14 December 2008

What Crime in Faking Probable Cause?

Last Monday I started the week with a post about the people who set up the fake grow house to ensnare the police. In it I commented about the police taking pictures of the shirt and poster left in the house telling them that they were being scammed: "evidence for whatever Texas' statute they will eventually prosecute these people under." Today, a commenter asks a valid question:
Ok, when is it a crime to "create probable cause"?
Okay, I'll give it a shot. First of all, let me give the normal cautionary admonishments:

I AM NOT A TEXAS ATTORNEY. I have not read case law from Texas and have never appeared before a Texas court. Therefore, this is a lay opinion, not a legal opinion. Citing me to a Texas judge would probably carry about as much weight as citing Bob, your mechanic, and maybe less, 'cuz Bob lives in Texas and votes for your judge when elections roll around.

Now that the preliminaries are out of the way, looking at the Texas statutes, I see two possible charges. The first is
Sec. 37.08. FALSE REPORT TO PEACE OFFICER OR LAW ENFORCEMENT EMPLOYEE. (a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1) a peace officer conducting the investigation; or
(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.
(c) An offense under this section is a Class B misdemeanor.
This would apply to the anonymous phone call which was made to start the ball rolling.

The second is
Sec. 37.09. TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE. (a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
. . .
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.
. . .
(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree.
This would apply to the entire setup.

Obviously, the false report is the stronger charge. It requires a false statement material to a criminal investigation, but does not limit when the investigation may begin. If the investigation begins because of the false statement it's material (BTW, this is the way that Virginia's Filing a False Report statute works as well).

On the other hand, the fabricating physical evidence evidence charge requires reading some case law to clarify. It would depend upon how the courts interpret "pending investigation." In particular, in a time when there are Drug Investigation Units everywhere, is there a continuos, ongoing investigation of drug growth, distribution and use? If so, there's a felony. In fact, this statute might also apply because the proclaimed reason for the falsified evidence was to influence the result of another drug trial. Of course, the catch is that the other drug trial is over. Even if either of those two theories do not apply, there could be a charge of attempt to fabricate evidence:
Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
. . .
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
Heck, according to subsection (c) you could charge the attempt right along with the offense itself.

Those are the possibilities that pop out at me. Someone with experience in Texas crimlaw could probably think of more (or maybe tell me that I'm full of malarky). If anyone's out there with a more nuanced understanding of Texas law please feel free to fill in the gaps.


Anonymous said...

Nice answer. Thanks! It appears to me that the "reverse sting" activities were not illegal themselves (i.e., no drugs were actually involved). So, is it illegal to make it appear *I* may have committed a crime to expose the crimes of another? Maybe the laws you cited were meant to keep people from "framing" others so those others are not falsely arrested or convicted? Wouldn't this be similar to where the police pretend to sell stolen property to catch a potential thief?

Anonymous said...

There would be no attempt to commit the crime of growing marijuana because the Kopbusters were only attempting to grow Christmas trees?

Anonymous said...

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 (http://www.statutes.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fSOTW%2fASUPUBLIC.dbo.vwSOTW%2fPE%2fS%2fPE.37.62216.53520%40SOTW&QueryText=TAMPERING%3cOR%3eWITH%3cOR%3eFABRICATING%3cOR%3ePHYSICAL%3cOR%3eEVIDENCE&HighlightType=1), 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.

Anonymous said...

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.

Ken Lammers said...

Answers to all four comments published as posts on 17 December 2008.