What is Probable Cause?
Probable Cause
If you have read our blog on police encounters you have a better understanding of your rights when approached by a police officer.
It’s a 3-Question Process:
- Officer, am I free to leave?
- Officer am I being detained?
- Officer, am I under arrest?
If the officer said you are under arrest, this arrest is based on probable cause.
What is probable cause?
Probable cause is defined as facts and circumstances sufficient to believe a crime has been committed. Your lawyer, will learn whether the officer in fact had probable cause to arrest you. For example, regarding DWI criminal defense, Texas courts have held rapid acceleration, weaving, speeding, verbal defiance, leaning on door for support, mumbled speech, bloodshot eyes, smell of alcohol, and poor performance on field sobriety exercises provided sufficient probable cause for a DWI arrest. In contrast, Texas courts have held speeding, an illegal u-turn, and a variation of the field sobriety tests did not provide a sufficient basis for a DWI arrest.
What is the difference between a mere encounter, a detention, and an arrest?
A mere encounter requires no suspicion at all. It is an exchange of information. A detention requires reasonable suspicion and is a temporary investigation. An arrest requires probable cause. Think of a staircase. The first step, mere encounter, is the lowest form of police interaction. The second step, a detention, requires suspicion a crime may have been committed. The third step, probable cause, requires sufficient facts to believe a crime has been committed. Your criminal attorney will examine the encounter, detention, and arrest to determine if each step was conducted lawfully.
What if the officer didn’t have probable cause to arrest me?
If the officer arrests you without probable cause, than the arrest is unlawful and in violation of your constitutional rights. Any evidence obtained from that unlawful arrest is known as “fruit of the poisonous tree.” Your criminal defense lawyer will move to have any unlawfully obtained evidence suppressed. Suppressed evidence means no evidence. No evidence means the state likely can’t prove their case and must dismiss.
Police Encounters
3 Critical Questions With Any Police Encounter.
Knowing your rights upfront can be the difference in defeating your criminal accusations on the back. Unlawfully obtained evidence is bad evidence. Bad evidence is not admissible against you in the court of law. If police violated your constitutional rights your lawyer will move to suppress the unlawfully obtained evidence. The likely result of suppressed evidence is a dismissal!
Three Critical Questions to ask with any police encounter are explained below.
1. Am I free to leave? – Mere Encounter
2. Am I being detained? – Detention based on Reasonable Suspicion
3. Am I under arrest? – Arrest based on Probable Cause
Am I Free to Leave? – Mere Encounter – When the police walk up to you.
A police officer has a right to walk up to you in a public place and speak with you. However, you also have the right to walk away. Unless, the officer has reasonable suspicion to detain you.
A mere encounter is an exchange of information. No level of suspicion (of criminal activity) by the officer is required and you are free to leave. That is why it is important to ask if 1) you are under arrest and 2) if you are free to leave. If you can leave then leave. A mere encounter is considered voluntary and your fourth amendment rights do not attach. Further refusing to cooperate with the officer does not give him reasonable suspicion to detain you.
What is the difference between a mere encounter and a stop or detention?
If the officer tells you that you are being detained or that you are not free to leave then the encounter becomes a stop or detention. A stop or detention is a temporary investigation. A frisk or pat down falls into this category. Essentially whenever a police officer restrains your freedom to walk away, you have been stopped or seized. Here, while you are not free to leave, you are protected by the fourth amendment against unreasonable stop or detentions.
Factors such as the officer’s tone of voice matter in determining if there has been a mere encounter or a stop/detention. The crux is whether you are free to leave.
Adamo & Adamo Law Firm Tip:
Ask the officer, “Am I free to leave.” If the officer says you are being detained he believes he has reasonable suspicion to detain you.
“Am I being detained?” – What is reasonable suspicion?
Reasonable suspicion means an officer can detain (i.e. investigate) if they have specific and articulate facts that: you are, have been, are presently, or soon will be involved in criminal activity. The basis for the detention can not be merely a hunch or gut feeling.
How long can I be detained?
There is not a bright line time limit for an unreasonable detention. However, the detention must be limited to the purpose of the stop and must only be long enough for the officer to affirm or dispel his suspicions. If the officer detains you too long or investigates matters not related to the initial stop, then he has violated your constitutional right not to be unreasonably seized (4th Amendment). If an officer’s detention is unlawful, your criminal attorney will move to suppress any evidence obtained after the detention.
Should I ask the officer why he stopped me?
Yes. Nothing wrong with asking this. You may not know why you were stopped. The officer may not have a lawful reason he stopped you.
Should I ask the officer, “Am I under arrest?“
Definitely yes. This question comes after “Am free to leave?” or “Am I being detained?“.
What if the officer says, “You are under arrest?”
You should tell him “you want your lawyer present for any further questions (5th Amendment and 6th Amendment).”
Should I ask the officer if I can make a phone call?
Yes.
What if the officer says, “You don’t need your lawyers right now.”
You should tell him “you want your attorney present for any further questions (5th Amendment).” Be polite, but be firm.
What if the officer says, “You are not under arrest?”
Ask if you are free to leave.
What if the officer says, “You are not under arrest, but can not leave?”
This is the typical scenario, and you can consider yourself detained. In this instance you should inform the officer, “you would prefer not to answer any more questions and would like to have your lawyer present (5th Amendment).”
The ball is now in the officer’s court. He must choose to either let you go or prolong his investigation. If he lets you go, count your blessings. If he arrests you, then he needs to have probable cause to do so. If he detains you and exceeds the scope of the initial basis for the stop or prolongs the detention, then he has violated your constitutional rights.
Real examples of a mere encounter:
- Officer approaching you and asking questions = mere encounter.
- Officer asking what you are doing in the area, what your name is, if you have any drugs = mere encounter.
- Officer approaching an occupied vehicle and knocking on the window = mere encounter.
- Use of siren or emergency lights, surprisingly = mere encounter.
- Parking the police car in such a way that you can’t leave, surprisingly = mere encounter.
- Use of officer spotlight alone = mere encounter.
- Use of officer overhead lights alone = mere encounter.
Real examples when mere encounter turns into a detention:
- Officer approaches an occupied vehicle + orders the person to roll down the window = detention.
- Officer asking for permission to search = detention.
- Tellling occupants of a vehicle to exit and have a seat with hands in view = detention.
- Shining spotlight + order/request to come over to officer = detention.
- Police spotlight + police overhead lights = detention.
Real examples of reasonable suspicion:
(the court has upheld the stop believing the officer possessed reasonable suspicion)
- Slow driving on the highway + entering a parking lot late at night + business closed + driving behind building + turning car lights off + high crime area = reasonable suspicion to detain and investigate.
- Recent burglary of a motor vehicle + police officer speaking with victim + truck drives by slowly + victim saying they had seen the truck before and suspected he may be suspect = reasonable suspicion.
- Urinating in public = reasonable suspicion.
- Speaking to a known drug addict + high crime area + walking away at the sight of officer = reasonable suspicion.
- Late at night + pulling up close to police vehicle + revving engine + lurching movement towards police vehicle + close to bars = reasonable suspicion (DWI).
- Crossing onto shoulder of roadway multiple times + unusual use of turn signal + late at night + close to bars = reasonable suspicion (DWI).
- Weaving multiple times + late at night + officer training and experience = reasonable suspicion (DWI).
Driving “all over the roadway” = reasonable suspicion (DWI). - Reaching for your waistband upon being approached by an officer.
- Admitting you were driving drunk.
- odor of alcohol + red, bloodshot, glassy eyes + slurred speech + admitting you were drinking.
- odor of marijuana.
Real examples of insufficient reasonable suspicion:
(unlawful stops and unlawfully obtained evidence)
- Evidence of flight alone (i.e. running when the cops show up) = not reasonable suspicion.
- Driving through a neighborhood where burglaries occurred = not reasonable suspicion.
- Parking at a closed business + late at night = not reasonable suspicion.
- Officer observes car hit the brakes + turn on headlights + immediate left turn to avoid officer + car registered out of county + 4 people in car = not reasonable suspicion.
- Anonymous tip + no corroboration = not reasonable suspicion.
- Quickly pulling out of a bar parking lot = not reasonable suspicion (DWI).
- Cutting off another vehicle = not reasonable suspicion (DWI).
- Weaving + lack of evidence regarding officer training/experience = not reasonable suspicion (DWI).
- Weaving one time = not reasonable suspicion (DWI).
- Weaving to avoid debris on road = not reasonable suspicion (DWI).
- Slow driving + lack of evidence regarding traffic on road = not reasonable suspicion (DWI).
- Screeching tires + lack of evidence regarding officer training/experience = not reasonable suspicion (DWI).
- Swerving within lane = not reasonable suspicion (DWI).
- Gang Membership
- Refusal to Cooperate
- Nervousness
Real examples of a detention:
- Use of police overhead lights + boxing-in your car is a detention (i.e. the officer must have reasonable suspicion).
Criminal Defense – Constitutional Rights
Criminal Defense Attorneys – Understanding Your Rights.
Whether you are casually approached by the police or are the subject of a criminal defense investigation, you need to understand your rights.
We all have rights, but we can waive those rights. Our rights stem from and are guaranteed by Federal and State Constitutions. These rights are then molded by laws and courts.
Below are important rights or weapons of mass protection to be aware of when coming into contact with the police. It is vital to remember that while you have guaranteed rights, you have to exercise those rights or risk losing them.
1st Amendment
- Freedom of Speech: you can say what you want.
- Freedom of Assembly: you can protest if you want.
2nd Amendment
- Right to Bear Arms: you have the right to own a gun (exceptions apply)
4th Amendment
“Show me the Warrant!”
- This is your shield against unreasonable searches and seizures. A search or seizure can range from police officer frisks to blood draw demands to a search of your home. This amendment also imposes limitations on police investigations and prevents the use of illegally obtained evidence at a criminal defense trial.
- While “warrantless searches” are presumed to be unreasonable, a search based on your consent is allowed. In other words, don’t consent to searches.
5th Amendment – “I plea the 5th.”
- You cannot be forced by police to reveal incriminating information that may be used against you in court. In other words if the police want to speak with you, inform them “you would be happy to cooperate with your criminal defense attorney present.”
6th Amendment – “Lawyer Up!”
- You have the right to counsel and the right to be told of such upon arrest (also known as Miranda warnings). Understand anything you say will and can be used against you. For example, in a routine traffic stop and subsequent DWI investigation answering such questions about what, when, and how much you drank will come in as evidence in a criminal trial. This is true despite not being read your Miranda warnings.
Sometimes When You Win. . . Exonerations and Criminal Defense.
In the 1992 basketball film White Men Can’t Jump, it was explained:
Sometimes when you win, you really lose and sometimes when you lose, you really win and sometimes when you win or lose, you actually tie, and sometimes when you tie, you actually win or lose.
Make Sense?
Neither does the state of our Criminal Justice System.
Sometimes When You Win…
The National Registry of Exonerations Report revealed a record (get used to this word) number of United States exonerations in 2015: 149 exonerations in fact, with five exonerations coming straight outta death row. Of the 149 exonerations, wrongfully convicted persons served on average about 14-and-a-half years in prison.
Crime Breakdown:
Homicide: 58 or 39 % (new record)
Drug Cases: 51 or 34% (42 or 82% of the drug exonerations came from Clutch City, Texas)
Sexual Assault: 15 or 10%
…You Actually Lose:
Why are there so many exonerations? Why are people averaging 14 ½ years in prison for something they did not do? Why since 2011 have exonerations nearly doubled? Is it the criminal defense attorneys? The prosecutors? The judges?
The answer lies in the disconcerting reasons below (exonerations were based on either one or a combination of).
Official Misconduct: 65 or 44% (a new record)
Guilty Pleas 65 or 44% (another new record)
False Confessions 27 or 18% (and another new record)
No-Crime Cases: 75 or 50%
DNA: 26 or 17%
Note: Not accounted for, but an often cited reason for wrongful convictions is mistaken identity.
Official Misconduct:
There’s gonna be some stuff you gonna see
that’s gonna make it hard to smile in the future.
With nearly half of the exonerations coming from Houston, you don’t have to look very far to find shattered oaths littered by those sworn to protect and serve.
Look at the court’s findings in the David Temple case listing 36 instances of prosecutorial misconduct. Check out the Joseph Salazar case accused of attempting to disarm a peace officer, before criminal defense attorneys subpoenaed video that proved otherwise. Official misconduct isn’t just Houston’s problem, wrongdoing can be found across the country. Official misconduct is particularly troubling given the role authority figures play in the system. These are the very people at the heart of justice. The very people who have the power and authority to ensure the truth is revealed. Yet, with at least three exonerations per week it is clear some officials have lost sight of their professional duties.
Guilty Pleas:
Why would someone plead guilty to a crime he didn’t commit? From the outside, it seems impossible. From the inside, it is a different story. Especially, for example, from the inside of jail under FBI Investigation. The justice system is a money system. If you don’t have the bank roll to bond out of jail or defend your case, a “deal” can put you back on the job and with your family. While the intentions at this stage may not be as malicious as above, innocent people are still stuck in prisons and with permanent convictions.
No Crime:
What? Huh?
How could someone be convicted of something that is not a crime?
A quick guilty plea for a low-level drug cases where subsequent lab results reveal otherwise is such an example. 51 wrongfully convicted drug cases were exonerated last year in Houston alone.
Convictions secured by “junk science” like Cameron Willingham’s arson accusation is another. Overall jurors want to do the right things. They see a well-dressed, well-spoken, so-called government expert explaining “junk science” and it sounds believable. The experts of the unsinkable ship, Titanic, sounded believable too. “Junk science” has become a “fly in the ear” for many types of criminal offenses.
False Confessions:
People often find it difficult to believe someone would admit to a crime they did not commit. Unfortunately false confession can and do happen. Police “tunnel vision”, trained interrogation techniques, twisted words, lengthy interviews, and overmatched suspects are some of the many reasons false confessions occur. One exonerated case even involved police torture.
Still Work To Be Done
While a few major cities, including Houston, have deployed Conviction Integrity Units designed to prevent, identify and correct false convictions, there is still much work to be done. The growing number of exonerations fail to account for low-level offenders lacking the means, determination or desperation to prove their innocence. While they may not be facing death or lengthy prison sentences, the collateral consequences of a conviction carry a heavy weight. Until those with the ability to make changes for the betterment of the system do so, these flaws will remain. Criminal defense attorneys, prosecutors, and judges must demand better. So sure, it is a great that falsely accused persons are being freed at a record rate, but they shouldn’t have been there in the first place. In other words, sometimes when you win, you really lose.
DWI – Breath Test Machines
If you have been arrested for DWI and submitted to a breath test, there are many factors that may have caused an elevated result.
Texas Gun Laws – Open Carry
Effective Jan. 1, 2016
We will frequently update relevant laws and policies as they are interpreted and released (see below video).
Update 01/08/2016: Guns permitted in state owned psychiatric hospitals:
http://www.nydailynews.com/news/national/guns-permitted-texas-state-psychiatric-hospitals-article-1.2490274
Texas Gun Laws
Are you an advocate for 2nd Amendment or an activist for gun control?
Do you agree “guns don’t kill people…” or do you agree with Chris Rock’s “bullet control” theory?
Regardless of where you fall on this hotly contested issue, regardless of your beliefs, if you reside in Texas you reside in a pro-gun state.
What follows is an explanation of Texas gun laws as of today’s writing, including amendments that will go into effect for 2016.
Legal Definitions to Know
“Firearm” means what you think it means. A “Handgun” means what you think it means.
Who Can’t Own A Gun?
Federal Law is more restrictive than Texas Law. You should be aware of both.
Under Federal Law you cannot own a gun if you:
- have been convicted of a crime punishable by imprisonment for a term exceeding one year (lifetime ban, unless released from this provision by a court order or pardon);
- have been convicted of domestic violence;
- are a fugitive (i.e. on the run);
- are an unlawful alien or renounced U.S. Citizenship;
- received dishonorable discharge from the armed forces;
- are subject to a restraining order/protective order against an intimate partner or child of an intimate partner;
- have been adjudicated as a mental defective, been committed to a mental institution or are an unlawful user of, or addicted to any controlled substance.
Under Texas Law you cannot own a gun if you:
- have been previously convicted of a felony (exception for deferred adjudication and the ban extends for five years from the latest of your prison release date or release from community supervision);
- have a domestic violence conviction (same five year eligibility requirement as above);
- are subject to a restraining order or protective order.
The Dos:
If you passed the first section and are legally allowed to own a gun, then…
Do: Carry a handgun on your person if you are licensed to carry and the handgun is concealed or in a holster (beginning 2016).
Do: Transport a handgun in your car if you are licensed and it is in your holster.
Do: Carry or transport a shotgun or rifle.
Texas law permits most persons to carry or transport shotguns or rifles regardless of whether the firearm is concealed or in plain view.
Do: Keep your gun in a locked container or on “safety” at home.
Tex. Pen. Code. Section 46.13 makes it a crime if a child under the age of 17 is able to gain access to a firearm at your home.
Do: Feel safe to bring your weapon with you on a hunting or fishing trip. So long as the weapon is one commonly used in that activity.
Do: Bring your gun on a road trip (but keep your road trip in Texas).
Do: Bring your handgun with you to and from work (as long as it is not done habitually and you have permission from the owner of the premises).
The Do Nots (excluding some of the obvious)
Do Not: Transport a handgun in your car or someone else’s car in plain view (license or not).
Do Not: Carry while intoxicated (license or not).
Do Not: Carry into Six Flags, Sea World, or any amusement park (license or not).
Do Not: Carry into church (license or not).
Do Not: Carry into a liquor store, bar, restaurant, convenience store, or any licensed to sell alcohol or with a sign like that looks like this…
Do Not: Sell, rent, loan, or give a handgun to a child.
There is a provision allowing a person to sell, rent, loan, or give a handgun to a child, if you have written consent from the parents. The safer practice is to stay clear.
Do Not: Carry into a racetrack.
Do Not: Carry into a sporting event.
Do Not: Carry into a school or school sponsored event.
An exception is discussed below regarding public and private colleges.
Special Provisions:
Public and Private Universities:
Beginning in 2016 licensed handgun owners may carry concealed handguns in permitted areas of universities. Public universities are required to implement regulations and notices for such areas. Private institutions may opt out all together prohibiting handguns. Displaying your handgun or showing off your handgun is not allowed.
Defending your home and property:
A popular question for any defense attorneys.
In short:
You can stand your ground and defend your home and property with force, even deadly force, provided you believe deadly force is immediately necessary to protect yourself or someone has broken into your home.
In certain circumstances this law extends to your neighbor’s property as well.
Conclusion
The above is the “cliff-notes” edition of general gun rights in Texas. Rights, duties, and responsibilities under both Federal Law and Texas Law may change at any time. Staying on top of current gun laws is necessary to ensure you are responsibly carrying.
WANTED – dealing with an active warrant
We have a received a lot of phone calls recently from individuals that have active warrants for their arrest and want to know what the next step is.
While most charges are filed at the time of arrest, in some instances a crime is investigated, then presented to a district attorney (state crimes) or U.S. attorney (federal crimes) who files charges. Because you are not yet in custody a warrant is issued.
Typically you learn of the warrant because your mailbox gets stuffed with solicitation from bonding companies and attorneys. Other times you may learn an officer has come around your home or place of business. Your attorney may be in contact with the lead detective who will notify him/her of the warrant. Lastly, you may actually get picked up by an officer. If you are arrested, go peacefully and respectfully. You will have your time to fight the allegations, but that time is not when the officer is attempting to arrest you. If you are interrogated, simply state, “You would be happy to cooperate with your attorney present (and request your attorney).”
If you have an active warrant and are not yet under arrest the next step is turning yourself in. An attorney can assist you in this process. If a bond has already been set, and the crime is eligible for what is known as a “walk through” and you will spend very little time in custody before being bonded out. If a bond is not set, you will have to turn yourself in and have your attorney approach the judge who has jurisdiction over the case to ask for a reasonable bond. Once a bond is set the bonding process can begin. If a bond is set, but the alleged crime is not eligible for a “walk through” you will have to appear before a judge or magistrate to receive your admonishments (crimes not eligible for a “walk through” include assault, domestic violence, sexual assault, etc.)
Expected wait times:
- Walk through – approximately 1 hour
- Bond, but not eligible for walk through – 8 – 24 hours (depending on when you are able to get in front of a magistrate/judge)
- No Bond – 24 hours +
It is important to know that ignoring the warrant will not result in the charges going away. Turning yourself in with adequate legal representation is the first step towards the path of freedom.