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.
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.
DWI and DUI Roadblocks
Drivers across the country have been using the featured signs when approaching random roadblocks. The sign does not apply to Texas, but it is a solid refresher of knowing and understanding your rights. Specifically, your right to:
- Remain Silent;
- Refuse Search Requests;
- Request An Attorney.
In Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994), the Texas Court of Criminal Appeals held roadblocks were unconstitutional, without a state wide plan setting out guidelines. To date no such plans exists and roadblocks are considered illegal.
However beware that courts have held avoiding roadblocks can provide the basis for a stop. Johnson v. State, 833 S.W.2d 320 (Tex. App. – Fort Worth 1992, pet. ref’d).
Regardless, you should not see roadblocks on Texas roads. If you do, have your sign ready!
New Laws in effect for 2015
Scroll Below for new laws in effect for 2015.
Wolf Inside the Chicken Coop – Visiting the DPS Crime Lab
Today DPS opened up their doors allowing us an inside look at their crime lab. In particular we were given presentations on DNA, Ballistics, Evidence Reception, Breath Alcohol and Blood Alcohol Testing, and Drug Testing. The experience was one every criminal defense attorney should undertake.
Receiving Evidence
Why the method of receiving evidence is important?
A major concern with evidence of any kind, but especially biological evidence is contamination. Contamination can come from a number of sources. The receiving department has the responsibility of ensuring the integrity of the evidence has not been compromised. Compromised evidence can lead to wrongful convictions. Under the law the chain of custody must be known before any evidence is admitted into court (i.e. who handled the evidence and when did they handle it). The receiving department assists in ensuring the chain of custody is accurate and proper.
What to look for:
How was the package sealed?
- How is it taped?
- Is there evidence tape?
- Were staples used?
- Is the package torn or ripped?
- Is the package opened?
- Is there a proper chain of custody?
Trace Evidence
Trace evidence occurs when objects contact. Examples include, hairs, paint, shoe prints, fingerprints, glove prints, etc. Below are some of the machines used by DPS to attempt to reconstruct the crime scene using trace evidence.
Breath Test
While there has been a bit of delay for the release of the Intox9000, the anticipated release date is January 1, 2016. The Intox9000 will replace the Intox5000, which has provided breath alcohol samples since the early 80s. While there are a few new gadgets on the Intox9000, in essence it is simply a more user friendly version of the Intox5000. Meaning there are still a number of issues concerning its accuracy and reliability.
During this presentation it must be noted, when asked about the delay on the Intox9000, it was denied. Also, when asked by an individual if the Intox machines were in vehicles, the DPS employee responded they would never put one in a car. This is 100% false, as they have done just that (known as the BAT Van).
Blood Alcohol Testing
The Gas Chromatograph – Flame Ionization Detector (GC-FID) pictured below is used to qualify and quantify alcohol in blood. This machine is based on separation science. As an example, picture a sloped driveway. You are standing by the garage with a number of different sports balls in front of you (e.g. basketballs, footballs, soccer balls, baseballs, golf Balls, etc.). As you turn the blower on and point it towards the balls, they will begin traveling toward the bottom of the driveway. Eventually they will all reach the base of the driveway, doing so at different speeds. Think of molecules in blood as those balls. The machine is able to identify the molecules (i.e. ethanol) via the speed at which they travel through the machine. Once the molecule has been qualified (identified), it can then be quantified.
Of note: DPS employees listed on the dry erase board the highest BACs of the year. Directly in front of that board was Garriott’s Medicolwegal Aspects of Alcohol, a book written by the leading scientists regarding alcohol. The three BACs listed on the dry-erase board were all well over 0.40. When asked, “0.40? Shouldn’t the person be dead?”, the DPS employees response, “Yes, they should be.” Yet the result was considered valid and business as usual? Despite the leading scientists stating death is a real possibility at 0.30? Disturbing answer.
Drug Testing
After a positive presumptive test. Drugs are then run through the Gas Chromatograph – Mass Spectrometry (GC-MS) for a confirmatory test. Similar to blood alcohol testing this science is based on separation.
Ballistics
Think gun residue, shooting distance, serial # restoration, bullet cartridges, etc.
DNA
Specifically fingerprints and bodily fluids used to obtain information on potential suspects.
While it was difficult not to turn the presentation into a colorful cross-examination, the experience was both invaluable and informative. We appreciated the opportunity to take a look inside the chicken coop.
Destroying your neighbors irritating drone.
In an episode from the hit series TV show Modern Family, Phil, Luke, and Manny go to great lengths in an attempt to destroy the neighbors irritating drone.
Phil isn’t alone. With the increasing number of hobbyist drones, the suburban airspaces have turned into minor battlefields. The question becomes, is it legal to destroy your neighbor’s drone? In most instances no, of course, as with anything there are a few exceptions.
The History of Drones in the United States
A drone or unmanned aircraft vehicle (UAV) is an aircraft without a human pilot. Innovation for today’s drones began in the early 1900s as a way to train military personnel. Little more than remote-controlled airplanes, the drones were modified in the 1960s with the U.S., concerned about losing pilots during the Vietnam War began deploying drones for high-risk flying operations. Heading into the early 1990s and with technology advancing, the U.S. unveiled their armed UAV lineup for the Gulf War.
While drones were developed for and associated with military applications, they have become more common in everyday urban and rural life. Modern UAVs are used for aerial surveillance of crops, footage in filming, search and rescue operations, inspection of power lines and pipelines, counting wildlife, delivering supplies, crowd monitoring, etc. UAVs have also become a trendy hobby for people, which is why you may not be all that thrilled about your neighbors new toy.
Is it legal for your neighbor to fly a UAV?
Yes, although there are limitations on using drones and capturing images of persons on private property and images of private real property. See Texas Government Code, Section 423. Look for the laws surrounding drones to change and develop as people continue to take their latest hobby to the air.
Can I destroy my neighbors flying UAV because I don’t like it?
No. In fact you can be prosecuted under Federal Law 18 U.S.C. Section 32, stating in part:
(a) whoever willfully-
(1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce
…shall be fined…or imprisoned not more than 20 years.
In 2011 the National Transportation Safety Board declared a drone an aircraft subject to FAA regulations. In other words the aforementioned Federal Law criminalizing the destruction of an aircraft applies to your neighbor’s irritating, drone hovering over your backyard.
What if I am under attack from my neighbor’s drone?
While self-defense has always had a bit of grey area in its application, if you believe force is immediately necessary to protect you, your family, or even your neighbors property, then yes you can take it down. Is the drone equipped with ammo? You can destroy. Is the drone trying to ram you? You can destroy.
What if the drone lands on my yard?
Unlike airspace (government property), your yard is your property. However, that doesn’t mean you can take a Louisville Slugger to the drone. In Texas, you may defend your property, but you must believe you are under attack.
What if the drone flies into my home?
If the drone comes crashing through your window and lands in your home, feel free to channel your inner – Dwayne “The Rock” Johnson and dust off your best “people’s elbow.”
Under the law, self defense may be used if a person unlawfully and with force enters your home. Here a drone (via a person) has unlawfully and with force entered your home.
What if the drone is a “Peeping Tom?”
Just because someone is snapping photos of you, doesn’t mean you can take a crane kick to their face.
So, technically speaking under Federal Law it seems you could be prosecuted for destroying or damaging the drone. Practically speaking, however, I find it difficult to believe any jury would find you at fault. On the other hand, the owner of the drone could face a variety of criminal penalties depending on what type, if any, images were captured.
Back to Phil…
So was Phil breaking the law? Maybe.
Under Federal Law, Phil could be prosecuted. Of course, he would argue that he was only defending himself and his family from the attacking drone. This may keep him out of harms way. That is of course if investigators believe he was in fact under attack and in fear of his or his family’s life.
Officers may take the easier route and just charge him indecent exposure (1:10) and Manny with theft (of the bike, 0:39).
What you should do.
If you encounter an irritating drone around your home, call the police. In most instances you should stay clear from destroying, damaging, or attempting to destroy or damage a drone. Just because you see a drone in the sky, doesn’t mean it is coming after you. While there are exceptions to the law, taking action (even if legally justified) does not mean you are “scot-free.” Not only could you find yourself facing a criminal investigation but civil penalties as well.
Because “droning” is relatively a new hobby, it will take time for laws to catch up. in the meantime realize the hobbyist controlling the drone is most likely just taking the toy out for a quick spin. If the drone makes you uncomfortable notify the proper authorities.