austin dwi: April 2010

At the start of the new millennium, Americans were spending 1.3 trillion dollars each year on healthcare; anyone with a proper understanding of human nature recognizes that, when that much money is at stake, the unethical among us seek their personal benefit at the cost of those around them. The IRS estimates that between 3 and 10% of healthcare costs may be fraudulent. Even at minimum, that's an absolutely paralyzing $39 billion lost, including over $13 million in Medicare payments-yearly.

Obviously, something should be done. And yet, as so often happens, federal investigators and prosecutors typically rely on a heavy and injudicious hand-rather than a consistent one-when it comes to stanching the flow of money lost to healthcare fraud. The strategy appears to be to make examples of individuals, rather than bring about systemic change, which would be inconvenient and difficult.

Statistical data bears this out. According to government statistics, a mere 466 investigations of healthcare fraud were undertaken between 2005 and 2007, with only 203 cases actually resulting in sentencing. Investigation and prosecution of fraud cases is certainly a complex field, but it seems obvious that a $39 billion dollar problem can't be caused by a mere 50-60 people each year.

The same human nature that leads to healthcare fraud leads investigators and prosecutors to cut corners, attempting to solve a legitimate problem with minimal effort and personal expenditure. The problem lies in the fact that, when the focal point become individual prosecution rather than systemic change, it's entirely possible for the innocent to be greatly inconvenienced, falsely accused, or even wrongfully convicted.

Daniel Wannamaker is a board certified criminal law specialist and has 24 years of criminal trial experience with proven results as a Dallas criminal defense lawyer practicing in Austin criminal defense and Houston Texas. To learn more, visit http://www.wannamakerlaw.com

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But, what exactly is "suspicious" to an officer?

As a Texas peace officer, I have heard many fellow officers stop "suspicious vehicles" and "suspicious persons" on multiple occasions. I have also heard our Dispatch broadcast calls from citizens about "suspicious" activity in their neighborhood. That being said, as an Austin area Criminal Defense Attorney I have personally never engaged in one of these "suspicious person" stops as I do not believe it to be legal. This may be more of a personal belief than anything else, because I know that officers are legally authorized to make "suspicious" person and vehicle stops and I also know that officers, like anyone else, may "stop and talk" to a person... and that person may simply ignore the officer and walk away. But, I have thought about what may be "suspicious" and compiled the list below, but generally, anything that seems slightly out of the ordinary for a given area at a certain time of day may signal criminal activity. This first list is what I would consider "obvious suspicious" activities and I have no problem in stopping these sorts of people:

A stranger entering your neighbor's home or property when the neighbor is not home.

Screaming or shouting may signal a fight, robbery, rape, etc.

Offers of merchandise at ridiculously low prices could mean stolen property.

Person removing car parts, license plates, or gasoline are considered suspicious.

A person looking into parked cars may be looking for a car to steal or for valuables left in plain view inside.

Persons entering or leaving a business place after hours may be burglars.

The sound of braking glass or other loud, explosive noises could mean an accident, break-in, or vandalism.

Persons loitering around schools, parks, secluded areas, or in the neighborhood may be sex offenders, may be "casing" for crime, or may be acting as a look-out.

Persons around the neighborhood who do not live there could be burglars.

Persons claiming to be representatives of utilities (gas, phone, water, electric, cable) but who are not in uniform or have no company identification may be burglars.

Anyone tampering with or forcing entry into a building or vehicle.

Open or broken windows and doors at a home or business.

Gunshots, screaming, the sounds of a fight, persons chasing others on foot or in cars, unusual barking of dogs - anything suggesting foul play, danger, disturbance of the peace, or criminal activity.

Any vehicle without lights at night, cruising slowly, or following a course that seems aimless or repetitive is suspicious in any location, but particularly so in areas of schools, parks, and playgrounds.

Apparent business transactions conducted from a vehicle, especially around schools or parks and if juveniles are involved.

Persons being forced into vehicles.

A person exhibiting unusual mental or physical behavior may be injured, under the influence of drugs and/or alcohol, or in need of psychiatric help.

These, are the less-than-obvious "suspicious" activities:

Not every stranger who comes into your neighborhood is a criminal and they may have a perfectly legitimate reason for their activity. Haven't you ever seen a new style of car and wanted to check out its interior, so you looked through a window while walking past it? Or, maybe you were taking a walk, got tired and stopped at a bus-stop to rest, not intending to take the bus. The following are some situations you might see and what they might mean, but do they rise to the level of "suspicious" that officers should be involved?

A person loitering in front of a home or business if the residents are away or if the business is closed.

A person who is running and does not appear to be exercising, especially if carrying property.

A person carrying property at an unusual hour, in an unusual place, if the person appears to be trying to conceal the property, or if the property is not wrapped as if it were just purchased.

Heavy foot traffic to and from a certain residence may indicate narcotics activity or a "fencing" operation (buying and selling stolen property), if it occurs on a regular basis.

On- going vehicle "repair" operations at a non- business location.

Parked, occupied vehicles are worth noting, especially if seen at unusual hours.

The unfamiliar abandoned vehicle parked on your block.

While some, if not all, of the suspicious circumstances described above could have logical and legitimate explanations, officers will state that they would rather investigate a potential criminal situation and find nothing than be called after it is already too late and someone has been victimized. While this is a noble goal, it is critical that officers remember that this is a free society and that what may be unusual to one may not be out of the ordinary for someone else.

The first list set out above is one that even I, as an Austin Criminal Defense Attorney will agree with and do not question an investigation by police officers. However, while I was a uniformed officer myself, I questioned the stops made by other officers from this second list and sometimes felt disturbed that citizens would call to report activities like these.

I want to address each of these in the order listed to explain my position and reasoning. As to the person loitering in front of a closed business or a home if the residents are away, the first question I have is "where is the person?" If the "suspicious" person is on the sidewalk, is that not a public space where everyone has a right to be at any time? However, if the person is peeking in windows or rattling the door, then it is contained in the first list. But complicate the matter further. If the person is standing on the lawn, is that suspicious? I believe a stronger case exists that it is because trespass could now be involved, but if the landscaping is part of a public parking lot, does that not change the facts and make it less suspicious?

The second on the list is running while obviously not exercising (especially if carrying property). What is "obviously not exercising?" Maybe the runner cannot afford the latest workout gear and is running in something that many of us would not wear. Alone, that does not make it suspicious. Now, on the comment about property... what sort of property? Most people run with an Ipod, cell phone, or some other personal device right? Does that constitute suspicious? I'll admit, that if someone is running down the street with a DVD player--that's a bit more suspicious and out of place, but honestly, that has never happened for me in the almost three years that I worked as an officer.

The third item in the list is an accumulation of several "suspicious" actions. Without going into great detail, I think we all can agree that common sense is what is needed here. If we are looking at an item is being unwrapped, not everything purchased is "new" and not every purchase comes packaged in a wrapping. The most troublesome for me is what is the "unusual time or place?" If the person works different hours than most people, and is out doing something at night because that is his schedule, does that make it "unusual"?

The 4th point is relatively straight-forward. Yes, heavy foot traffic may constitute evidence of ongoing criminal activity, but depending on where it is, may not: for instance, a house near a college campus or on "sorority row" ... doubtful. A house with teenagers living in it that is near their school or that are very active members of various social organizations: probably not. Bottom line, try not to be the overly nosey busy-bodied neighbor that is always tossing stones at someone else and not dealing with your own affairs....

The vehicle repairs point really bothers me. Yes, it may violate a Homeowner's Association rule, but that is not criminal. Chop shops are not going to be out in the open. They are going to be tucked away where only the people using them know about their location, and it is doubtful that a chop shop is going to front as a mechanics business in the middle of a neighborhood. Just because someone cannot afford a spot in a commercial district for a mechanics shop, does not mean they are engaging in illegal activity. If this really bothers you, consider filing a nuisance action against them, but calling law enforcement is just in poor taste--officers are far to busy to run to calls like this!

To conclude, I want to combine the last two points: the parked, abandoned vehicle and the parked, occupied vehicle that is seen at "unusual" hours. Again, I want to focus on what is "unusual"... but an application of common sense should be able to cover this. And, if it is a matter of people "parking" ... please, get a life. Or, if it is offensive, why must you think of yourself as the "moral police" and get into their business?

Lastly, I appreciate what officers do, as I too worked in the field for almost three years. But now that I am an Austin Criminal Defense Attorney, I question some of the actions of other officers, and I did this when I was there... that is probably one of the reasons that I wanted to leave. After all, I think it much better for 100 guilty people to go free than one innocent be arrested/accused.

Dax Garvin, Attorney and Counselor At law is an experienced Austin Texas DWI Attorney, Austin criminal attorney, and a compassionate Austin divorce lawyer.

I graduated from Texas Tech University School of Law in May, 2002, and was licensed to practice law in Texas that November, following the July, 2002, Texas Bar Exam. Prior to that, I obtained my Bachelor of Science in Criminal Justice from the University of Texas at Tyler and my first years of undergraduate work were spent at Austin College in Sherman, Texas, where I learned the true passion of humanity-recognizing we are all part of one great society.

I worked in the Travis County Attorney's Office from August, 2002, until October, 2003, when I entered into private practice with a mid-size Austin civil litigation firm, where I enhanced my skills for legal research, writing, motion practice, and working with insurance companies from the defense perspective.

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