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The Washington Post reported that "A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent." "Agents with the Federal Bureau of Investigation and Immigration and Customs Enforcement have turned state driver’s license databases into a facial-recognition gold mine, scanning through millions of Americans’ photos without their knowledge or consent, newly released documents show." Does this data-mining by law enforcement amount to a search under the Fourth Amendment? If so, do citizens have an expectation of privacy when it comes to Facial Recognition Searches? 

A recent ABA commentary discssued the constitutional implications of Facial Recognition Technology. The Fourth Amendment prohibits an unlawful search of a place where a person has a reasonable expectation of privacy. In Katz v. United States, the Supreme Court announced a two-part test to determine whether a person has a reasonable expectation of privacy, which assesses (1) whether the person exhibited an actual, subjective expectation of privacy and (2) whether that expectation is one that society recognizes as reasonable. (389 U.S. 347 (1967).) The Katz test provides a framework for analyzing Fourth Amendment issues.

On June 22, 2018, the US Supreme Court decided Carpenter v. United States. (138 S. Ct. 2206 (2018).) In Carpenter, the Court ruled on whether a person’s expectation of privacy covered the records of historical cell phone data (historical CSLI), which could reveal the person’s physical location or movements. Relying on KatzCarpenter held that a person’s Fourth Amendment rights were violated when the government received historical CSLI from cell phone companies without first obtaining a search warrant. 

In light of Katz and Carpenter, Factial Recognition Technology (FRT) that is used on a limited, short-term basis with strictly public systems should not implicate the Fourth Amendment because an individual’s face is open to the public. (Katz, 389 U.S. at 351–52; United States v. Dionisio, 410 U.S. 1, 14 (1973). See, e.g., De Lillo, supra, at 282.) Nevertheless, legal arguments against the warrantless use of FRT can be made on a variety of issues, including that the technology can be used to track an individual’s movement over an extended period of time, First Amendment rights may be chilled, and the technology is not available for public use and may implicate the Fourth Amendment.

As for FRT, Carpenter suggests that an individual’s public movements captured by FRT in an isolated incident do not implicate the Fourth Amendment. However, the same individual’s public movements viewed using FRT over an extended timeframe could reveal intimate details about the individual’s personal life that may be found to amount to a Fourth Amendment search, even though everything took place in public. 

In addition to Fourth Amendment concern, the Washington Post also noted the possible danger of misidentification by law enforcement agents who rely on FRT. "The FBI said its system is 86 percent accurate at finding the right person if a search is able to generate a list of 50 possible matches, according to the GAO. But the FBI has not tested its system’s accuracy under conditions that are closer to normal, such as when a facial search returns only a few possible matches." But what about the dangers of wrongful identification and arrest of suspects? Civil rights advocates have said the inaccuracies of facial recognition pose a heightened danger of misidentification and false arrests. The software’s precision is highly dependent on a number of factors, including the lighting of a subject’s face and the quality of the image, and research has shown that the technology performs less accurately on people with darker skin."

 

The Washington Post reported that "A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent." "Agents with the Federal Bureau of Investigation and Immigration and Customs Enforcement have turned state driver’s license databases into a facial-recognition gold mine, scanning through millions of Americans’ photos without their knowledge or consent, newly released documents show." Does this data-mining by law enforcement amount to a search under the Fourth Amendment? If so, do citizens have an expectation of privacy when it comes to Facial Recognition Searches? 

A recent ABA commentary discssued the constitutional implications of Facial Recognition Technology. The Fourth Amendment prohibits an unlawful search of a place where a person has a reasonable expectation of privacy. In Katz v. United States, the Supreme Court announced a two-part test to determine whether a person has a reasonable expectation of privacy, which assesses (1) whether the person exhibited an actual, subjective expectation of privacy and (2) whether that expectation is one that society recognizes as reasonable. (389 U.S. 347 (1967).) The Katz test provides a framework for analyzing Fourth Amendment issues.

On June 22, 2018, the US Supreme Court decided Carpenter v. United States. (138 S. Ct. 2206 (2018).) In Carpenter, the Court ruled on whether a person’s expectation of privacy covered the records of historical cell phone data (historical CSLI), which could reveal the person’s physical location or movements. Relying on KatzCarpenter held that a person’s Fourth Amendment rights were violated when the government received historical CSLI from cell phone companies without first obtaining a search warrant. 

In light of Katz and Carpenter, Factial Recognition Technology (FRT) that is used on a limited, short-term basis with strictly public systems should not implicate the Fourth Amendment because an individual’s face is open to the public. (Katz, 389 U.S. at 351–52; United States v. Dionisio, 410 U.S. 1, 14 (1973). See, e.g., De Lillo, supra, at 282.) Nevertheless, legal arguments against the warrantless use of FRT can be made on a variety of issues, including that the technology can be used to track an individual’s movement over an extended period of time, First Amendment rights may be chilled, and the technology is not available for public use and may implicate the Fourth Amendment.

As for FRT, Carpenter suggests that an individual’s public movements captured by FRT in an isolated incident do not implicate the Fourth Amendment. However, the same individual’s public movements viewed using FRT over an extended timeframe could reveal intimate details about the individual’s personal life that may be found to amount to a Fourth Amendment search, even though everything took place in public. 

In addition to Fourth Amendment concern, the Washington Post also noted the possible danger of misidentification by law enforcement agents who rely on FRT. "The FBI said its system is 86 percent accurate at finding the right person if a search is able to generate a list of 50 possible matches, according to the GAO. But the FBI has not tested its system’s accuracy under conditions that are closer to normal, such as when a facial search returns only a few possible matches." But what about the dangers of wrongful identification and arrest of suspects? Civil rights advocates have said the inaccuracies of facial recognition pose a heightened danger of misidentification and false arrests. The software’s precision is highly dependent on a number of factors, including the lighting of a subject’s face and the quality of the image, and research has shown that the technology performs less accurately on people with darker skin."

 

The Texas Department of State Health Services has added a Hemp Program linkot its website, but the link offers little guidenace for CBD consumers and retailers. Below is a summary. 

What is a consumable hemp product?

A consumable hemp product is a food, drug, device, or cosmetic that contains industrial hemp or hemp-derived cannabinoids, including cannabidiol (CBD). These products may not contain more than 0.3 percent concentration of tetrahydrocannabinol (THC). 

What is DSHS required to do under HB 1325?

When the submitted TDA state plan is approved by USDA, HB 1325 requires DSHS to: 

  • Establish a manufacturing licensure program for consumable hemp products. 
  • Create a registration process for retailers selling consumable hemp products containing CBD. 
  • Work with DPS on random testing for consumable hemp products containing CBD sold at retail. Random testing will not occur until the retail registration process is established after the TDA state plan approval. 

Implementation of HB 1325 will involve the development of rules, which will include a public input process. While DSHS rules development will begin before the TDA plan is approved, final rules cannot be completed until after the TDA state plan approval. Therefore, DSHS may only begin issuing licenses and accepting registrations after TDA's plan is approved by USDA and DSHS adopts rules consistent with the TDA approved plan. The approved plan may impact the implementation of HB 1325, including rules development.

What is DSHS’ role?

DSHS has oversight of food, drug, cosmetics and dietary supplement manufacturers, distributors and retailers, including those that may use or market hemp or cannabidiol (CBD) as an ingredient in those products. Local jurisdictions may also regulate retail sales of food, drugs, cosmetics and dietary supplements, but may not prohibit the sale of consumable hemp products.

DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement. Neither does DSHS administer the  Texas Compassionate Use Act

Can I manufacture consumable hemp products?

The manufacturing license for consumable hemp will not be available until the USDA approves Texas’ hemp plan. That plan is under development by TDA. State licensing rules and requirements relating to the manufacture of consumable hemp products may only be proposed after the approval of the plan by the USDA. 

Until the plan is approved and rules are in place, current law applies. Only ingredients on the FDA’s Generally Regarded As Safe (GRAS) list or otherwise federally approved may be used in foods, drugs, cosmetics and dietary supplements. There are currently three hemp-derived products on the GRAS list; hulled hemp seeds, hemp seed protein and hemp seed oil. Manufacturers of these products are governed by Health and Safety Code Chapter 431. Manufacturers interested in producing consumable hemp products not containing CBD may currently apply for a DSHS food manufacturer license.

Can I sell consumable hemp products at retail now?

Yes, Section 11 of HB 1325 allows for existing retailers to possess, transport or sell consumable hemp products that become part of the retailers’ inventory prior to the effective date of DSHS rules resulting from HB 1325. The retailer must be licensed as currently required by law. Retailers selling consumable hemp products must ensure the product is safe for consumption by being free of heavy metals, pesticides, harmful microorganisms or residual solvents. Additionally, consumable hemp products sold must not contain more than 0.3 percent THC. 

During routine inspection or complaint investigations, DSHS, within its statutory authority, may detain products, including dietary supplements, that are labeled as or contain hemp, including CBD, and that make unproven health claims, such as preventing, diagnosing, treating and/or curing a health or medical condition. Products that are being manufactured or handled in a manner that creates a health hazard for people who may use it may also be detained. 

Note: HB 1325 contains limitations regarding retail sales of out-of-state consumable hemp products. The products must be processed or manufactured in another state in compliance with:

  1. that state or jurisdiction’s plan approved by the USDA;
  2. in the absence of a state submitted plan, a plan established by the USDA; or,
  3. the laws of that state or jurisdiction if the products are tested in compliance with, or similar to those set out in Section 443.151 of HB 1325.

Upon approval of the Texas state hemp plan by USDA, DSHS will establish a process to register retailers selling consumable hemp products containing CBD. At that time, existing retailers selling consumable hemp products containing CBD and new retailers wishing to sell these products will be required to register with DSHS.

What is the federal status of CBD?

Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics or dietary supplements. 

Because the FDA also has authority to oversee food, cosmetics and dietary supplements, the FDA may take actions on its own relating to the ingredients in foods, drugs, cosmetics and dietary supplements.

What should a consumer know?

CBD is currently available as an FDA-approved prescription drug. DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement, and HB 1325 will not change those parameters. Questions regarding medicinal use of consumable hemp products (including CBD) should be directed to a physician.


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In Rehaif v. United States, the Supreme Court held 6-2 that in order to convict a defendant under 922(g), the government must prove beyond a reasonabnle doubt that the defendant knew he possessed a firearm and also that he knew he had belonged to a certian class of prohibited persons when he possessed it.” 18 U.S.C. § 922(g) makes it a federal offense for certian individuals to ship, transport, possess or receive any firearm or ammunition with the required interstate commerce nexus. Those prohibited classes of persons are: convicted felons (§ 922(g)(1)); fugitives from justice (§ 922(g)(2)); unlawful users or addicts of controlled substances (§ 922(g)(3)); mental defectives (§ 922(g)(4)); illegal aliens (§  922(g)(5)); dishonorably discharged servicemen (§ 922(g)(6)); and persons who have renounced their U.S. citizenship (§ 922(g)(7)). The penalty provision for a violation of § 922(g) appears at 18 U.S.C. § 924(a)(2), which provides that a person who "knowingly" violates § 922(g) "shall be fined as provided in this title, imprisoned not more than 10 years, or both."

Although 922(g) itself is silent as to the “knowingly” element, it is addresssed in §  924(a)(2), which provides: “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”The term “knowingly” in 924(a)(2) modifies the verb “violates” and its direct object, here, 922(g).  The non-jurisdictional elements of 922(g) are status, possession, and firearm or ammunition, and knowingly applies to each one.

The Court stressed that in felon-in-possession cases, Congress could not have intended to impose criminal liability on “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.” The Rehaif case involved 922(g)(5)(A), where the status is being an “alien” who is “illegally or unlawfully in the United States.”  The Court rejected the government’s argument that this is a question of law, not fact, and ignorance of the law is no excuse, because that maxim applies when the defendant claims to be unaware of a statute proscribing his conduct, not when a defendant has a mistaken impression concerning the legal effect of some collateral matter that results in his musunderstanding the significance of his conduct.  "The defendant’s status as an alien 'illegally or unlawfully in the United States' refers to a legal matter, but this legal matter is what the commenta­tors refer to as a 'collateral' question of law. A defendant who does not know that he is an alien 'illegally or unlaw­fully in the United States' does not have the guilty state of mind that the statute’s language and purposes require."

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In Texas, self-defense is an "affirmartive defense. That means that in order to be found not guilty, the defendant bears the burden of proving to the jury that the "person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a). 

In ESCOBEDO v. STATE, No. 04-18-00712-CR, 2019 WL 2518165, at *2 (Tex. App. June 19, 2019), Escobedo appealed the jury's rejection of her self-defense claim. Escobedo asserts the evidence established the alleged victim had her trapped between the car door and the frame and attempted to drive away. Accordingly, Escobedo contends the evidence establishes she made “a proper and correct split second decision to use minimal force against Ms. Sciaraffa” in order to “free herself.”

[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a). In this case, the jury was instructed that the State was required to prove Escobedo's conduct was not justified by self-defense by proving beyond a reasonable doubt that: (1) Escobedo did not believe her conduct was immediately necessary to protect herself against Sciaraffa's use or attempted use of unlawful force; or (2) Escobedo's belief was not reasonable. The appeal court held that after reviewing all of the evidence in the light most favorable to the prosecution, the jury rationally could have rejected Escobedo's self-defense claim.
 

 

On Monday, June 10, 2019, Governor Greg Abbott signed into law HB 1325 relating to the production and regulation of hemp. The Act immediately went into effect after Governor Abbott signed it because it received at least two-thirds “yes” votes in both the Texas State House and the Texas State Senate. Now that hemp is “legal” in Texas, many unanswered questions remain as to how the Act will be implemented. 

Below is a short summary of some critical sections of HB 1325. This short summary is by no means an exhaustive list of all the requirements set forth under the Act. It is therefore highly recommended that you either carefully read the Act or seek out the advice of a qualified lawyer to determine whether you are acting in compliance with the Texas’ new hemp law.  Here are some of the key provisions: 

  1. HB 1325 defines “hemp” asCannabis sativa L.(any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol  (THC) concentration of not more than 0.3 percent on a dry weight basis).
  1. The Act amended Schedules I through V of Sections 481.002(5) and (26) of the Texas Health and Safety Code to remove hemp from the list of controlled substances. Hemp that falls within the definition set forth in the Act is therefore no longer classified as controlled substance and punishable as a felony offense under Texas law. 
  1. To accomplish this declassification, Texas also amended the definition of “marihuana,” under § 481.002 (26), to exclude “hemp, as that term is defined by Section 121.001, Agriculture Code.” This means that hemp, which is sourced in compliance with the Act and has a THC level of no more than 0.3, is no longer subject to criminal prosecution in Texas. 
  1. As discussed below, that does not mean that you can now run out and buy hemp seeds and start planting them in the ground. There is an implementation process that must begin before hemp can legally be planted and cultivated in Texas.
  1. 443.204(3) of the Act prohibits smokable hemp products from being processed or manufactured. Sec. 443.001(11) defines “smoking” as “burning or igniting a substance and inhaling the smoke or heating a substance and inhaling the resulting vapor or aerosol. Although the Act itself does not address the retail sale of such products, this section suggests that Texas may later impose regulations under the catch-all regulation provisions of Sec. 121.004 that prohibit the sale or possession of smokable hemp in in either liquid or herb form.Stay tuned for more on this.
  1. Now that the Act is law, the Texas Department of Agriculture has 90 days from its effective date to submit a plan for hemp cultivation and processing to the USDA for approval. Once that plan is approved, the Texas Department of Agriculture has 30 days (or “as soon as practicable” thereafter) to “fully implement the plan”. That means the Texas Department of Agriculture must “as soon as practicable” implement procedures to guide Texas farmers on how to obtain a license to grow hemp. A license MUST be obtained to legally grow hemp in Texas. Until such a plan and licensing procedure is approved and implemented by the Texas Department of Agriculture, hemp cannot be cultivated or handled in Texas. Sec. 443.101 states that “[a] person may not process hemp or manufacture a consumable hemp product in this state unless the person holds a license under this subchapter.”
  1. In addition, consumable hemp products containing cannabidiols (i.e., CBD oils), which are sourced in compliance this Act and contain less than 0.3% THC, now appear to be legal in Texas. Whether or not existing consumable hemp products in the marketplace are in compliance with the Act, however, requires a very careful reading of HB 1325. That’s because as noted below, the Act imposes new packaging and labeling requirements on consumable hemp products. 443.2025 states that “[a] person may not sell consumable hemp products containing cannabidiol [CBD] at retail in this state unless the person registers with the department each location owned, operated, or controlled by the person at which those products are sold.”  Sec. 443.205 of the Act lists the packaging and labeling requirements for hemp-derived products. Sec. 443.205(6) requires the label to certify that the hemp-derived product contains a THC concentration of nor more than 0.3. Sec. 443.206 of the Act requires that the sale of out-of-state consumable hemp products must be in compliance with USDA hemp standards and those set forth under Sec. 443.151 of the Act. If there is any doubt as to whether a CBD product is in compliance, it is best to seek out the advice of competent and experienced legal counsel.
  1. In order to avoid arbitrary enforcement of hemp laws across the state, Section 122.002 prohibits any municipality, county, or other political subdivision in the state from enacting or enforcing any rule, ordinance, resolution or other regulation that prohibits the “cultivation, handling, transportation, or sale of hemp as authorized by this chapter.” This will likely protect farmers and landowners from local rules and zoning ordinances aimed at preventing hemp from being grown. It remains to be seen, however, whether this provision will also protect consumable hemp retailers from local regulation. 
  1. The Act also provides some guidance to retailers concerning CBD inventory. Section 11 of the Act notes that “[n]otwithstanding Chapter 443, … a retailer may possess, transport, or sell a consumable hemp product, as defined by Section 443.001, … that becomes part of the retailer’s inventory before rules under Section 443.051 … become effective UNLESS the product: (1) is unsafe for consumption based on the presence or quantity of heavy metals, pesticides, harmful microorganisms, or residual solvents;” or (2) has a THC level of more than 0.3 percent. 
  1. Section 12 of the Act adds that, “[n]otwithstanding Section 443.2025, … a person is not required to register a location to sell a consumable hemp product containing cannabidiol at retail in this state before the 60thday after the date the Department of State Health Services begins issuing registrations.” This provision suggests that there is a 60-day grace period to register a retail location after the Department “begins” issuing registrations. It will of course be the responsibility of the merchant to know when that period “begins” and when that 60-day clock starts ticking. It is currently unclear how the Texas Department of State Health Services and the Texas DPS will regulate and enforce the retail sale of CBD oils and other consumable hemp products. It would therefore be best to consult an attorney who has a working knowledge of the new Texas hemp law and the State’s proposed implementation process in order to avoid possible civil or criminal penalties. 

In closing, the Texas Hemp Act presents exciting opportunities for Texas retailers, consumers and farmers. It is unclear, however, how the Texas Health, DPS and Agriculture Departments will address the rule-making, licensing and compliance sides of the Act. If would like to receive further updates on HB 1325, including its implantation or enforcement, please subscribe to the Texas THC Lawyer Blog. 

 

In a recent case, Tilghman v. State, No. 03-17-00803-CR (June 7, 2019), the appeal court addressed the issue of whether consent obtained by "acquiescence to a claim of lawful authority" by police is sufficennt consent to justify a search by police. The court noted that: 

Consent is a "jealously and carefully drawn" exception to the warrant requirement. Georgia v. Randolph, 547 U.S. 103, 109 (2006). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id. at 548-49; see Carmouche, 10 S.W.3d at 331. Moreover, consent is not voluntarily given when it is "the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). The voluntariness of consent "is a question of fact to be determined from the totality of all the circumstances." Id. at 227. "[I]f under all the circumstances it has appeared that the consent was not given voluntarily-that it was coerced by threats or force, or granted only in submission to a claim of lawful authority-then . . . the consent [is] invalid and the search unreasonable." Id. at 233. "Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given." Carmouche, 10 S.W.3d at 331 (citing State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)).

In Tilghman, the police made an unlawful entry into a hotel room. The police obtained the consent of one of the guests after gaining unlawful entry into the hotel room. The couret noted that the following factors should be considered in this analysis include: (1) the temporal proximity between the unlawful entry and the given consent; (2) whether the unlawful entry brought about police observation of the particular object for which consent was sought; (3) whether the search or seizure resulted from flagrant police misconduct; (4) whether the consent was volunteered or requested; (5) whether the person consenting was made fully aware of the right to refuse consent; and (6) whether the police purpose underlying the illegality was to obtain the consent. See Orosco, 394 S.W.3d at 75 (citing Brick, 738 S.W.2d at 680-81). The Tilghman court concluded that officers obtained the consent to search the hotel room after gaining unlawful entry and based upon the Brick factors noted above, that consent was not valid because it was no more than acquiescence to a claim of lawful authority. 

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Think your fists are not a deadly weapon? Think again. In a recent Texas case, a defendnat punched a correctional officer in the side of his head and knocked him unconscious. A Bowie County jury found the Defendant's fists were deadly weapons and convicted him of aggravated assault against a security officer while in the performance of his duties.  BRYAN WHITE, Appellant v. THE STATE OF TEXAS, Appellee, No. 06-18-00205-CR, 2019 WL 2307360, at *1 (Tex. App. May 31, 2019)

 

The bill to end the unpopular Driver Responsibility Program, which adds annual surcharges on top of traffic fines — and prompts the suspension of millions of driver's licenses — sailed through the upper chamber. If the measure becomes law, pending surcharges will be dropped.

Criminal justice advocates have been pushing for years to pass a bill that would have limited the misdemeanor offenses for which someone can be arrested — including traffic infractions that are only punishable by fines  Currenlty, Texas police officerws can legally arrest people for misdemeanors that are punishable with only a fine, like most traffic violations. House Bill 2754 would limit that practice, so officers could only arrest people for specific fine-only misdemeanors including public intoxication, assault or voyeurism.

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