17 December 2008

Even More On Fake Probable Cause:
Challenging My Statutory Reading

Previous Posts:
Police Faked With False Grow House
What Crime in Faking Probable Cause?
More on the Faking Probable Cause in Texas

Comments:
(3) How disingenuous of you, you cherry-pick a block of text from "section 37.9" that APPEARS to give credence to your bizarro world position that a non-crime could be prosecuted. But if one goes to that section of the law, one finds that the section you quote actually applies to a crime actually having first been commited. Your choice to selectively misread the law to fit your fantasy of putting someone in jail because cops are stupid and easily mislead to a non-crime aside, your selective reading actually says nothing like you want it to say. What it is actually about is changing evidence that would prove a crime had been committed to attempt to cover the actual crime. With no superimposed actual crime, simply constructing a situation that some idiot cops misread as criminal activity is not, by itself, a crime.

(4) Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense

Another intentional misread to support your fantasy. No intent to commit a crime was involved, so no offense occured. The rest of you intentional misleading "read" is moot.
Ooh! Cool, a challenge!

Did I cherry pick a block of text from 37.09? Well, I picked the block of text which I thought applicable. I even discussed how I wasn't sure how the statute applied because of some of the language under 37.09(a). However, one thing I'm absolutely sure of is that the statute does not require an offense to have been committed. How do I know this? Primarily because I know Texas has applied this statute to cases wherein there has been no offense committed.

In Waldrop v. the State, 2007 (no. 06-06-00073-CR, Court of Appeals of Texas, Texarkana), a woman was convicted of feeding her children a story about their father sexually abusing them and then having them repeat the story while she recorded them. The children told the police what their mother made them do and the story was proven false. No underlying offense here. Father didn't do anything. Mom's crime was the making and presenting of the false evidence. There was no crime until she did this and violated 37.09.

This case also seems to settle my question as to whether this statute can be applied if it is done prior to an investigation. The mother created the evidence first and then presented it to start the investigation. Although, the case does limit its discussion to "presentment" and I guess once you've contacted the officers you've started the investigation so presenting them with the tape happened during the investigation.

In Delapaz v. the State, 2007 (no. 05-05-00660-CR, Court of Appeals of Texas, Dallas), a police officer was convicted under 37.09 because he made false statements on affidavits to get search warrants. Again, there is no commission of a crime prior to the officer making and presenting the false affidavits.

(Sorry I couldn't link directly to the cases; I can't find them except through a pay service)

So, it's clear that no crime need be committed. Whence comes the confusion? Well, as best I can figure, it's based in 37.09(d):
(d) A person commits an offense if the person:

(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense
The problem is that this has no bearing on 37.09(a) whatsoever. Admittedly, I had to read it a time or two before I caught the difference, but (a) and (d) lay out entirely different crimes. 37.09(d) happens without an investigation or hearing; it makes illegal the mere act of destroying etc. any evidence at any time prior to an investigation. 37.09(a) criminalizes acts that take place once the authorities have become involved. As Waldrop demonstrates, it also has the purpose of punishing those who create evidence out of whole cloth when no offense has occurred.

As for the possibility of an attempt charge, if the intent was to present physical evidence of a marijuana grow house to the police, knowing it to be a false marijuana grow house, with the intent to affect the police investigation or - as proclaimed - to affect a different trial, then the attempt is there. In fact, the attempt may be the stronger case because the "kopbusters" claimed it was trying to affect another trial's result. That case is probably closed so it cannot be affected (making the charge actual unconvictable). However, that does not mean they didn't attempt it.

5 comments:

SFLawyer said...

I think the more obvious weakness is "knowing that an investigation or official proceeding is pending or in progress."

Lumping in the ongoing war on drugs, or some sort of local drug task force or something (as you intimated in the other post) as one constant "investigation" to make section a) actionable is questionable. Your case law doesn't support this. I know neither you nor I are Texas lawyers, but just based on the cases you cited, in both instances there was an investigation underway of an alleged crime, even if no crime had actually occured. (Either sexual abuse or multiple crimes needing search warrants).

Here, there was no current investigation of a specific crime at the time the false "thing," whether the false tip or the innocuous grow room, occurred.

If I was in Court arguing this, (with no time to prep and off the top of my head, like right now) I would throw in the argument that section a, in this instance, would operate to make section d meaningless. The statute creates a distinction between pre and post investigation; if police activity generally related to the type of crime can substitute for investigating the specific crime (like having an investigative drug task force, not investigating this grow house specifically) then almost every false act can be prosecuted under a) and not d) so long as there was some sort of police intent to actively investigate that "type" of crime. Such a broad stroke seems kind of absurd.

Anonymous said...

"In Waldrop v. the State, 2007 (no. 06-06-00073-CR, Court of Appeals of Texas, Texarkana), a woman was convicted of feeding her children a story about their father sexually abusing them and then having them repeat the story while she recorded them. The children told the police what their mother made them do and the story was proven false. No underlying offense here. Father didn't do anything. Mom's crime was the making and presenting of the false evidence. There was no crime until she did this and violated 37.09."


There IS an intent to break the law. The mother is trying to create a false arrest.


"In Delapaz v. the State, 2007 (no. 05-05-00660-CR, Court of Appeals of Texas, Dallas), a police officer was convicted under 37.09 because he made false statements on affidavits to get search warrants. Again, there is no commission of a crime prior to the officer making and presenting the false affidavits."

There IS a criminal offense at work here. The officer was trying to create a false arrest.

In both cases, the false evidence was created in service to an overlying criminal act - creating a false arrest.

Your fantasy still fails the test.

Ken Lammers said...

SFLawyer - Yes, I think your reading of the statute is correct and concede this is the point I would expect to be the Defense's strongest argument in court.

Ken Lammers said...

Anon - You are absolutely right about what their intents are, however, there is no actual criminal act committed until they make and present the false evidence.

Mhoram said...

But it isn't false evidence in this case. The evidence they set up is in fact real evidence - it just isn't evidence of a crime.

Take an analogous situation: Police are driving around and they see a woman sitting the porch of a house and she has a busted lip and a black eye. Do they have probable cause to arrest the guy sitting next to her? Her injuries are evidence of nothing more than their own existence - they certainly are not evidence that a crime has been committed.

To make even more like the issue at hand, suppose the injuries were not even real - they had been applied with makeup. Would you really want to charge her with false report of a crime? If so, would Virginia juries actually convict someone of that?