The offense of speeding often serves as the basis for a traffic stop that later ripens into an arrest for DWI. In such instances, law enforcement usually employs RADAR technology to justify a stop for speeding, often courtesy of a “radar gun”. RADAR stands for radio detection and ranging; speed is measured by assessing the change in frequency of reflected radio waves.  RADAR makes use of a scientific principle-the “Doppler Effect”-the change in frequency of reflected radio or sound waves as an object moves toward or away from one’s location. The timeworn example of the “Doppler Effect” is the changing pitch of a train whistle as it moves down the track. Utilizing “Doppler", the velocity of an object is then directly proportional to the change in frequency of the reflected wave. Texas courts have long approved of RADAR as a reliable method for measuring the speed of a vehicle.

A second technology-LIDAR, is also commonly employed to justify stops for speeding. LIDAR stands for Light Detection and Ranging. LIDAR utilizes light waves emitted with a laser device to precisely measure distance. The simple calculation of distance traveled (of the light reflected off a traveling object) divided by time of travel equals the object’s speed. Unlike RADAR, Texas courts curiously have not yet endorsed the technology as reliable. According to the Waco Court of Appeals, “there are no Texas authorities confirming the reliability or admissibility of LIDAR technology.” Hall v. State, 264 S.W.3d 346 (Tex. App.-Waco 2008). To fulfill the trial court’s role as “gatekeeper” of the admissibility of evidence, a reliability determination of some sort must first be made before evidence, such as LIDAR, is admissible in a criminal case.  In Texas, Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) must be followed.

In Hall v. State, 297 S.W.3d 294 (Tex. Crim. App.-2009) the Court of Criminal Appeals upheld the Waco Court of Appeals determination that the state’s failure to proffer any evidence of the reliability of LIDAR evidence rendered a stop for speeding illegal in a DWI prosecution. The Court left undecided how much evidence of reliability would be required before LIDAR would be admissible in a pretrial setting.

Until such time as Texas courts acknowledge the reliability of LIDAR, a probable cause challenge might prevail if insufficient evidence exists as to reliability of the technology.






Investigative Detentions

How much information do the police need before a citizen can lawfully be detained for DWI or for any other crime—reasonable suspicion. The standard originates with a landmark 1968 Supreme Court case-Terry v. Ohio, 392 US 1 (1968).  This question can be important to someone arrested for DWI because the charge will likely get thrown out, if, at a minimum, reasonable suspicion for the initial stop did not exist.

In legalese, a temporary investigative detention is justified when the detaining officer has “specific articulable facts which, taken together with rational inferences from those facts lead the officer to conclude that the person detained is, has been, or soon will been engaged in criminal activity”. This is something more than a hunch and less than probable cause. Texas courts require specific facts pointing toward a crime rather than mere conclusions. The quote below states the law on this point.

“Without specific, articulable facts, a court has no means in assessing whether this opinion was objectively reasonable”.  Ford v. State, 158 SW 3d 488 - Tex. Court of Criminal Appeals 2005.

Typically in a DWI case, the arresting officer personally observes the “bad driving” which justifies the stop. A myriad of possibilities exist to justify a stop-erratic or unsafe driving of all sorts. 

Frequently, however, the information or tip justifying the stop comes from a person other than a police officer-what the courts term, “the citizen-informant” or “citizen witness”. For example, a fellow driver calls 911 to report you for suspicion of DWI due to unsafe weaving or driving recklessly. A stop based upon a tip from someone identified by the police satisfies the Fourth Amendment because the tip is deemed to carry sufficient "indicia of reliability". In the DWI context, the “tipster” stops and identifies himself to the police or gives his name and contact information to the police dispatcher. The courts consider the tip to possess enough information to allow the officer to conclude that the caller-in is credible.

When the police detain someone on the basis of an anonymous tip, however, they must corroborate the tip. Corroboration means the police confirm enough facts to conclude that the information provided is reliable and a detention is justified.

To recap: stops to investigate, OK when reasonable suspicion to investigate; OK when information for the stop comes from an “informant” known to be credible; OK when information comes from an anonymous “informant” when the “tip” is corroborated by the police officer.

DWI by Alcohol and its Synergistic Effect with Another Substance

Last week I wrote a post on the kind of evidence needed in a DWI by drug case. There's another related situation worth mentioning-when the driver consumes a substance (be it an over-the-counter medication or a controlled substance) that makes him more susceptible to the effects of alcohol. This is referred to as the "synergistic effect" of alcohol and a consumed substance or drug. In such a case, the prosecutor can argue that despite a breath test result below the legal limit, the driver was nevertheless intoxicated because a consumed substance made him more prone to the effects of alcohol.

Many clients find this a startling revelation-the idea that you can blow under the legal limit and yet still be convicted of DWI by alcohol. The reason of course, lies in the fact that along with a .08 breath test score, Texas law defines intoxication as the loss of normal use of physical or mental faculties. Alcohol and some other substance, the argument goes, has enhanced the effect of the alcohol resulting in intoxication. Texas courts consider a person found guilty of DWI by reason of the "synergistic effect" to be intoxicated exclusively as a result of alcohol. 

The "synergistic effect" theory differs, however, from a claim that alcohol combined with a drug or substance caused intoxication. This fine distinction used to matter before the Texas Court of Criminal Appeals changed its mind about what constitutes the "elements of the offense" of DWI. That's getting pretty technical and I mention it simply to make you aware of the "synergistic effect" theory of prosecution.

Can the prosecutor make the same type of argument about a bodily condition that has weakened you and increased the effects of the alcohol-say for example, fatigue? The "synergistic effect" theory does not apply to fatigue, or any other purely natural deterioration of the body. "Synergistic effect" applies to alcohol and its interaction solely with substances.

As is the case with DWI "by drugs", the prosecutor needs expert testimony to establish the synergistic effect of alcohol and a substance, though no Texas case explicitly says so. The logic of the Smithart decision (discussed in last week's post) readily applies.

So if alcohol and some other substance are involved in your case, watch out-just because you've got a breath test result under the legal limit doesn't get you off the hook if an argument can be made that something you took-an antihistamine, a prescribed muscle relaxant, etc. made you more susceptible to the effects of alcohol.

DWI by Drugs

Occasionally I've had a DWI case where the client has taken a breath test and blown 0.00 or significantly under the legal limit of .08 indicating a complete absence of or little alcohol in the person's system.  Despite the lack of evidence of alcoholic intoxication an arrest is made due to the officer's belief that the person is intoxicated from drugs, either "recreational" or prescribed. Even though the prosecution is not required to prove the specific intoxicant involved, proof must exist of the loss of normal use of physical or mental faculties "by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." The "average" police officer may not, however, possess the expertise necessary to testify that a person is intoxicated from drugs.

According to Smithhart v. State, 503 S.W.2d 283,286 (Tex. Crim. App.-1973), a 1973 decision of the Texas Court of Criminal Appeals, expert opinion is needed to establish that a person is intoxicated from drugs in a DWI by drug case.

The rationale is that intoxication by alcohol is of such common occurrence that its recognition requires no expertise.  When a person is under the influence of drugs, expert testimony must connect that person's symptoms to a conclusion that he or she was under the influence of a drug and was incapable of safely operating a vehicle.

Enter the "DRE", the drug recognition expert, the creation of the LAPD-a police officer trained to recognize impairment in drivers under the influence of drugs, other than or in addition to alcohol. DRE's utilize a 12-step protocol to check for impairment by drugs. The examination takes about 45 minutes and is similar to a medical exam (minus the doc).

No DRE in your DWI arrest? Can you still be convicted of DWI by drugs? It depends upon what creeps into the record. Statements by the driver admitting to drug use coupled with the arresting officer's observations and a toxicologist's testimony about potential impairment from the consumed drug could certainly do it. My conclusion-I'd pay extra special attention to any DWI case involving drugs where no DRE participated.

Texas House Bill 17 Is Unconstitutional

Representative Debbie Riddle's (of terror babies fame) bill creating the offense of criminal trespass for illegal aliens likely violates the Constitution and I predict will quickly be enjoined if passed by the 82nd legislature. You could almost hear the little wheels and gears turning. Criminal trespass based upon a violation of federal immigration law. That could work; or not.

A few problems, constitutional and otherwise. First the legalities. House Bill 17 criminalizes a non-citizen's presence in Texas if there is an initial unlawful entry as defined by federal immigration law, specifically 8 U.S.C. Section 1325 or 1326. Sounds reasonable, eh? Simply state enforcement of federal immigration law. Not quite. The gist of the newly created crime is the non-citizen's presence in Texas despite the fact that Congress takes a contrary position. Entry without inspection and entry after deportation are federal crimes but so far Congress has avoided making it a crime for mere presence absent other factors. Riddle's bill violates the preemption doctrine-a fundamental principle of the Constitution that Congress has the power through the Supremacy Clause to preempt state law.

Criminal trespass may sound appealing to Texans but immigration presents an issue national in scope often with multiple and competing objectives. Although a state may adopt regulations that have an indirect or incidental effect on non-citizens a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law.

Arizona attempted the same kind of mischief with its anti-immigration measures resulting in an immediate federal injunction. From the tenor of the appellate argument in the Arizona case, the creation of a state crime that supplants federal immigration law by criminalizing unlawful presence doesn't stand the proverbial snowball's chance.

HB 17's amendment to the Code of Criminal Procedure, authorizing a warrantless arrest for criminal trespass, too, looks shaky.  Under Riddle's bill, if you get stopped for a traffic offense the police officer gets to monkey around with the idea that, perhaps there's reasonable suspicion to believe that you're committing criminal trespass of the State of Texas. Physical appearance of the person stopped then plays a role in the process. Anyone who looks like they're from south of the border is fair game.

How long can you detain someone under the bill to figure out their immigration status? In the Arizona case, the state's attorney told a panel of the Ninth Circuit Court of Appeals that ICE would respond in 11 minutes. (presumably through ICE's Law Enforcement Support Center). That might be correct where illegal reentry is concerned (a violation of 8 U.S.C. Section 1326) but for those alleged to have entered without inspection (a violation of 8 U.S.C. Section 1325) no such records exist-illegal entry is the issue to be determined and the 11 minute figure goes out the window. The officer then gets the opportunity to hone his interrogation skills.

A relevant question to ask is whether a check to determine immigration status presupposes a trip to the police station to check fingerprints. Under the Secure Communities program, ICE currently checks the immigration status of persons arrested at some Texas county jails utilizing fingerprint checks. Can you haul folks to the police station without an arrest to determine their immigration status? For a class B misdemeanor, probably not under Hayes v. Florida, 470 U.S. 811 (1985).

No good can come from the bill's (nor other Arizona style legislation) passage. Aside from the constitutional difficulties posed by the creation of a state crime for an immigration violation, consider the ill will engendered by such legislation. Arizona already set the stage for such hard feelings. To what end? It's almost a certainty the federal courts will enjoin such legislation on preemption grounds. Why then alienate the fastest growing segment of the population in this state who are ultimately destined to comprise a good share of the voting public.  Prudence suggests pragmatic thinking and cooperation to fix a complicated immigration problem instead of thumb-in-the-eye treatment.


Deferred Adjudication for DWI

I couldn't tell from the highly flattering front page photo in the Statesman of Rep. Todd Smith (Texas House District 92) whether he was old enough to remember the last time persons charged with driving while intoxicated were eligible to receive deferred adjudication.  The Legislature did away with it on January 1, 1984.  My recollection is that the powers that be figured out that DWI was too serious to let some avoid a conviction.  Deferred adjudication (not "deferred ajudification", which seems to have infected the lexicon) is a provision whereby the judge finds sufficient evidence of guilt but withholds finding the defendant "guilty". The case is ultimately ordered "dismissed" upon successful completion of the deferred adjudication.

Well times certainly have changed haven't they. Now, MADD likes it. John Bradley, the influential Williamson County DA is in favor of it along with the Statesman's editorial board. What up with that? According to the Statesman's Claudia Grisales, it looks like the bill  will pass. How did we get from here to there and back again? Expediency.

122,000 pending DWI's statewide. A jury trial for each one of them? That won't happen. They'd be trying DWI's until sometime in 2020. So dust off the deferred adjudication provision in the Code of Criminal Procedure. This won't make a dent in the backlog. For one thing, deferred adjudication boasts a non-existent benefit of not counting as a conviction. However, everyone knows you've been arrested for DWI; you cannot expunge a deferred adjudication. Dollars to donuts the non-disclosure law will not apply to DWI. (I wrote this before I actually read the proposed applicable provision of the non-disclosure law; sure enough no non-disclosure for DWI's).

So with deferred adjudication on the books for DWI I'm going to tell my clients, "It's not technically a conviction. However, it's still on your record, you won't be able to expunge it. You won't be able to get an order of non-disclosure. Your employer will be able to see it along with anyone else". Well that sounds attractive doesn't it?

You want to make some inroad upon the number of pending DWI's. Do what a number of counties do informally. Use pretrial diversion-a contractual agreement between the defendant and the prosecution that results in a dismissal. The defendant completes counseling, community service and other specified conditions and his case gets dismissed. I've never turned one down. And if you're worried about the almighty precious criminal record, make the defendant agree not to pursue an expunction. I think that's a disincentive but I still think it will reduce the caseload. You could trust your prosecutors to use it as needed. On the other hand if you're convinced that DWI is the worst offense in the Texas Penal Code you could increase the number of courts and prosecutors. You could put your money where your mouth is instead of rejiggering the system with a worn out provision that, I predict, will be scrapped because it didn't do what the proponents expected. 

Statesman Says Travis Judges Allow Occupational Driver's License Law to be Used as Loophole in Administrative License Revocation (ALR) Cases

In a series of articles and television stories the Austin American Statesman and KVUE recently took aim at the manner in which Travis County judges grant occupational driver’s licenses to folks who've had their licenses yanked for either refusing a breath test or failing one. The press pointed out a number of seemingly startling observations. Namely, that the Texas legislature passed the administrative license revocation laws (ALR) to get drunk drivers off the road immediately and through a loophole (the occupational license law) lawyers were getting their clients back on the road with the help of Travis County judges. Not only that, but the lawyers were exploiting the system and using the suspension hearings to try and beat the DWI's.

Whoa hold on there boy. Aren’t you jumping to a few conclusions mighty rapido.
Remember now, at the time the State of Texas strips these licenses no one has been convicted of anything. A police officer has simply sworn that probable cause for a DWI exists. One of the articles made no bones about it-“Lawmakers at the time said they wanted to provide a measure of swift punishment to suspected drunken drivers, long before their cases go to court.” That’s fairly frightening. Punishment first. Trial later. It's enough to make any junior high civics student shudder.

The complaint was made that the administrative license revocation laws enabled defense lawyers to get discovery on their DWI cases by having the officers testify before trial. The reason for this is as old as the Fifth Amendment. It’s called due process. Before you can strip someone of a right or privilege, such as a driver's license or public employment, you have to afford them the opportunity to be heard. If that enables an accused to preview the DWI case or commit the officer to specific testimony-so be it. That’s the nature of the system. The same can be said of any pretrial hearing in any criminal case or parallel civil proceeding (such as a protective order hearing when assault charges are pending). All part of the system. Nothing nefarious. That’s how it works. The state giveth. The state taketh away but first you have to let me cross examine the witness. So what, anyway. The officer testifies twice.  Maybe some DWI case that deserves to get thrown out because the witness can’t keep his stories straight, gets thrown out. That wouldn’t be such a tragedy would it?

No mention in the articles of the fact that the hapless DWI’er gets punished twice-a suspension before trial and one after trial, if convicted. Or that these Travis County judges who supposedly hand out occupational licenses like candy regularly impose (as the law requires in many instances) an ignition interlock condition at the cost of hundreds of dollars per year to the defendant. No mention of what we lawyers who deal with these cases call a “blackout period”(no pun intended) or “hard suspension”(a mandatory suspension that can range for a period of 90 days to a year during which no occupational license can be obtained in certain DWI cases with prior convictions).

I guess what galls me about the front page blitz is the intimation that something shifty is going on. You mean elected judges using their discretion, which is what we pay them to do, are letting people drive so they can go to work or to probation meetings or to AA meetings. “The whole thing takes no more than 15 seconds”, the Statesman eagerly quoted County Court at Law Judge Nancy Hohengarten. I expected  to read that the judges were signing these orders over in the corner of the courtroom with the lights dimmed.

Padilla v. Kentucky Requires Criminal Lawyers to Give Immigration Advice

The recent Supreme Court decision in Padilla v. Kentucky greatly increases the criminal defense attorney’s responsibility to provide effective assistance of counsel. It’s a sea change from defense counsel’s previous minimal obligation under Tex. Code Crim. Proc. Article 26.13(a)(4) to merely advise a defendant that a guilty plea might result in adverse immigration consequences. The Court explicitly rejected the view that only defense counsel’s misadvice concerning the immigration consequences of a conviction will rise to the level of  an ineffective assistance of counsel claim.  The Department of Justice's Immigration Law Advisor asserted that:

The Padilla ruling immediately affects criminal defense attorneys and their alien clients. All criminal defense attorneys now have the affirmative duty to research and advise on the consequences of a given plea, or they will risk an ineffective assistance of counsel claim.
In my opinion, Justices Alito and Chief Justice Roberts were more realistic about the slim prospect of  criminal defense lawyers providing “expert” advice about an area of law outside their expertise and an area of law which some have termed only second to tax law in complexity. Nevertheless, when the consequences are “succinct and explicit” the criminal defense lawyer now must render correct legal advice concerning the immigration consequences of a particular plea. In Austin, Texas and elsewhere in the Southwest the demographics insure that the criminal defense lawyer will increasingly face the prospect of  advising clients what effect a guilty plea will have upon their immigration status

The Padilla ruling immediately affects criminal defense attorneys and their alien clients. All criminal defense attorneys now have the affirmative duty to research and advise on the consequences of a given plea, or they will risk an ineffective assistance of counsel claim.

In my opinion, Justices Alito and Chief Justice Roberts were more realistic about the slim prospect of  criminal defense lawyers providing “expert” advice about an area of law outside their expertise and an area of law which some have termed only second to tax law in complexity. Nevertheless, when the consequences are “succinct and explicit” the criminal defense lawyer now must render correct legal advice concerning the immigration consequences of a particular plea. In Austin, Texas and elsewhere in the Southwest the demographics insure that the criminal defense lawyer will increasingly face the prospect of  advising clients what effect a guilty plea will have upon their immigration status.

A criminal conviction can entail a number of adverse immigration consequences aside from removal-namely the effect upon naturalization, ability to obtain a visa, etc.Padilla however dealt with the consequences of a criminal conviction upon the “removal” provisions of the Immigration and Nationality Act. As Padilla pointed out, the removal provisions in many cases have a greater impact upon a criminal defendant than the actual punishment for the commission of the criminal offense.

Removal Based Upon Criminal Conviction:

The Department of Justice’s excellent reference guide “Immigration Consequences of Criminal Convictions: Padilla v. Kentucky” points out that the:

The INA separates removal grounds into two categories: inadmissibility grounds codified at 8 U.S.C. § 1182(a) and deportability grounds codified at 8 U.S.C. § 1227(a). Both inadmissible and deportable aliens are referred to as “removable” aliens. The question of which category applies turns on whether the alien has been admitted to the United States, i.e., whether the alien has made a lawful entry after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). An alien who has not been admitted to the United States is subject to removal based on one or more grounds of inadmissibility.” Therefore, the person’s status in this country determines whether he/she will be “deportable” or “inadmissible.

Generally speaking, Lawful Permanent Resident’s are subject to deportability. (although a Lawful Permanent Resident can also be subject to grounds of inadmissibility). All others are subject to removal on grounds of inadmissibility. 
Different criminal conviction grounds exist for inadmissibility and deportability. A good quick guide along with other information pertaining to the immigration consequences of criminal convictions is available through The Immigrant Defense Project.

Public Safety and the Fourth Amendment

At a hearing the other day, a police officer testified that a caller-in reported that a man handed another man a gun in an apartment house parking lot and then drove off. Those actions warranted a stop of both men. Now, nobody was doing anything illegal. Nobody was threatening anyone or exhibiting the weapon in a dangerous manner. In fact, the two men appeared to be friends. The caller-in thought it looked dangerous.   So what justified the stop? "Reasonable suspicion"-the time honored test? I don’t think so.

Police officers often testify that if they stop a motorist for traffic and they smell alcohol, the driver gets to do field sobriety tests. It’s policy. So, you can have a drink, get stopped for traffic and suddenly you’re on the side of the road, with one leg in the air.  Is that legal? Perhaps not. But let me clue you in. The Fourth Amendment gets little respect. The Amendment tends to get in the way of “effective” law enforcement. This is no secret.  We lionize cops who have the cojones to skip procedure and get the job done. Everyone’s seen Dirty Harry or  Lt. John McClane. They're American heroes.

The stop of the man with a gun in the parking lot.   “Public safety” justified that. “Public safety?” Did I miss that in law school? I actually looked it up after the hearing. Not in the Fourth Amendment. The term, however, glided off the officer’s tongue.

The Constitution guarantees a collision over our various rights. No one interest is absolute. It’s certainly safer to strip all the handguns from a "high crime" area.  Public safety could justify that. You’d get a big argument from the Second Amendment folks, but I’d bet you’d have less opportunity for violence. Stopping everyone at a DWI roadblock at two in the morning in downtown Austin would make the streets safer. MADD would applaud.  A similar case can be made for profiling, stops of suspicious persons who make furtive movements and endless other hunches and intuitive judgments that suggest possible criminal behavior. We'd probably be safer.

Ultimately, in America, it’s a question of balance. It’s in our genes. We have made the balancing of competing interests our passion. Following a slippery concept like "public safety", has legal consequences-the sawed off shotgun seized in a search of the car in the parking lot winds up getting thrown out. Adherence to the Fourth Amendment preserves our freedom. I’ll have to admit, though, that at times, Inspector Callahan fits the emotional bill. "Pass the popcorn, will ya?”.  


Fourth Amendment Nuance Worth Consideration

While conducting research for a motion to suppress evidence  as a violation of Terry v. Ohio,  I discovered some caselaw concerning what is termed  “the collective knowledge doctrine.”  Terry v. Ohio, of course, allows a police officer to conduct a limited  investigative detention when supported by reasonable suspicion. Terry will be discussed  in the coming Texas legislative session because it provides the Fourth Amendment muscle for a number of  proposed bills that parrot Arizona’s attempt to detain individuals to check their immigration status.

The “collective knowledge or imputed knowledge” doctrine refers to imputing knowledge of facts essential to a determination of reasonable suspicion or probable cause from one law enforcement source to the actual officer conducting the detention or arrest. The justification for the rule lies in the fact that “the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates”.  United States v. Colon, 250 F.3d 130 (2nd Cir. 2001).

OK, that’s interesting. What do you do with that? Well, here’s the important and often overlooked point. When a civilian employee of a police department gets stuck in the chain of information, an officer conducting the detention cannot ordinarily rely upon “imputed knowledge” from the civilian employee. Only if the "civilian" is trained in making a "reasonable suspicion" determination can “reasonable suspicion” be imputed to a detaining officer from a non-law enforcement source. This of course can render reasonable suspicion or probable cause insufficient and invalidate a search or seizure under the Fourth Amendment. This nuance undoubtedly gets overlooked and detentions or arrests that involve non-law enforcement personnel in the chain of information pass muster when perhaps they should not.

For instance, in the Colon case  a presumably anonymous caller reported to a civilian 911 operator that a man in a bar had a gun. A police dispatcher received that information as did the officer ultimately making the investigative detention. What did not get transmitted was the fact that the caller gave additional information from which one could conclude that the “anonymous” caller was in fact identifiable. The Court found the detention invalid under Florida v. J.L., 529 U.S. 266,  120 S.Ct. 1375, 146 L.Ed. 2d 254 (2000) (anonymous tip concerning man with a gun without more insufficient to establish reasonable suspicion) because the information concerning the caller’s identity (known to the civilian 911 operator but not the police dispatcher nor the detaining officer) could not be imputed to the actual officer making the detention. Had everyone involved in the chain of information possessed police credentials, knowledge of the caller’s identity could have been imputed to the officer conducting the detention. It might be helpful in situations where "reasonable suspicion" depends on collective information to ask who is making the reasonable suspicion determination.

Under Terry, the police must make the determination. Likewise, imputed information essential to a reasonable suspicion determination must originate with a “police” source or evidence must exist that the civilian police employee received training in determining reasonable suspicion.  An untrained civilian source or a record that fails to show a properly trained civilian jeopardizes the legality of the detention.