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).
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.
- Freedom of Speech: you can say what you want.
- Freedom of Assembly: you can protest if you want.
- Right to Bear Arms: you have the right to own a gun (exceptions apply)
“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.
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.
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.
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.
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.
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.
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.
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.