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Criminal Attorney – Recording the Police, Dos and Don’ts.
In Texas you are legally allowed to record police encounters as long as you do not interfere with their work (a.k.a. interfering with public duties). Police may harass you, detain you, or try to intimidate you, but they can not arrest you for merely recording them. Recordings have exonerated many people, and often times is the only available, credible evidence.
Criminal Attorney – Don’t: Share your recording with the police.
You are not legally required to do so.
Criminal Attorney – Do: Respond politely, but firmly to police questions.
Officer: “What are you doing?” or “Stop recording, it’s against the law.”
Response: “Officer, I am exerting my 1st Amendment right to record?”
Texas, for example, is a one-party state. Meaning permission to record is only needed by one-party. You are that party.
Don’t Respond: “Making sure you are doing your job right?” or “I don’t trust you.
Criminal Attorney – Do: “Stand Back.”
If you’re approaching the scene of an investigation or an accident, police will likely order you to move back. While you do have a right to be there, you don’t want to interfere with police investigations. Keep an appropriate distance.
Criminal Attorney – Do: Understand when you have to show your I.D.
Officer: “Let me see your I.D.”
Response: “Officer, are you detaining me, or am I free to go?”
If you are being detained, I.D. yourself. If the officer does not have reasonable suspicion to believe you are involved in criminal activity, and is not detaining you, you do not have to show him identification. You can either leave or hold your ground. But…
Do: Know when to walk away.
Officer: “Shut it off or I’ll arrest you”.
At this point you are risking arrest in order to test the boundaries of free speech. If police say they’ll arrest you, believe them. It may not be a lawful arrest, but that hasn’t stopped police before.
If you keep recording, brace yourself for arrest. If you are arrested, don’t resist. As with any arrest, you have the right to remain silent until you speak with a criminal attorney. Contact your criminal attorney as soon as possible.
Do: Understand the 1st Amendment.
Officer’s may try and trick you into believing the 1st amendment -right to record – only applies to mainstream media journalist. It doesn’t.
As with many police encounters your attitude can make the difference in whether you will soon be required to post bond. Understand your rights and understand how to assert them.
Texas Criminal Defense and Police at your Home:
There is no greater protection to police searches and seizures than in your home. Understanding how to exercise those protections is crucial to prevent unwanted and unnecessary intrusions.
The police are at my door, what should I do?
You have a few [good] options:
1) With the door remaining closed, ask “How can I help you ?”; or
2) Crack the door open and ask them “How can I help you?” through the door-lock opening; or
3) Don’t answer the door and they should eventually leave, unless they have a warrant.
The police may be there because they need assistance with a matter unrelated to you. Asking them “How can I help you?” will assist in learning the officer’s objective.
The police say they want to come into my house?
The short response is no. Not without a warrant. If the police say, “If you don’t let us in, we will go get a warrant”, then tell them go get a warrant. Until they show you a valid warrant, you shouldn’t allow them into your home.
The police are at my house with a warrant, do I have to let them in?
Yes. If you haven’t already, now would be a good time to call your Texas criminal defense attorneys.
Can officer’s lie to try and get information?
Yes. Legally, officers can and do lie to gain evidence. Many times officer’s do not have probable cause to arrest you. They ask questions, hoping you will gift wrap the probable cause they need. Knowing your rights will help prevent your words from getting twisted around and landing you in the back of a police car. Remember you have the right to remain silent. Request your Texas criminal defense lawyers. Be Firm.
What are some common things officer’s say to get information?
“Just cooperate with us and we will let you go.”
“If you tell us [what they want you to tell them], you will get out of here quicker.”
“We can ensure you get a good deal.”
“We have evidence that contradicts everything you just said.”
“That is not what [other person] said, tell us the truth.”
“What are you trying to hide?”
“You don’t need a lawyer, unless you are guilty.”
Can your roommate consent to a search of your home?
It depends on whether you are home or not.
If you are NOT home:
As a general rule, police can obtain consent to search from anyone with control over the property. If your roommate has a key or his name is on the lease he can give consent to a police search.
If you are home:
If your roommate consents to a search, you can object to the search and prevent the police from entering (unless they have a warrant). Simply state, “I do not give consent for you to search my home.” If the officer says he has a warrant, ask to see it. If the officer has a valid warrant, call your Texas criminal defense attorneys.
Can my landlord give consent?
Courts have held during a lawful tenancy a landlord cannot give officer’s consent to enter and search the tenant’s room.
What can I do to protect myself from a search of my room?
To maintain your expectation of privacy, keep your room locked, while maintaining control over your personal space. If your room is off-limits to roommates and friends, then it is off-limits to the police. If your room is the party room, then the police are going to treat it as such.
Texas Criminal Defense and Police at your Office:
The police are at my office, what should I do?
CALL YOUR TEXAS CRIMINAL DEFENSE ATTORNEYS.
With your Texas criminal defense lawyers on the phone ask them, “How you can help them?”
The police may be there because they need assistance with a matter unrelated to you. Asking them “How can I help you?” will assist in learning the officer’s objective.
The police say they want to search my office?
The short response is no. Not without a warrant. If the police say, “If you don’t let us in, we will go get a warrant”, then tell them go get a warrant. Until they show you a valid warrant, you shouldn’t allow them into your office or allow them to search your office.
The police are at my office with a warrant, do I have to let them in?
Yes. If you haven’t already, it would be a good time to call your Texas criminal defense attorneys.
10 Street Commandments
1) I will ask “Am I free to leave?”
2) If I am free to leave, I will leave.
3) If I am not free to leave, I will ask “Am I being detained?”
4) If I am detained, I will ask “Am I under arrest?”
5) If I am detained or under arrest I will remain silent.
6) I will refuse all searches (including field sobriety exercises, breath, blood tests, etc.).
7) I will request to see a warrant.
8) I will request an attorney.
9) I will be polite, but firm and not fall victim to police intimidation or deception.
10) I will record.
The Myth Surrounding Miranda
As a criminal lawyer, a common client remark is “…I wasn’t read my rights.” Contrary to popular belief the truth is the officer only has to read you your rights if: (1) you have been placed under arrest, AND (2) you are about to be questioned for a crime. For example, if you consent to a search, drugs are found, and you are arrested, police do not need to read you your rights. Any additional information you volunteer can and will be used against you.
The courts have made clear that police do not have to tell you about your right to refuse searches. Also, an officer does not need to get your consent to search in writing; oral consent is completely valid.
Fortunately you understand this. In the example above you refused to allow the search and asked the officer if you are under arrest. After being told you are being detained, you told the officer, “I refuse to answer any questions without my attorney present.”
Read more about Miranda.
The Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop.
Police can walk a drug dog around the vehicle during any legitimate traffic stop. If the dog signals that it smells drugs, police then have probable cause to conduct a search.
However, and this is a big however, the police are not allowed to detain you indefinitely while waiting for drug dogs to arrive. That Supreme Court held a detention of 7-8 minutes to wait for a drug dog to arrive violated the fourth amendment.
Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect. So if you’re pulled over and police threaten to call in the dogs, do not give in and consent to a search. By the time the drug dog arrives, it will have been an unreasonable detention in violation of the fourth amendment and your lawyers can suppress any unlawfully obtained evidence.
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.
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?
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
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).
A DWI arrest and conviction can carry stiff repercussions and harsh financial penalties. That’s the bad news, the good news is you can fight the DWI!
If you have been arrested for DWI and submitted to a breath test, there are many factors that may have caused an elevated result.