a legal counsel who works in your best interest can get you a reduced sentence. (Click here for more information).

In Texas, the crime of “theft” encompasses more than just taking something away from its owner. Whenever you are found in possession of a stolen item even if you’re not the one who stole it, you might be charged with theft. If a person is not capable of proving that the item given or sold to them is not stolen, he will face criminal charges. 

For instance, if you buy a car and the person selling it to you does not provide a property executed certificate of title (pink slip), you’re supposed to report to the Texas Department of Motor. Failure to do this will get you guilty of breaking Texas’ law against theft. You are also required to file the county tax collector/assessor in 20 days after receiving the vehicle failure to which you will be charged with theft. (Click here for more information).

Texas has become well-known for its harsh rulings regarding sex crimes (such acts include rape, possession of child pornography, internet sex crimes, prostitution, sexting, indecency with a child, online solicitation of a minor and aggravated sex crimes, among others.). Even sex crimes allegations can destroy a person’s reputation forever. The majority of these crimes are classified as felonies which can even result in sentences of life in prison. Given the stakes, it cannot be overstated how important it is to have a competent criminal defense attorney by your side.

Oftentimes, a sex crime may involve sexual conduct, which is defined by the state as an crime in spite of consent of the parties involved. For instance, consent is not always grounds for a legal defense. It is important to highlight that laws concerning sex crimes are usually changing in terms of how the prosecution interprets them. Due to the constant change and complexity of the law, you should choose an excellent Criminal lawyer. (Click here for more information).

The worst place to face homicide charges in the United States is Texas due to the harsh penalties for those convicted. This is why the idea of being accused of criminal homicide could be among the worst experiences someone can go through. You could be sentenced for life or even get the death penalty. A homicide case definitely requires the attention of an excellent criminal defense lawyer, it is no exaggeration to state that your life might depend on it. 

A criminal homicide refers to the actions of a person that causes the death of someone else. As per Texas law, there are different types of criminal homicide. The main types are murder and manslaughter. A sentence will vary if the homicide is not intentional but is “reckless” or “negligent”, in which case it would be manslaughter. Some forms of manslaughter could get substantially reduced sentences, especially when compared to murder. A competent criminal defense could get you acquitted, a reduced sentence, or a sentence for a lesser form of homicide. (Click here for more information).

The Texas Penal Code has codified different kinds of offenses that go by the name of assault. A serious form of assault, or in its aggravated form, is an assault directed to a family member (or someone with whom you have been in a relationship), and it is a first-degree felony. Robbery, for example, is also categorized as a such a felony when it is perpetrated on a government official such law enforcement agent, a bodyguard or the witness of a crime.

If you are convicted of an aggravated assault, you can expect to spend between five and 99 years in prison because it is a first degree felony. You could also be fined for up to $10,000. Needless to say, this can be a very serious threat to your future and freedom. You can be fined up to $10,000. A sentence for an aggravated offense can change your life forever.

The minimum sentence for your indictment is nothing you can walk away free. You can get your freedom if you should contact an experienced criminal defense attorney in Houston, Tx. At Xavier Law Firm, we have witnessed many members of our community being charged with aggravated assault, when in reality they are either responsible of a lesser degree of assault, or not where there was no offense at all. This is why a solid and competent defense is of paramount importance. (Click here for more information).

Getting convicted does not necessarily mean the end of the road for your case. Your criminal defense attorney and the judge will make sure you are aware of your right to appeal the decision of the court. Filing for an appeal means that you request a higher court in the judicial system to review the decision made on your case.

A criminal defense attorney who has experience with the laws and procedures related to criminal appeals will know how to submit your application to the Texas Court of Appeals in the jurisdiction where you underwent trial. There are only 14 courts of appeal in Texas.

Appeal cases do not need requirel new witnesses or evidence, They are mostly about reviewing the case for any errors committed during the trial. Such judicial reviews may include the examination of the clerk’s records and the reporter’s notes about your case. Your criminal defense attorney will make these documents available for the court when he or she prepares for the appeal. (Click here for more information).

Most people at some point in their lives have made some kind of mistake they regret. Sometimes those acts that people regret can leave a mark in their criminal record. The majority of convictions are hard to remove from your criminal record. Nevertheless, Texas law gives people the opportunity  to purge some of this information from their record. This is what is called expungement or expunction.

Texas law regarding expungement is allowed in criminal cases records which did not lead to a finding of guilt, or certain class C misdemeanors when the defendant successfully completed deferred adjudication. Getting an expungement can be indispensable if you also have an immigration case.

If you are found guilty or if you pleaded guilty in a criminal case, you will not be eligible for expungement. You will also not be eligible for expunction if your arrest relates to a probation violation warrant or if you abscond from the jurisdiction after being released on bond. The help of a criminal defense attorney might be essential in attaining your expungement. (Click here for more information).

Charges related to money laundering can be serious and have the potential to damage your life professionally and personally. This can occur as a result of hefty financial sentences or serving a long time in jail.

There are several ways to conceal the source of illegal money but by now you probably know how easy it is to be caught in any money laundering scheme. This is because laws that involve money laundering are updated regularly to keep up with different ways criminal use to make their illegal funds appear legitimate. Texas is the worst place to be facing money laundering charges due to its severe punishment system.

If you are caught up in such charges, the best thing to do is to seek the advice of an experienced criminal defense lawyer who has in-depth knowledge regarding the complexities of money laundering charges. (Click here for more information).

Kidnapping is usually an emotionally delicate situation that mostly has a permanent stigma to the offender as well as the victim. If you are facing kidnapping charges, there is a high possibility that you were acting within your right. Wading through the legal complexities of your case will require the professional help of an experienced attorney from our highly capable legal team.

According to criminal law, kidnapping is the act of taking away or transporting an individual without their consent. It also involves confining the victim or placing them under false imprisonment without the legal right to do so. Kidnapping can also entail forcing another person into a vehicle and transporting them elsewhere, or locking them in a room to prevent their escape.

In order to understand the level of charges and the penalties that you might face from the prosecution, there are two key terms under the Texas legal code that you should know. (Click here for more information).

People in the juvenile justice system are normally referred to as ‘juvenile offenders’ or ‘juvenile delinquents’. The overall rate of juvenile crimes has grown over the years. You will agree with me that once delinquency in juveniles has started, it is difficult to reverse.

Teens often forget that poor choices can lead to criminal punishments. Juvenile offenders are byproducts of industrialization and urbanization. Prevention programs need to be put in place before a delinquent behavior is reached.

In order to fix this problem, we must first look for the root cause. Social factors such as family structure, education and economic status, drug and substance abuse, domestic violence may lead to juvenile lawlessness. Teenagers are still immature, they are therefore most likely to mess up or commit crimes not fully in their control. (Click here for more information).

Probation and parole are both alternatives to internment. Probation is a punishment as part of a sentence ordered by the court, to which instead of serving a jail term after conviction, the offender reports to a probation officer as per the set schedule. The offender is allowed to stay in the community on the promise of good/changed behavior.

On the other hand, parole is the conditional release of a person from prison before the completion of your sentence term. When you are on parole, you are still under sentencing but serving it out of confinement. Any violation during parole can lead to you returning to jail. In both probation and parole, the party is supervised and is expected to follow certain guidelines. (Click here for more information).

Today’s world presents us with a lot of uncertainties, crime being one of them. Crime and violence is prevalent in almost every state in the United States. That is why many feel the need to protect themselves, their family and those around them. It is the right as a citizen of the United States to keep and bear arms for self-defense as stipulated in the Second Amendment of the Bill of Rights.

In Texas, a rifle with a barrel length of less than 16 inches and a shotgun with a barrel length of less than 18 inches are both considered weapons. This is in accordance with the Texas criminal code and federal law. To purchase a firearm here, you need to be at least 18 years of age and be a resident of Texas. No permit is necessary.

More than 1.2 million residents in Texas are active holders of disguised handguns with no laws accounting for the long guns except for the existing federal restrictions. Texas gun laws regulate the sale, possession and use of firearms in Texas. It focuses mainly on the carrying of guns rather than restricting its ownership. (Click here for more information).

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The Criminal Justice System and the Hispanic Community in Texas

Pay close attention to this brief history based on Professor Michael C. Campbell’s article Politics, Prisons, and Law Enforcement: An Examination of the Emergence of “Law and Order” Politics in Texas (Law & Society Review , September, 2011, Vol. 45, No. 3), because it will help you appreciate why the Criminal Justice System works in the way it does, and why you need a competent Criminal Lawyer in Texas if you face criminal charges.

According to Professor Randolph B. Campbell’s Gone to Texas: A History of the Lone Star State (2003), the waves of immigrants who entered the Mexican State of Coahuila y Tejas in the early 1900s came from southern states, bringing with them the institution of slavery, and the racial hierarchy that sustained it. Once a part of the Union, Texas was one of the seven states who seceded before Abraham Lincoln became the president of the United States in 1861, defending slavery and opposing Federal attempts to regulate it. After the Confederacy’s defeat, “ex-Confederates” took over the reins of the state once again during the Reconstruction, particularly during the constitutional convention that produced Texas’ current constitution. These “ex-Confederates” used their power to limit state power and exclude minorities such as African Americans, Native Americans, and Mexicans. But how exactly did they accomplish excluding minorities?

Professor RB Campbell further explains that the Legislature met for only 140 days every two years, making it extremely hard for State Legislature to pass any meaningful reforms. Moreover, passing legislation required Constitutional Amendments even for minor issues, strict limits on taxation were imposed, education was left in the hands of decentralized agencies, and minorities were, in effect, disenfranchised. All these measures became part of the of the Texas Constitution in 1876, and successfully vanquished African Americans, Native Americans, and Mexicans from the political and social hierarchy. Nowhere could the end result of these administrative arrangements be more evident than in state prisons.

In his book Texas Tough: The Rise of America’s Prison Empire (2010), Historian Robert Perkins claims that Texas prisons reflected their traditional racial hierarchy. Prisoners were overwhelmingly African American and Mexicans, and these prisoners were used in plantation-style work that resembled the times of slavery maybe a little too much. Prisons grew larger and became financially independent, so that an agricultural industry that profited from the labor of the quasi-slave inmates arose. You can see some pictures and read more about them in this article written by Maurice Chammah (Prison Plantations One Man’s Archive of a Vanished Culture, 2015). Needless to say, the conditions to which minorities were subjected in these prisons were precarious, but things were about to take a turn for the worse.

Conditions in Texas prisons were so inhumane, as was to be expected, that in 1972 an inmate called David Resendez Ruíz began a class action against the Texas Department of Corrections (TDC). The case went all the way to the Supreme Court in what is considered today “the most far-reaching lawsuit on the conditions of prison incarceration in American History”. The case is known as Ruiz v Estelle (1979), and in this case the Supreme Court held that the conditions of prisoners created by the TDC was “cruel and unusual punishment” in contravention of the United States Constitution. The Supreme Court ordered the state of Texas to overhaul its prison system, and allowed Federal oversight over its restructuring. Thus, the Federal Government compelled Texas to change the conditions of the prison system, and major reforms were carried out by Governor William P. Clements.

In the 1980s, President Ronald Reagan ran on a conservative platform that wanted to be tough on crime, just as his predecessor had done. This so-called “Law and Order” stance came at the same time that the Federal government compelled Texas through the decision in Ruiz v Estelle, and Governor Clements took the mantle and started to make reforms. According to Professor Michael C. Campbell:

“The Clements administration’s strategy… held a meeting in January 1980 with key law enforcement groups, including the Sheriffs’ Association of Texas, the Texas District and County Attorneys Association (TDCAA), the Texas Police Association, and the Texas Police Chiefs Association and formulated a set of potential proposals for the 1981 legislature. The proposals that emerged from this meeting seem modest by today’s standards, but were viewed as ambitious by law enforcement and experienced legislative aides at the time”

One of the “accomplishments” of the Clements Administration was a massive expansion of the prison system, and the Criminal Justice System in general, although the statistics at the time clearly show that crime was not in fact a big issue in the state. What did they do with these new reinforced incarcerating capabilities? Professor MC Campbell explains:

“Though federal litigation dismantled Texas’s plantation-style prisons, this coalition reconstituted it in a form they could accept—one that provided prosecutors with ample space to cage an expanding swath of the state’s convicts, most of whom were black and Hispanic”

According to the Prison Policy Initiative, a non-profit think tank, there are today over 251,000 people in state prisons, local jails, Federal prisons, and other detention centers. When you count people on probation and on parole, the number of people under the radar of the Criminal Justice System climbs to over 726,000. Keep in mind that it is estimated that the entire population of Texas is estimated to be (as of 2015) of 27,469,114, of which 54% are White, 28% are Hispanic, and 9% are Black. However, minorities of color are overrepresented in Texas prisons (34% of all inmates are Hispanic, 32% are Black, 33% are White, including Hispanic Whites). For instance, statistically, you far more likely to end up in prison and receive harsher sentences if you are a person of color.

This brief history should make it evident that the record of political, social, and judicial discrimination in Texas since the 1900s makes it very difficult for minorities such as African American and Hispanics to receive real justice. An entire system has been established, perfected, and “weaponized” to incarcerate people belonging to minority groups, and has been targeting Hispanic immigrants more and more each year. If you are in a situation in which you need to face the criminal justice system, you need a Criminal lawyer that understands the system to the core; you need someone who is part of your community, and understands its needs and problems.

Many Criminal Defense Attorneys do not understand the needs, history, language, diversity, and other idiosyncrasies particular to the growing Hispanic community in the United States. At Xavier Law Firm, we understand our community very well. We have successfully helped thousands of individuals in criminal cases of all sorts, and our Criminal Defense Attorneys will fight for you.

Would you like us to get in touch with you?

If you would like us to evaluate your case and inform of how we can help you, please leave your contact information and we will contact you as soon as possible.

Legal Rights of Detainees

When you gain a better perspective of the social and historical circumstances in Texas, which are especially relevant when you belong to the Hispanic community or any other minority, you may start to wonder what you can do to protect yourself, or even if a Criminal Defense Attorney can actually help you at all. The truth is that there is help at your disposal; this help derives from the US Constitution and comes in the form of rulings from the Supreme Court that guarantee fundamental rights of people who are forced to interact with the criminal justice system. In this section, you are going to learn what your legal rights are, why you need to know them, and how you can use them.

After the American Civil War, some amendments were made to the US Constitution to guarantee the rights of African Americans and by extension to all people in the United States. The Fourteenth (14th) Amendment guarantees that the Government cannot take away your “life, liberty or property” without first following the “due process of law”. This originally meant that the Government cannot condemn you for a crime if they do not follow the laws and rules of procedure set by any given state. But what if the state passes laws that do not protect you?

In the landmark case of Powell v Alabama (1932), the State of Alabama did not provide a criminal defense lawyer to the nine defendants. The Supreme Court held that a US state cannot take away your freedom if it does not respect your rights guaranteed in the US Constitution. Little by little, the Bill of Rights in the Constitution were forced into criminal cases in every state, and nowadays all the states are compelled to respect those rights. If the state’s criminal justice system does not respect your rights, you go free.

 

Clarence Earl Gideon was a man unjustly accused of burglary, and he did not have enough money to pay for an attorney. The courts in Florida decided that the fact that he could not afford a criminal defense attorney was not really their problem, and that they could do nothing to help him because the state law said that it would only provide a defendant with a criminal defense attorney if the defendant was accused of a capital offense. Mr. Gideon’s case went all the way to the Supreme Court in another landmark case, Gideon v Wainwright (1963), and the court ruled that the state violated his Sixth Amendment right to assistance of counsel.

Does it make a difference whether you are represented by a criminal defense attorney or not? Mr. Gideon’s case was retried, but this time he did have a criminal defense lawyer at his disposal. He was found not guilty. The truth is that despite the bad comments made against lawyers at times, the help of a Criminal lawyer can make all the difference in the world. But does it help to have just any lawyer?

As you have read so far, the Federal Government has forced states to provide defendants with a criminal defense lawyer. Also, the state of Texas (and many other states as well) want many people to go to prison so they can use them as cheap labor or simply to remove them from society out of hatred and contempt. However, if the state provides you with a criminal defense attorney, and if it must respect your other legal rights, then you might actually go free, and they cannot have that, can they? The solution they have found is to underfund public defenders’ institutions and overload public defenders with so many cases, that they in effect these lawyers cannot provide you with an effective representation. Please, click here to watch a short 10-minute PBS documentary about the working conditions of public defenders in the United States.

As you may have realized already, even though you have the Constitutional right to an attorney, you might not get the proper representation that could help you reduce your sentence or go free, as any good lawyer would do.   

But what if you had a poor representation and were sentenced as a result of that? A competent criminal defense attorney could make use of another legal instrument. To understand this better let us analyze the case of David Washington. Mr. Washington pleaded guilty in a court in Florida to the murder of three people. He confessed that although he had a previous criminal record, he was under a lot of pressure because he could not feed his own family. Before this, his Criminal lawyer did not even try to present any evidence of his character, no witnesses, no psychological evaluation, nothing that could even count as a mitigating cause. He was convicted for the three charges, but he managed to appeal all the way to the Supreme Court. In the case of Strickland v Washington (1984) the court could not quash Mr. Washington’s sentence, but it did uphold the right, according to the Sixth Amendment, which states that providing a criminal defense lawyer is not enough, the defense counsel must in fact give an effective defense, and if proven that his defense was deficient and detrimental to the defendant’s case, it can be retried.

Furthermore, an more relevant to the Immigrant community, in the case of Padilla v Kentucky (2010) it was held that a criminal defense attorneys have a duty to inform their clients that a guilty plea can result in deportation, they must advise their clients regarding the loss of other immigration benefits, and they cannot remain silent in regards to the deportation consequences. At Xavier Law Firm, our criminal defense attorneys have been successful reopening and releasing countless clients who had previously received an ineffective assistance of counsel. It is admittedly not an easy thing to do, but with our experience and perseverance we have been able to protect many members of our Immigrant community whose rights were violated.

 

As considered before, you have the right to a criminal defense attorney, effective assistance of counsel, and due process of law. Another right that is closely connected to the “due process” requirement is granted by the United States Constitution, and it is the right “against unreasonable searches and seizures” as provided by the Fourth Amendment. This right dates to the time of English colonial rule. The famous English jurist Sir Edward Coke stated that “the house of everyone is to him his castle and fortress” and acknowledged that the King had not authority to intrude on his subjects’ own dwellings unless the authorities had a warrant (Semayne’s Case); these ideas eventually became important features of US Law. It is important for every person to understand that nowadays the Fourth Amendment provides more rights and powers to law enforcement agencies than to people who are targeted by them, particularly minorities. However, you should understand the few instances in which you are indeed protected “against unreasonable searches and seizures”, and what powers the police have over you.

The Exclusionary Rule: In 1911, Fremont Weeks was arrested in Kansas City. The police searched Mr. Weeks’ house without a warrant and seized some evidence. Mr. Weeks was found guilty. On appeal, the Supreme Court ruled that the evidence, which had been obtained without a legal warrant granted by a judge or magistrate, was obtained illegally and this was a violation of Mr. Weeks’ Fourth Amendment right. This decision in Weeks v United States (1914) created the Exclusionary Rule of evidence which states that evidence obtained illegally cannot be considered in a court of law. However, it was to be applied only in Federal cases. It was not until Mapp v Ohio (1961) that the Supreme Court held that the Exclusionary Rule should be applied in state law as well. It is important to note that there are exceptions to this rule.

 

  1.     “Good faith”: when the police rely on a defective search warrant.
  1.     Independent Source: when the police obtained evidence illegally but also obtained it in another legal and independent way.
  1.     Inevitable Discovery: when the police obtained evidence illegally, but the evidence would have been found anyway.

Warrants 

Traditionally, all searches without a warrant issued by a judge or a magistrate are illegal. Some of the requirements a warrant must have are the following:

  1.           The officer who requests the warrant must swear by means of an oath that the facts he used to request the warrant are true.
  2.           Those facts must allow the judge or magistrate to make an independent decision about whether or not to issue the warrant.

                 III.          The magistrate must be neutral and detached. A warrant cannot be issued by a prosecutor.

  1.         The warrant must specifically describe where to search and what to search.
  2.           The police must “knock and announce” their presence. This rule in itself has some exceptions. For example:
  • If the police reasonably suspect that knocking and announcing would be dangerous, they can abstain from doing so. Also, if they think that evidence is being destroyed.

     

  • The Patriot Act 2001 authorized “sneak and peak” warrants, which means that the police can now search while you are away from home and tell you about it later.
  1.       “Probable cause” is a vague standard. Illinois v Gates (1983) is the leading case for probable cause. This standard does not mean that a crime is probable, therefore as long as a police officer believes there is a “substantial chance” or a “small probability”, the requirement for Probable Cause is satisfied. This means that the standard is very low, and most magistrates will approve most warrants.

 

When are warrants NOT required?

  1.     When the circumstances are so obvious that it would make no sense to make the police stop and go get one (exigent circumstances). For example, when after a crime, a criminal hides into a house (no warrant is needed for the police to break into that house), or when the police know of evidence being destroyed. They can also use force under those circumstances.
  2.     When the police see evidence in plain view, they do not require a warrant, and they can also seize evidence from a place they are legally allowed to be.
  3.     CARS: There is something called the “automobile exception” and it exists for 2 reasons. First, cars are mobile, and they create their own exigency. Second, people have a lower expectation of privacy in a car since they have glass windows. Under this rule, all the police need is “probable cause” and they can search the entire car without a warrant. But they cannot search in places where “probable cause” would be lacking.
  4.     “Search incident arrest”. When the police arrest someone based on probable cause, they can search that person without a warrant to make sure the person does not have a weapon, and they can also seize any other evidence they find during that search. If the person is arrested in the car that gives the police a new reason to search the car.

     

Searches without “Probable Cause” or a “Warrant”

Nowadays, the courts are more likely to say that the most important part of the Fourth Amendment is “reasonableness”. This means that every day less and less warrants are required. There are so many exceptions to the warrant rule that the only place for which the police need a warrant is the home. The biggest change came about in Terry v Ohio (1968). This case gave the police the authority to stop someone on the street and gave them the authority, based on suspicion of criminal activity, to frisk the person based on that same suspicion. This decision has been often directed towards members of minority communities.

Another point to keep in mind is that searches are always legal when there is consent, and as long as the consent is not coerced.

The Supreme Court decision in Brigham City v Stuart (2006) held that the police can enter into a house if they do it to help someone, in the same way as a firefighter would break into a house to provide help. This opens the door of your house to the police as long as they believe there is danger and they need to help someone.

By now you must be aware that the police want to catch as many criminals and possible, but behind the banner of “Law and Order”, there is a system put in place that has been incarcerating and discriminating minorities of color for centuries. Robert Watts was arrested for assault, and later accused of murder. Mr. Watts was interrogated day and night for six days. He was never told he had the right to remain silent or that he had the right to a criminal defense attorney.  On the sixth day he finally signed a confession, but he later admitted that he had only done so because he “couldn’t take it any longer” and the had been forced by the police to sign the confession. In the case of Watt v Indiana (1947) the Supreme Court held that the confession was involuntary and reversed Mr. Watt’s conviction. This decision opened the door to the Supreme Court to go against the worst kinds of pre-trial abuses, but the scales were about to tip in a different direction.

Because of the massive amount of cases against the authorities, and because protecting the rights of criminals or minorities has never won a lot of votes in the United States, the Supreme Court would later try to compromise its position and find a middle ground with the police’s intention to obtain confessions to ease the prosecution of criminals. The final decision was made in the famous case of Miranda v Arizona (1966).

Ernesto Miranda was arrested for the kidnapping and rape of an 18-year-old girl. The victim picked him out of a suspect lineup, and Mr. Miranda was later harshly interrogated for 2 hours during which he was never told that he had the right to a criminal defense attorney, or the right to remain silent. The case was taken to the Supreme Court, and that is when the Miranda warnings came about. They provide that the police can interrogate a suspect, they can lie to the suspect, or coerce in different ways a confession out of him AS LONG AS they let him know of his rights first. The rights they are to state to a person who is detained are the following:

  • You have the right to remain silent and refuse to answer questions.” This is an extremely important right a detainee has because the police are trained to make a person confess. It is recommended NEVER to waive this right and, as it will be explained later, a detainee must expressly and clearly state that he does not give up his right to remain silent.

     

  •  “Anything you say may be used against you in a court of law.” You can take the police at their word, they will use anything a suspect says in order to make a person confess, so that when he goes to court, there is very little left to do except to accept the heavy sentence he is given. More often, though, the confession will make the Criminal lawyer’s job to negotiate with the prosecution very difficult, and the plea bargain would favor the prosecution.

     

  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.” This is the wisest course because a criminal defense lawyer will inform the suspect of his options, and the attorney will tell him what to say and what not to say in a way that will favor his own case. The earlier you hire a criminal defense lawyer, the better results you will get in your case, especially when you are being discriminated against, overcharged, or if the police have otherwise skipped the due process to hurt your defense. NEVER speak to the police without an attorney present.

     

  •  “If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.” As it was mentioned earlier, public defenders are well meaning and they will help you, but in Texas and most states they are overworked and underfunded so that they cannot assist you to the best of their ability. This is done on purpose because politicians do not wish to help criminals, and this in itself aids in criminalizing African American and Hispanic minorities.

     

  • If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.” As already mentioned above, a suspect should always make use of his right to an attorney.

     

  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?” Once again, a suspect’s answer should be a clear ‘No’. The likelihood of obtaining a good verdict will be much, much higher when a competent criminal defense attorney is by the defendant’s side to protect him from incriminating himself, and signing confessions that would be detrimental to his own case.

The evidence shows that over 80% of detainees waive their rights. This seems to indicate that the change has benefited the law enforcement agencies which must read those rights to suspects of crimes. The case of Berhuis v Thomkins (2010) further changed the law by making it a requirement to state out loud that you do not give up your Miranda rights, if you do not do this, the police will assume that you have. This is why today it is very important that you clearly let them know that you state and in fact make use of these rights that could save you a lot of problems, time, and even money.

As you have seen so far, states’ law has usually gone in a direction that has affected our Hispanic community in a negative way. But Federal law, in general, has created rights for people in the United States that you and criminal defense attorneys can use to protect the members of your community. More than a critique, it is a reality, and you must be aware of this reality, especially if you or a loved one is forced to a position in which you need to deal face to face with the authorities. What cases are you most likely to be accused of? How can our criminal defense lawyers in Houston, TX help you?

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