First-Degree Murder, the Text Messages and Hearsay

This post examines a recent opinion from the Court of Appeal, Third District, California: The People v. Fisher (2017). The court begins the opinion by explaining what the case involves, what the charge was and what occurred at the trial level:

A jury found defendant Jacob Reed Fisher guilty of first degree murder. On appeal, he challenges the admission of several text messages. He first contends the trial court erred in admitting text  messages from the victim to defendant's cell phone. He argues the texts were hearsay and lacked foundation to be relevant to his motive or mental state. . . .

People v. Fishers, supra.

The opinion goes on to explain how, and why, the prosecution arose:

On January 18, 2014, the victim was beaten and fatally shot in an apartment complex courtyard. During trial, the prosecution introduced evidence of numerous text messages. One series of texts from the victim to defendant indicated the victim had a quarrel with defendant and codefendant before the murder. Another series of texts involved codefendant asking a friend for a ride (for himself and defendant) after the murder. Defense counsel moved to exclude the texts from the victim's phone but not the texts sent by codefendant.

People v. Fishers, supra.

The court then quotes from the text messages at issue in the trial, dividing them into “”text messages from the victim to the defendant” and “text messages between codefendant and a friend, after the murder.” People v. Fishers, supra.

The text messages from the victim to Fishers consist of the following:

In the days leading up to the January 18 murder, the victim sent several text messages to defendant, regarding a dispute over a gun:

`When you gonna see mee bro i'm tired of chasin ur bitch ass and why u lie to people, u knew gun was there cuz i called u before you left apartments, fukin pun.’ (Sent Jan. 16, 2014 at 4:37 p.m.)

`What ru hoping to accomplish by doin this? U stole from a friend cuz u were butthurt bout a name? Grow the fuck up little boy! Thought you were more gangst.’ (Sent Jan. 17, 2014 at 9:40 p.m.)

`Little albino bear, this is brown bear, going to go tax this sticks guy, be nice to have u watchin my back/w/pistol, put this shit behind us! What d ya say I.’ (Sent Jan. 18, 2014 at 12:35 p.m.)

People v. Fishers, supra.

The Court of Appeals then explains that

Defense counsel moved in limine to exclude the texts. He argued they were hearsay, lacking in foundation (asserting no evidence showed defendant received or responded to them), not relevant, and more prejudicial than probative. The prosecution responded the texts were offered for the nonhearsay purpose of showing the effect on defendant. The prosecution added there was sufficient evidence the phone belonged to defendant and that he had received the texts.

The trial court denied the motion to exclude the texts. The court referenced other evidence of a dispute between the victim and the two codefendants and explained the texts were not offered for the truth of the matter asserted but as circumstantial evidence of motive and intent.

People v. Fishers, supra. In a footnote appended to the end of the final sentence in the first paragraph, the Court of Appeals explains that the

prosecution did not specify the evidence. But at trial, the parties stipulated that, if called, defendant's mother would testify the phone number the texts were sent to belonged to defendant. And defendant's phone sent text messages before and after the victim's series of texts, including texting `[c]all me’ to codefendant shortly after the victim's last text.

People v. Fishers, supra.

The opinion goes on to explain that the

trial court denied the motion to exclude the texts. The court referenced other evidence of a dispute between the victim and the two codefendants and explained the texts were not offered for the truth of the matter asserted but as circumstantial evidence of motive and intent.

The court, however, limited the evidence to defendant. The jury was instructed: `[y]ou can only use this evidence as to [defendant] only, as it has relevance, if any, to the effect it had on defendant . . ., specifically his state of mind, attitude, intent and motive. [¶] This evidence is limited to defendant . . . and not as to [codefendant].’

People v. Fishers, supra.

The Court of Appeals then takes up the text messages between Fisher’s co-defendant “and a friend, after the murder”, explaining that

Shortly after the murder, codefendant and a friend--apparently by directing her passenger to text while she drove--exchanged texts:

FRIEND: `On my way what's going on’

CODEFENDANT: `Please hurry I need your assistance asap’

FRIEND: `Do I need hand warmer’

FRIEND: `On my way’

CODEFENDANT: `No just need a ride up out of here like yesterday’

FRIEND: `K b there soon’

CODEFENDANT: `It's me and my little brother’

FRIEND: `K’

CODEFENDANT: `I need up out of here’

FRIEND: `Its me and my girl.’

FRIEND: `5 mins.. coming up on fair oaks’

CODEFENDANT: `Just hurry please and just know the hood is hot’

FRIEND: `K’

FRIEND: `So ... what's new’

CODEFENDANT: `No it's hella hot’

FRIEND: `Cuz u’

FRIEND: `Cominh up now’

CODEFENDANT: `We ya’

FRIEND: `Just passed el camino’

FRIEND: `I'm looking for u’

CODEFENDANT: `I'm in apts right b4 marconi’

The opinion then noted that

the friend picked defendant and codefendant up less than a mile from the murder. Defendant did not move to exclude that text exchange.

People v. Fishers, supra. In a footnote following the codefendant’s reference to “a hand warner,” the court notes that a “hand warmer” is a gun. People v. Fishers, supra. In another footnote, the court explains that the codefendant “referred to defendant as his 1brother.” People v. Fishers, supra.

The Court of Appeals ended this section of the opinion by explaining that the

friend picked defendant and codefendant up less than a mile from the murder. Defendant did not move to exclude that text exchange.

The jury found defendant guilty of first degree murder and found he had used a firearm in committing the offense.

People v. Fishers, supra.

The Court of Appeals then began its analysis of the arguments Fishers made as to the two categories of text messages, beginning with the “text messages from the victim to defendant.” People v. Fishers, supra. It begins with the messages from the victim to Fishers, explaining that

defendant contends the trial court erred in admitting the text messages from the victim's phone. He points out the prosecutor's brief argument to the jury that the texts showed defendant took a gun from the victim, thereby arguing the messages proved the truth of their contents. He further argues the prosecution failed to provide the necessary foundation that defendant was aware of the messages' content, asserting there was no evidence he had received (and read) the texts.

People v. Fishers, supra.

The Court of Appeal then begins the articulation of its analysis of this issue, noting that

`”[A]n out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief.’” (People v. Clark (2016) 63 Cal.4th 522, 562.)

We review the admission of hearsay evidence under an abuse of discretion standard. (People v. Pirwani (2004) 119 Cal.App.4th 770, 787.) We apply the same standard to questions of the existence of elements necessary to satisfy a hearsay exception. (Ibid.) A court's ruling admitting hearsay evidence implies all necessarily fact finding prerequisites. (Evid. Code, § 402; People v. Martinez (2000) 22 Cal.4th 106, 120.)

Here, the trial court acted within its discretion in admitting the text messages from the victim to defendant for the nonhearsay purpose of showing their effect on defendant.

The prosecutor's statement in closing that defendant had taken the victim's gun, although inappropriate and unwise, does not render admission of the evidence error. The court properly instructed the jury that it may consider the messages only for defendant's state of mind, attitude, intent and motive. We presume juries heed admonitions and limiting instructions. (Francis v. Franklin (1985) 471 U.S.307, 324, fn. 9] [that a jury follows instructions is a ‘crucial assumption’ of trial by jury].) And a prosecutor's statements to the jury are, of course, not evidence.

Moreover, there is other evidence that defendant received the text messages. The record reflects the messages were sent to defendant's phone. The parties stipulated defendant's mother would testify the number belonged to him. The record further reflects that defendant's phone was in working order before and after the victim sent the series of texts. Defendant texted codefendant several days before the victim's first text. And two hours after the victim's last text, defendant texted `Call me’ to codefendant. Any remaining doubt as to whether defendant had seen the messages would go to their weight, for the jury to consider.

Accordingly, the trial court did not abuse its discretion in admitting the text messages for the limited purpose of showing their effect on defendant's state of mind.

People v. Fishers, supra.

The court then took up the second, and final, issue in Fishers’ appeal: ineffective assistance of counsel. People v. Fishers, supra. It explains that

[d]efendant also challenges the introduction of text messages sent by his codefendant to a friend, after the murder. He argues the texts did not qualify under the hearsay exception for statements of a coconspirator because the object of the conspiracy-murder--was complete before the texts were exchanged. He further argues his trial counsel rendered ineffective assistance in failing to object to their admission and for failing to seek a limiting instruction.

Evidence Code section 1223 permits evidence of a statement made while participating in a conspiracy, in furtherance of the conspiracy's objective, so long as the statement was made before or during the conspiracy.

Preliminarily, defendant has forfeited his challenge by failing to raise it before the trial court. (See People v. Rogers (1978) 21 Cal.3d 542, 548 [issues relating to the admissibility of evidence will not be considered on appeal absent a timely objection in the trial court].) Nevertheless, we will address the merits in considering defendant's claim of ineffective assistance.

`[T]o establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it “fell below an objective standard of reasonableness ... under prevailing professional norms.”’ (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)

Here, failing to object did not fall below an objective standard of reasonableness because the texts were properly admitted as coconspirator statements. (See Evid. Code, § 1223.) Although the text messages were exchanged immediately after the murder, they were sent while defendant and his co-defendant were still participating in the conspiracy. They were attempting to escape the scene, waiting less than a mile from the shooting. Indeed, their content indicates immediate flight: `Please hurry I need your assistance asap’; `[I] need a ride up out of here like yesterday’; `I need up out of here’; `Just hurry please and just know the hood is hot.’

Defendant's argument that the conspiracy had ended is unavailing. The uncharged conspiracy to murder the victim implicitly included an objective of escaping the immediate area of the shooting. (See Levenson & Ricciardulli, Cal. Criminal Law (The Rutter Group 2016) § 12:23, p. 12:23 [`a conspiracy is generally thought not to end until all acts of escape or concealment are completed . . . [though not] merely because the conspirators act in concert to avoid detection and punishment’]; People v. Saling (1972) 7 Cal.3d 844, 852 [`Particular circumstances may well disclose a situation where the conspiracy will be deemed to have extended beyond the substantive crime to activities contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy’].) Because this evidence was properly admitted as an admission of a coconspirator, defendant's claim of ineffective assistance must fail.

The judgment is affirmed.

People v. Fishers, supra.

The Warrant, the Network Investigative Technique and Child Pornograph

This post examines an opinion from the U.S. District Court for the Northern District of Texas: U.S. v. Perdue, 2017 WL 661378 (2017). The judge begins the opinion by explaining that

[t]he instant motions to suppress and dismiss the indictment challenge the Federal Bureau of Investigation's (`FBI's’) seizure of a computer server that hosted a child pornography website called `Playpen,’ and the FBI's ensuing operation of the website on a government server.

U.S. v. Perdue, supra.

The Judge goes on to explain why, and how, the prosecution arose:

The facts of this case that are material to the court's decision are undisputed. In early 2015, acting on a tip from a foreign law enforcement agency, the FBI located and seized a computer server that contained a child pornography website called Playpen. Playpen existed as a hidden website on the Tor Network, also known as the dark web. Through sophisticated encryption, the Tor Network anonymizes and actively conceals identifying information about website users, including a user's true Internet Protocol (`IP’) address. To access Playpen, it was necessary for users to know the website's address on the Tor Network. Users could not, for example, stumble upon Playpen while browsing the Internet. Once on the Playpen website, users logged in with dedicated usernames and passwords. Playpen offered users various forums for different child pornography topics, including `Incest’ and `Toddlers.’ Inside each forum were discussion posts, images, and videos related to the particular topic.

Because the Tor Network anonymizes its users, the FBI could not uncover who was operating or accessing the Playpen website through normal investigative techniques. The FBI devised a plan to investigate Playpen's users, who would normally be untraceable. The plan called for the FBI to copy the Playpen server and continue to operate the Playpen website on the FBI server. While operating the website, the FBI would use a network investigative technique (`NIT’) that allowed it to retrieve information from the computers of the persons who logged in to the Playpen website. The NIT—computer code developed by the FBI—would be attached to various files uploaded to Playpen. When the website user downloaded a file, the NIT would force the user's computer to send to the FBI the user's actual IP address and other identifying information. With the actual IP address, the FBI could identify and locate the user.

Acting according to the plan, the FBI copied the Playpen server and brought it to a government facility located in the Eastern District of Virginia. On February 20, 2015 the FBI applied for and obtained from a United States Magistrate Judge of the Eastern District of Virginia a search warrant (the `NIT Warrant’) authorizing the FBI to deploy the NIT program for a period of up to 30 days.

On or about February 23, 2015, Perdue accessed the Internet from his residence using a personal computer. Using the Tor Network, he logged in to the Playpen website and clicked on a post entitled, `8 Year Old Blonde,’ which contained child pornography. As the content from this post downloaded onto the computer, the NIT computer code was sent automatically. The NIT relayed Perdue's IP address and other information back to the FBI in the Eastern District of Virginia.

Based on this information, the FBI issued a subpoena to AT & T, the Internet service provider connected with Perdue's IP address, and learned that Perdue was the account holder associated with the address. The FBI obtained a warrant to search Perdue's residence, and it found (1) a computer containing child pornography, and (2) a flash drive containing an 80–page Microsoft Word document containing links to child pornography websites. Perdue subsequently confessed to accessing Playpen and using the Tor Network to obtain child pornography.

U.S. v. Perdue, supra.

The federal judge goes on to point out that

[t]he grand jury later indicted Perdue for the offenses of receipt of child pornography, in violation of 18 U.S. Code §2252A(a)(2)(A), and possession of child pornography involving a prepubescent minor, in violation of 18 U.S. Code § 2252A(a)(5)(B). Perdue moves to suppress all evidence obtained from the NIT, alleging that the authorizing warrant was made without jurisdiction under 28 U.S. Code §636(a) and Fed. R. Crim. P. 41. He also moves to dismiss the indictment. The government opposes both motions.

U.S. v. Perdue, supra. This opinion only examines the court’s analysis of Perdue’s motion to suppress.

The District Court Judge began his analysis of the issues in the case with Perdue’s motion to suppress evidence, in which he argued that the evidence at issue was obtained in violation of the Fourth Amendment.  U.S. v. Perdue, supra. He began the analysis by explaining that

[t]he general rule under the Fourth Amendment is that searches of private property are reasonable if conducted pursuant to a valid warrant issued upon probable cause. See, e.g., Katzv. United States, 389 U.S. 347, 357 (1967). `A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.’ United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005 (citing United States v. Guerrero–Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). `The exclusionaryrule prohibits introduction at trial of evidence obtained as the result of an illegal search or seizure.’ United States v. Runyan, 275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also `encompass[es] evidence that is the indirect product or ‘fruit” of unlawful police conduct.’ Id. (citing WongSun v. United States, 371 U.S. 471, 488 (1963)).

The judge goes on to explain that Perdue argued that the

magistrate judge in the Eastern District of Virginia who issued the NIT Warrant lacked authority under both Fed. R. Crim. P. 41(b) (2015) and § 636(a) of the Federal Magistrate Judges Act, 28 U.S.C. § 636(a), to authorize the search of a computer in Texas. The government responds that the NIT is functionally a tracking device that `was used to track the movement of [information] both within and outside of Virginia.’ Gov't Br. 10. According to the government, `[t]he NIT program, by way of operation, used [a communication stream between the government's server in Virginia and Perdue's computer in Texas] to track from where Perdue's computer signal emanated.’ Id.

U.S. v. Perdue, supra.

The District Court Judge went on to explain that

Rule 41(b)(4) provides that `a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both.’ A `tracking device’ is `an electronic . . . device which permits the tracking of the movement of a person or object.’ 18 U.S. Code § 3117; see also Rule 41(a)(2)(E) (incorporating definition in § 3117). And the rules indicate that `property’ includes `information.’ Rule 41(a)(2)(A).

The courts that have considered the NIT Warrant have split on the issue. See United States v. Torres, 2016 WL 4821223, at *4 (W.D. Tex. Sept. 9, 2016) (collecting cases). Courts that have held that Rule 41(b) was not violated have concluded that the defendants `voluntarily and deliberately came to the Eastern District of Virginia when [they] took affirmative steps to log into the Playpen website by entering a username and password.’ United States v. Sullivan, ––– F.Supp.3d ––––, ––––, 2017 WL 201332, at *6 (N.D. Ohio Jan. 18, 2017); see also United States v. Anzalone, 208 F.Supp.3d 358, 370 (D. Mass. 2016) (collecting cases). It was therefore permissible for the magistrate judge to authorize affixing a tracking device—i.e., the NIT code—to the defendants' computers once they were present in the district. Courts that have held that the magistrate judge violated Rule 41(b) have reasoned that the government's defense of the magistrate judge's authority stretches the Rule. See, e.g., United States v. Hammond, ––– F.Supp.3d ––––, ––––, 2016 WL 7157762, at *4 (N.D. Cal. Dec. 8, 2016) (`[Defendant's] computer is a physical object that at all times remained in his home in the Northern District of California, and the download, too, occurred here and not ‘virtually’ in the Eastern District of Virginia.’).

U.S. v. Perdue, supra.

The judge goes on to explain that the

court agrees with the courts that have concluded that Rule 41(b)(4) does not extend to the NIT Warrant. Although caselaw suggests that the court is to construe Rule 41broadly, see United States v. N.Y. Tel. Co., 434 U.S. 159, 169 (1977) (holding that Rule 41(b) `is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause’), it cannot render it meaningless. As one court has explained:

`[i]f the “installation” occurred on the government-controlled computer, located in the Eastern District of Virginia, applying the tracking device exception breaks down, because [defendant] never controlled the government-controlled computer, unlike a car with a tracking device leaving a particular district. If the installation occurred on [defendant's] computer, applying the tracking device exception again fails, because [defendant's] computer was never physically located within the Eastern District of Virginia.’

United States v. Michaud, 2016 WL 337263, at *6 (W.D. Wash. Jan. 28, 2016). Accordingly, the court holds that the NIT Warrant exceeded the magistrate judge's authority under Rule 41(b) by authorizing the search of a computer in Texas.

U.S. v. Perdue, supra.

The judge then took up the issue of whether, since the magistrate exceeded his/her authority by authorizing the search, the evidence should be suppressed. U.S. v. Perdue, supra. He began his analysis of this issue by explaining that the

exclusionary rule precludes the government from relying on illegally-seized evidence. United States v. Houltin, 566 F.2d 1027, 1030 (5th Cir. 1978). `The purpose of the exclusionary rule is to deter unlawful police conduct.’ United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006). This purpose will not be served, and thus the rule is inapplicable, where evidence is obtained in `objectively reasonable good-faith reliance upon a search warrant.’ Id. (citations and internal quotation marks omitted). `Under the good-faith exception, evidence obtained during the execution of a warrant later determined to be deficient is admissible nonetheless, so long as the executing officers' reliance on the warrant was objectively reasonable and in good faith.’ United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003) (citing United States v. Leon, 468 U.S. 897, 921–25 (1984)). The good-faith exception cannot apply if `the issuing magistrate/judge was misled by information in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth[.]’ Id. at 399 (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992) (per curiam)). `The “good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.”’ Pope, 467 F.3d at 917 (quoting Leon, 468 U.S. at 922 n.23, 104 S.Ct. 3405).

In the context of a Rule 41 violation,

`where there is no constitutional violation nor prejudice in the sense that the search would likely not have occurred or been as abrasive or intrusive had Rule 41 been followed, suppression ... is not appropriate if the officers concerned acted in the affirmative good faith belief that the warrant was valid and authorized their conduct.’

United States v. Comstock, 805 F.2d 1194, 1207 (5th Cir. 1986). This is because the balance of interests inherent in an exclusionary rule analysis `weighs much less heavily [when] the [Rule 41] violation is neither of constitutional dimensions nor intentional.’ Id. at 1210.

U.S. v. Perdue, supra.

For these and other reasons, the judge denied Perdue’s motion to suppress evidence and his motion to dismiss the indictment against him. U.S. v. Perdue, supra.

The Undocumented Aliens, the State Insurance Database and the Fourth Amendment

This post examines a recent opinion from the U.S. Court of Appeals for the 5th Circuit: United States v. Broca-Martinez, 2017 WL 1521492 (2017).  As Wikipedia explains, this court is one of several U.S. Courts of Appeals which have jurisdiction over federal cases in the territory their Circuit encompasses.

The court, like most courts, begins the opinion by explaining how and why the prosecution arose:

Defendant–Appellant Cecilio Broca-Martinez appeals the district court's denial of his motion to suppress. While on patrol in December 2015, Officer Juan Leal began following Broca-Martinez's vehicle because it matched a description Homeland Security agents had provided the Laredo Police Department (`LPD’). Officer Leal stopped Broca-Martinez after a computer search indicated the vehicle's insurance status was `unconfirmed.’ The stop led to the discovery that Broca-Martinez was in the country illegally and that he was harboring undocumented immigrants at his residence. Broca-Martinez entered a conditional guilty plea to one count of conspiracy to transport undocumented aliens in violation of 8U.S. Code § 1324. On appeal, he contends that there was no reasonable suspicion justifying the initial stop. 

United States v. Broca-Martinez, supra.

For an overview of the vehicle insurance requirements of the U.S. states, check out this Wikipedia entry.

The Court of Appeals goes on to explain, in some detail, how the prosecution arose:

On December 2, 2015, Broca-Martinez was stopped by Officer Leal in Laredo, Texas. That day, Homeland Security Investigations (`HIS’) received a tip that undocumented immigrants were being housed at a residence on Zacatecas Avenue in Laredo. While surveilling the residence, HSI agents saw two men leave and enter a gray Nissan Altima. HSI subsequently notified the LPD to have its officers `be on the lookout’ for the vehicle. After receiving a radio transmission to `be on the lookout’ for this vehicle, Officer Leal saw an Altima that matched the description. He followed the vehicle and entered its license plate number into an `in-vehicle computer’ database designed to return vehicle information such as insurance status.

The computer indicated the insurance status was `unconfirmed.’ Based on his experience using this system, Officer Leal concluded that the vehicle was likely uninsured—a violation of Texas's driver financial responsibility law. Official Leal then stopped the vehicle. After being stopped, Broca-Martinez gave his name to Officer Leal and admitted he was in the United States illegally. While they waited for HSI agents to arrive, Officer Leal issued Broca-Martinez a citation for violating the insurance requirement and driving without a license.

When HSI agents arrived, they interviewed Broca-Martinez. The agents obtained verbal consent from Broca-Martinez to search the Zacatecas Avenue residence, where fourteen undocumented immigrants were being sheltered. On December 22, 2015, Broca-Martinez was indicted by a grand jury on three counts of conspiring to harbor illegal aliens in violation of 8 U.S.C. § 1324. Broca-Martinez filed a motion to suppress evidence on January 25, 2016. He argued there was no reasonable suspicion justifying the initial stop and that the exclusionary rule barred all evidence obtained as a result of the stop.

Officer Leal testified to the following at a hearing on the motion to suppress: At the time of the stop, Leal knew the radio-transmission instruction involved a Homeland Security investigation but was unaware of any details. Upon seeing a vehicle that matched the given description, he ran the `license plates through what is called the NCIC/TCIC system, which gives a return on the vehicle, make, model, [and] year’ as well as “a VIN number” and “a confirmation to see if the vehicle is insured.’ Officer Leal has in the past `performed multiple traffic stops for vehicles not having insurance’ and was familiar with the Texas law requiring drivers to have liability insurance. Leal did not stop the vehicle because of Broca-Martinez's undocumented status—a fact he did not know—but because he believed Broca-Martinez was uninsured. He explained that when he types a license plate number into the NCIC/TCIC system, it will either report `insurance confirmed’ or `unconfirmed,’ and after getting a response he knows, `with the knowledge and experience of working,’ whether the vehicle is uninsured.

United States v. Broca-Martinez, supra.

The Court of Appeals goes on to explain that

During the stop, Officer Leal did not ask for proof of insurance. He stated that he `already knew that the vehicle wasn't insured’ based on the `unconfirmed’ status generated by the computer. However, the district court questioned why Officer Leal did not seek to confirm the computer's report, asking specifically whether `reports are sometimes inaccurate.’ Leal responded: `For the most part, no.’ Later, Broca-Martinez's attorney pressed Officer Leal on the `unconfirmed’ status:

`Q: Officer Leal, you said that the information you got on the insurance is that it was unconfirmed?

A: Yes.

Q: So, in other words, he could have or not have insurance, correct?

A: No.

Q: It's unconfirmed?

A: Yes.’

The district court denied Broca-Martinez's motion to suppress. Broca-Martinez entered a conditional plea to one count of conspiracy to transport undocumented aliens in violation of 8 U.S. Code § 1324. Broca-Martinez preserved his right to appeal the district court's denial of his motion to suppress. On June 8, 2016, Broca-Martinez was sentenced to twelve months and one day imprisonment. He timely appealed.

United States v. Broca-Martinez, supra.

The Court of Appeals then takes up its analysis of the issues in the case, explaining that

`[i]n reviewing a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo.’ United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). `Whether an officer had reasonable suspicion to support a stop is treated as a question of law.’ United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015). Nonetheless, this Court views the evidence `in the light most favorable to the prevailing party in the district court—in this case, the Government.’ Id. The district court had jurisdiction under 18 U.S. Code § 3231, and this Court has appellate jurisdiction pursuant to 28 U.S. Code § 1291.

United States v. Broca-Martinez, supra.

The Court of Appeals then began its analysis of the issues, and the arguments, in the case:

Under Texas law, `[a] person may not operate a motor vehicle in [Texas] unless financial responsibility is established for that vehicle through’ either a `motor vehicle liability insurance policy’ or other means such a surety bond, a deposit, or self-insurance. Tex. Transp. Code Ann. § 601.051. Violating this statute is a misdemeanor. Id. § 601.191. At issue in this case is whether Officer Leal had reasonable suspicion that Broca-Martinez was in violation of this statute.

United States v. Broca-Martinez, supra. In a footnote appended to the last sentence above, the court explains that

Broca-Martinez acknowledges that the only reason for the stop was a traffic violation and that Officer Leal `had no information regarding any suspicion of any criminal activity by the passengers’ in the vehicle.

United States v. Broca-Martinez, supra.

The opinion goes on to take up the Fourth Amendment issue, explaining that the amendment

protects individuals against warrantless searches and seizures. U.S. Const. amend. IV. It `applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here.’ United States v. Cortez, 449 U.S. 411, 417(1981). When a vehicle is stopped, the officer `must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ Id. at 417–18, 101 S.Ct. 690. This `reasonable suspicion’ exists `when the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the search and seizure. Lopez-Moreno, 420 F.3d at 430. And while the officer must have more than a `mere hunch’ that the person stopped is engaged in illegal activity, `reasonable suspicion need not rise to the level of probable cause.’ Id. Indeed, it requires only `”some minimal level of objective justification” for making the stop.” Castillo, 804 F.3d at 367 (quoting United States v. Sokolow, 490 U.S. 1,7 (1989)).

United States v. Broca-Martinez, supra.

The Court of Appeals then took up the issue in controversy in this case, explaining that

[w]e have not yet addressed whether a state computer database indication of insurance status may establish reasonable suspicion. However, several other circuits have found that such information may give rise to reasonable suspicion as long as there is either some evidence suggesting the database is reliable or at least an absence of evidence that it is unreliable.

United States v. Broca-Martinez, supra.

The opinion then goes on to explain that

[i]n United States v. Cortez-Galaviz, 495 F.3d 1203 (10th Cir. 2007), the Tenth Circuit encountered similar facts and affirmed the denial of a motion to suppress. Id. at 1204. In that case, a Drug Enforcement Agency agent stopped a vehicle after inputting its license plate information into a computer database and receiving the following notification: `INSURED/Not Found: AS OF/9/30/2005 Recommend request proof of insurance.’ Id. The court found this information was `particularized and objective’ and `suggestive of a traffic violation.’ Id. at 1206. While acknowledging that the message `did not as definitively indicate criminal activity as a `no’ response,’ it also did not `equate to an `exculpatory “yes,”’ and the suggestive ambiguity of the particularized and objective information [the officer] had at hand justified his decision to warrant a brief traffic stop. Id. Like Broca-Martinez, the defendant in Cortez-Galaviz argued that the stop was not justified because there were alternative means of complying with the state insurance law. Id. at 1207. But the Tenth Circuit found that argument `overstate[d] the requirements for reasonable suspicion under the Fourth Amendment.’ Id; see also United States v. Miranda-Sotolongo, 827 F.3d 663, 669 (7th Cir. 2016) (`Reasonable suspicion ... does not require the officer to rule out all innocent explanations of what he sees.’). Additionally, although the defendant in Cortez-Galaviz challenged the reliability of the computer database, the court found limited evidence of unreliability, especially when viewed in the light most favorable to the government. 495 F.3d at 1208.

United States v. Broca-Martinez, supra.

And it went on to explain that

[b]y contrast, the Tenth Circuit reached a different conclusion in United States v. Esquivel-Rios, 725 F.3d 1231 (10th Cir. 2013), where there was evidence the database was unreliable. In that case, a Colorado state trooper stopped a vehicle after inquiring into the validity of its temporary registration tag. Id. at 1234. Even though the tag `looked genuine,’ the trooper `called in the tag number to a dispatcher who soon replied “that's a negatory on record, not returning.”’ Id. The trooper stopped the vehicle solely based on that information and found illegal drugs after obtaining consent for a search. Id. at 1234–35. On appeal, the Tenth Circuit found this case distinguishable from Cortez-Galaviz and other cases in which `the record suggested no reason to worry about the database's reliability.’ Id. at 1235. Here, the dispatcher provided critical testimony that `Colorado temp tags usually don't return,’ which the court regarded as `a piece of evidence our cases haven't confronted before: evidence admitted by a district court suggesting that the database on which the officer relied to justify his stop might bear a real problem.’ Id. (emphasis in original).

Cases from the Seventh, Sixth, and Eighth Circuits confronting similar fact patterns are generally consistent with the reasoning in Cortez-Galaviz and Esquivel-Rios. See Miranda-Sotolongo, 827 F.3d at 671 (finding reasonable suspicion established when the database showed no vehicle registration record, `at least in the absence of evidence that [the officer] could not reasonably rely on the absence of a registration record to support an investigative stop’); United States v. Sandridge, 385 F.3d 1032, 1036 (6th Cir. 2004) (concluding there was reasonable suspicion for a stop when license plate check three weeks prior had indicated the driver was driving without a valid license); United States v. Stephens, 350 F.3d 778, 779 (8th Cir. 2003) (holding that when database check showed license plates were `not on file,’ there was reasonable suspicion to stop the vehicle).

United States v. Broca-Martinez, supra.

The court went on to address another issue, explaining that

Broca-Martinez relies only on state court cases to support his argument. See Gonzalez-Gilando v. State, 306 S.W.3d 893, 896–97 (Tex. App.—Amarillo 2010, pet. ref'd) (finding database information insufficient to establish reasonable suspicion because there was no `evidence developing the source of the information comprising the database, explaining what was meant when insurance information was unavailable, . . . [or] illustrating the accuracy of the database’); State v. Daniel, 446 S.W.3d 809, 815 (Tex. App.—San Antonio 2014, no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—Amarillo 2010, pet. ref'd). But although states may `impos[e] more stringent constraints on police conduct than does the Federal Constitution,’ this does not dictate our Fourth Amendment analysis. California v. Greenwood, 486 U.S. 35, 43 (1988). Even so, Broca-Martinez's case is distinguishable from Gonzalez-Gilando; here, there was testimony regarding Officer Leal's experience with the database and suggesting the system was reliable.

United States v. Broca-Martinez, supra. As this Wikipedia entry on precedent in U.S. and other common law countries explains, the decisions of a particular court are usually binding on that court, and may serve as persuasive precedent with regard to other courts. So, it is usual for litigators before a particular court to rely on that court’s precedent, as much as possible.

The Court of Appeals then began the process of enunciating its “holding” – its decision in the case:

[w]e agree with the other circuits that have confronted this question. A state computer database indication of insurance status may establish reasonable suspicion when the officer is familiar with the database and the system itself is reliable. If that is the case, a seemingly inconclusive report such as “unconfirmed” will be a specific and articulable fact that supports a traffic stop. Lopez-Moreno, 420 F.3d at 430. Viewed in the light most favorable to the government, Officer Leal's testimony provides sufficient support for the reliability of the database. Officer Leal explained the process for inputting license plate information, described how records in the database are kept, and noted that he was familiar with these records. He explained that `with the knowledge and experience of working,’ he knows the vehicle is uninsured when an `unconfirmed’ status appears because the computer system will either return an `insurance confirmed’ or `unconfirmed’ response. When Broca-Martinez's attorney questioned the system's reliability, Officer Leal confirmed that it was usually accurate. (`Q: So, in other words, he could have or not have insurance, correct? A: No.’) (`Q: You asked him for his insurance? A: Not that I recall. I already knew that the vehicle wasn't insured.’) (`Q: I mean reports are sometimes inaccurate, right? A: For the most part, no.’).

United States v. Broca-Martinez, supra.

It went on to point out that

[e]ven if Officer Leal was not positive Broca-Martinez was uninsured, he cleared the bar for reasonable suspicion. An officer does not have to be certain a violation has recurred. See Castillo, 804 F.3d at 366. `This would raise the standard for reasonable suspicion far above probable cause or even a preponderance of the evidence, in contravention of the Supreme Court's instructions.’ Id.

United States v. Broca-Martinez, supra.

The court therefore held that “[f]or the foregoing reasons, we AFFIRM the denial of Broca-Martinez's motion to suppress and AFFIRM Broca-Martinez's conviction and sentence.”

United States v. Broca-Martinez, supra.