Learn what to do when police show up at your door in Texas

5 Things You Should Know When Police Come to Your House

Unless no one likes you and you have no friends, you’ve probably enjoyed a great house party at some point in your life. It doesn’t matter whether it was a house warming party, your vacationing parents accidentally left you home alone, or one of your friends told all the strangers at the bar that the after-party’s at your place. Occasionally, parties get a little out of hand and the unthinkable happens after someone pounds on the front door hard enough to knock pictures off the walls: “NOISE COMPLAINT. OPEN UP!”

Despite an immediate adrenal release, all your guests stand motionless and exchange nervous glances. Someone reaches over to turn down “Turn Down for What.” The homeowner quietly tip-toes to the peep hole to confirm the reality that everyone fears: it’s the cops! Questions race through his head.

Do I have to open the door to cops? Can they break down my door if I don’t open it? 

Flashlights shine through the blinds as the door-pounding becomes furious. “WE KNOW YOU’RE IN THERE. OPEN UP.”

Did they see us? Do I have to open it if they saw me? What if they say I have to open the door? 

The host winces as the cops dent his front door with their metal batons. Scared and confused, he opens the door and allows the cops inside his home. By opening the door, the homeowner has consented to police entry, and waived his protections under the Fourth Amendment.

This happens far too often, so I put together a short list of considerations for when cops come to your house in Texas.

  1. You have the most protection inside your home, so stay there!

Whether it’s your cell phone, glove box, body cavities, or bedroom closet, it just feels wrong when someone goes through your stuff without your permission. Recognizing the need for privacy, both the U.S. and Texas Constitutions have long protected the right of people “to be secure in their persons, houses, papers, and effects against unreasonable searches.” All searches by police must be reasonable. Unreasonable searches are illegal, which generally makes the evidence recovered through any unreasonable search inadmissible at trial.

But what makes a search unreasonable? The answer depends on where the search occurs, and the greatest protections we have against police searching are inside our homes. Courts apply the strictest standards when police officers invade a person’s house. But cops can get away with more when a person opens the door, and even more when a person steps outside, even partially through a doorway.

Warrantless Cops Outside the House

“But can’t they just open the door or kick it down?” I’m glad you asked, Kevin. Let’s see when they can legally enter your house.

  1. Cops almost always need a warrant to enter your home.

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.”

Unless one of the rare exceptions applies, cops need a warrant based on probable cause that has been signed by a judge before they can enter a person’s house. Warrantless searches in the home are presumptively unreasonable. In other words, courts initially view that police entry/searches are unreasonable and illegal if the cops didn’t get a warrant first. Practically speaking, this means that if the cops bust into a house party without a warrant and recover evidence (drugs, dead bodies, drunk minors, etc.), the judge probably won’t let them use the evidence against the homeowner.

If cops come to your home, you don’t have to talk with them. But if you choose to address the officers, ask them if they have a warrant. I’ve never heard of a house-party or noise complaint warrant, but if they say they have one, tell them to slide it under the door or hold it up to a window so you can verify that they have one.

If cops say they have a warrant, ask to see it through a window or under the door.

If cops say they have a warrant, ask to see it through a window or under the door.

Remember: at your front door, a warrantless cop can do no more than a citizen can do, which leads us to the next point.

  1. If they don’t have a warrant, you don’t have to talk to them or open the door.

The United States Supreme Court and the Texas Court of Criminal Appeals have both recognized that homeowners don’t have to talk to cops or answer the door if they don’t have a warrant:

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.”

You don’t have to talk with the police. When you do decide to talk with cops, you begin to give them evidence that can be used against you. Rare are police reports or arrest videos where someone gives the golden answer to police questioning: “I don’t answer questions without my lawyer.” This answer invokes your rights, minimizes evidence, and cannot be taken as evidence against you (even though it feels like it might). So again I repeat: You don’t have to talk with the police.

You also don’t have to open the door to a warrantless cop. When you do, they might take it as an invitation to enter the home, leading to an argument later about whether the cop had consent to enter. Instead, keep the door closed/locked, turn down the music, and wait for them to leave.

Can the cops come inside?

Just wait it out, Kevin!

  1. But cops might be able to enter if there are “exigent circumstances.”

Cops have very limited authority to arrest people inside their homes without a warrant:

“An officer making an arrest without a warrant may not enter a residence to make the arrest unless: (1) a person who resides in the residence consents to the entry; or (2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.” Tex. Code Crim. Proc. 14.05.

There are only two options: a resident’s consent and exigent circumstances. “Exigent circumstances” is the legal term for some type of immediate emergency that reasonably requires the police to enter without a warrant because there is no time to get one.

Since Kevin is about to get his fingers bitten off by the Wet Bandits, this might be a valid exigency that would allow cops to enter a house without a warrant

Since Kevin is about to get his fingers bitten off by the Wet Bandits, this might be a valid exigency that would allow cops to enter a house without a warrant

Texas courts recognized three exigencies in a recent case:

“Exigent circumstances justifying a warrantless entry include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; 2) preventing destruction of evidence or contraband; and 3) protecting the officers from persons whom they reasonably believe to be present and armed and dangerous.”

Noise complaints by themselves are not an “exigent circumstance,” so they cannot support a warrantless entry by police. When cops smell marijuana or see kids drinking, officers often try to use the “destruction of evidence/contraband” exigency as a way to justifiably bust into a house party. However, courts have held that the smell of freshly burned marijuana is not enough, by itself, for a warrantless entry:

“In Steelman, we held that the odor of marijuana alone is not enough to allow officers to conduct a warrantless search. This is because it is clear under both United States constitutional law and Texas constitutional law that a warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances.”

Enjoy those munchines, Kevin.

Enjoy those munchies, Kevin.

  1. Letting the cops inside is consent to entry, which waives many rights.

The fastest way to waive your rights is to open the door and invite officers inside your home. Consent to their entry waives all of your protections and grants the officers a temporary right to snoop. Anything the see/hear/smell inside after allowing them inside is fair game. Also, consent doesn’t have to be from the homeowner—it can be from anyone who the cops reasonably believe to be a resident.

Cops can get consent to enter from anyone that could be reasonably mistaken for a resident.

Fuller let the cops inside the house and then went upstairs to wet the bed. Typical Fuller.

Don’t consent to any search of the house even if you have nothing to hide. In fact, don’t open the door at all until you see a warrant. But even if the cops do violate the law or come inside when they shouldn’t, don’t resist or try to run away. Resisting or running will make your case much worse, and it could be dangerous. Instead, ask for a lawyer as soon as possible and let your attorney fight for you in court.

If you’ve been arrested, you need an attorney who is ready and willing to fight for you. Call Fort Worth Attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.

Texas DWI Law and Defenses

New Trick to Beat a Texas DWI?

After Getting Pulled Over for DWI in Texas, Will Chugging Liquor Help Your Case?

When it comes to beating a DWI charge, a wide variety of untested strategies float around internet forums awaiting suggestible readers. An older example is the “stuff your mouth with pennies” trick, which would supposedly beat a breathalyzer every time. Another is masking the odor of alcohol with mustard packets, which Ludacris recommends you keep in your car at all times.

But the newest “DWI-Hack” involves chugging liquor after getting pulled over and has gained some traction recently. The scenario I’m given usually goes like this:

What would happen if a drunk person got pulled over, jumped out of the parked car with an unopened bottle of their favorite liquor, opened it in front of the officer, and chugged as much as they could before the cop stops them? If they drink enough of it quickly, then there’s no way the cops can prove that person was intoxicated while driving, right?!

Chugging Liquor During Texas DWI Stop

Chugging liquor after being stopped for a Texas DWI: an infinitely stupid idea.

I always ask them if they want the short answer or the long answer. Here’s the short answer to the “liquor chugging” question above: chugging liquor in front of cops is always a bad idea. Below is the expanded answer, which (1) discusses why the scenario above presents a number of interesting issues in criminal law; and (2) offers some ways to give yourself a stronger chance in court after a DWI arrest. Spoiler alert: they don’t involve guzzling booze in front of police.

The Burden of Proof and Elements of DWI.

Here’s why the scenario above presents (at least a theoretical) challenge to the prosecutor on proving all the elements of Driving While Intoxicated. In every criminal trial, the prosecutor must prove every single element of the charged offense beyond a reasonable doubt. Section 49.04 of the Texas Penal Code lists the elements of DWI that the prosecutor must prove beyond all reasonable doubt. The prosecutor must offer sufficient evidence to show that, on or about a certain date, a person:

  1. Was intoxicated
  2. While operating
  3. A motor vehicle
  4. In a public place.

If the prosecution fails to prove any one of the elements above, then the jury or judge must acquit the defendant of the charge.

I will briefly discuss elements 1, 3, and 4 before discussing the focus of this post, which surprisingly is element 2. First, the “intoxicated” element requires the prosecutor to prove that (1) the defendant had a blood alcohol content of .08 or greater; or (2) the defendant did not have “the normal use of mental or physical faculties” because of alcohol, drugs, or a combination of any substances. This element is very important for most cases, so I’ll save the detailed discussion of the “intoxicated” element for another post. Remember: a BAC of .08 or higher is not always necessary to be convicted of DWI. The statute allows a conviction to stand on drugs alone—even legally obtained prescription drugs. Therefore, it may not be a good idea to list off a plethora of (or any) medications you are currently taking.

Remember: you have the right to remain silent even if you’re not under arrest. Check out another one of my posts if you want to learn about your constitutional rights when interacting with police. Now let’s look at the “while operating” element in greater detail.

Chad Bradley’s DWI Life-Hack: Chug Fireball Whiskey!

For the remainder of this post, we’ll assume that the person in the liquor-guzzling hypothetical above is Chad Bradley, who was driving down West 7th Street in Fort Worth (a “public place” under § 49.04) in his 1999 Geo Metro (a “motor vehicle” under § 49.04). On the way home from Chummy’s last Friday, Chad rolled through a stop sign and a few seconds later saw those heart-stopping blue and red lights flash in his rear-view mirror. He had several drinks shortly before leaving the bar but wasn’t sure if he was intoxicated at that point. After pulling over, Chad turned off his car and looked down at the unopened bottle of Fireball Whiskey that he kept in his car for party-related emergencies.

Don't chug liquor after being stopped for DWI

Chugging liquor after being pulled over: a way to guarantee things will go badly.

Chad remembered reading a post from an online forum that discussed a secret way to beat a potential DWI conviction: after pulling over, crack open a bottle of liquor and chug it like it’s going out of style. With his bottle of Fireball staring back at him from the passenger seat, Chad was ready to become a legend. As the officer approached, Chad calmly exited his Geo, winked at the officer, and guzzled down almost half of the bottle. Feeling cocky, Chad said “Good luck proving how many margaritas I had after that, sucker!”

Let’s examine the good and bad facts, starting with the good facts. By drinking liquor after he had operated the car, Chad created, in theory, a small problem for his prosecution on proving that he was intoxicated “while operating” the motor vehicle. There’s no doubt he’ll be drunk in a few minutes, but how can a prosecutor prove that Chad was intoxicated while operating the car? 

On these limited facts, Chad might argue that the prosecutor can’t prove that he was intoxicated while operating his Geo Metro. In other words, there might be a reasonable doubt as to whether he was drunk while driving or just really drunk after he had pulled over, parked, and turned up a bottle of cinnamon whiskey. He could argue that he’s only guilty of a Public Intoxication charge after the stop but certainly not a DWI. Remember: the burden of proof always remains on the prosecutor to prove every single element of a criminal offense beyond a reasonable doubt. Chad also might argue that the arresting officer only observed indications of intoxication due to the liquor he had quickly consumed after the operation of the Geo Metro was already completed, thereby requiring dismissal of the DWI charge or an acquittal at trial. Armed with this great theoretical argument, Chad is in the clear, right?

Wrong! Let’s look at the bad facts. First of all, Chad got out of the car, winked at the officer, and then chugged liquor. Disrespecting police officers never helps a person’s case, even if the officer is being a jerk. Chad clearly has not seen Chris Rock’s video “How to Not Get Your Ass Kicked by the Police”:

 

 

In the video, Chris Rock shows many ways to not get beat up by the police, but all of them emphasize being polite to cops and using your common sense. Even if the officers aren’t offended, they will definitely not forget Chad for his stunt. Being memorable during an arrest is never a good thing on a DWI case.

The officers might have an easier time getting a blood warrant on these facts, and his BAC would be through the roof after knocking back half a bottle of Fireball. Even if they don’t get Chad’s BAC, the prosecutors could still argue that Chad was not in control of his mental or physical faculties since he did something so ridiculous under the circumstances.

More importantly, Chad’s statements can be used against him, and a prosecutor may argue that Chad admitted consuming multiple margaritas, which is damaging evidence at trial. Additionally, if Chad’s case does go to trial, a jury may be offended by his behavior, especially because they might view it as a waste of their time since no sober person (with good sense) would do something like that.

Lastly, we all know Chad can’t handle his liquor when he drinks Fireball, so all of his exponentially inebriated behaviors afterwards will be filmed, which results in more damaging evidence. In sum, Chad’s Fireball guzzling stunt would create an entertaining arrest video but probably would not help his case. If you must chug cinnamon-flavored whiskey, do it in the safety of your home where your friends can film you (instead of the police).

Nic Butts making a bottle of Fireball disappear

What To Do After You’ve Been Pulled Over Instead of Chugging Liquor

Regardless of why you’ve been stopped, pull over quickly and safely, and turn off the car. Put the keys on your dashboard, turn on your interior lights, and put your hands on the steering wheel while you wait for the officer to approach. Hidden hands alarm police officers during traffic stops. Wait for the officer to ask for your license and insurance before moving your hands from the steering wheel. If asked, “Do you know why I pulled you over?” you shouldn’t offer guesses on why the officer pulled you over.

Remember: you are being filmed and recorded in almost all interactions with police. Don’t obstruct, resist, argue, beg, or verbally abuse cops, even if you think they deserve it. A jury may see the video, and it’s much harder for them to get on the bandwagon of a jerk. Let your attorney fight for you in court. Remember: the right to remain silent is a legal right. You have to tell the officer your name, DOB, and address, but if asked any questions about drinking, you should ask if you are free to leave. If the officer says no, you should ask for an attorney before answering any more questions and remain silent after. Telling a cop what bar you came from and how many drinks you had are detrimental pieces of evidence at trial.

Officers might ask you to perform several field sobriety tests, such as the Horizontal Gaze Nystagmus test (eyes-following-the-pen test), the Walk-and-Turn test, and the One-Leg Stand test. If you’ve been drinking to intoxication and get pulled over, respectfully refuse to perform all field sobriety tests. Also, don’t give officers a breath test or consent to any blood tests. Politely request to speak with an attorney before answering any questions or performing any tests. Refusing sobriety tests will probably result in your arrest and your license getting suspended; refusals can also can be used as evidence against you. These are some of the risks you must recognize when deciding on refusal. Even so, these tests are designed to make intoxicated people fail, so attempting them while intoxicated probably won’t be beneficial to your case. Lastly, do not consent to any search—even if you have nothing to hide.

If you’ve been arrested for DWI or other intoxication crimes, you need an attorney who is ready and willing to fight for you. Call Fort Worth Attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.

Bieber-Arrest

Things Not to Say to Police: 6 Lessons from Justin Bieber’s Arrest

Love him or hate him, we all know Justin Bieber. This infamous bad-boy musician may have finally established his street cred by landing himself in a pair of handcuffs last Thursday for DUI and resisting arrest. The scrappy Canadian was particularly antagonistic to the arresting officers, so I thought that a brief analysis of his police report would illustrate what NOT to do when interacting with police. Let’s pretend that he pulled this stunt in Texas and learn a few lessons on how to act if you get pulled over. Below, I’ve selected some choice excerpts from the arresting officer’s police report and then discussed how the Biebs could have handled himself differently.

Excerpt #1

“[THE POLICE OFFICER] ASKED [JUSTIN] TO PLACE THE VEHICLE IN PARK. AT THIS TIME, [JUSTIN] BEGAN TO STATE: “WHY DID YOU STOP ME?” [JUSTIN] STATED: “WHY THE F*** ARE YOU DOING THIS”?”

Here’s his first mistake: he initiated confrontation with the officer. When you get pulled over, you need to remember that cops have unlimited discretion to do as they please. If you give an attitude to them, expect to get an attitude in return. No matter how you feel about cops, always treat them with respect.

If officers ask you to get out of your car, ask if you’re free to leave. If they say ‘no’, then ask to speak to an attorney before you say anything else.

Excerpt #2

“[THE POLICE OFFICER] ASKED [JUSTIN] TO NOT GO INTO HIS POCKETS FOR [HIS] SAFETY. . . . [THE POLICE OFFICER] ASKED [JUSTIN] TO PLACE HIS HANDS ON HIS VEHICLE IN ORDER TO FACILITATE A CURSORY PATDOWN FOR WEAPONS. [JUSTIN] STATED: “WHAT THE F*** DID I DO, WHY DID YOU STOP ME?”

Many officers will agree that traffic stops present the biggest threat to their safety because they never know if the driver or passengers are dangerous. Quick movements, reaching under your seat, or putting your hands into your pockets will all increase the sense of danger in the officer’s mind.

A few things will help. First, turn off the car and put the keys on top of the dash. Keep your hands on the wheel at 10 and 2, and tell the officer where your hands are going before reaching for anything. For example, say, “Yes officer, my insurance card is in my glove box, so I’m going to reach for it right now,” before you begin to move your hands towards the glove box. If it’s night, turn on the inside light. The cop will appreciate all of this.

And don’t ever say “what the f*** did I do?” (See mistake #1 above).

Excerpt #3

“[IN RESPONSE TO A REQUEST FOR A CUSORY PATDOWN, JUSTIN SAID HE] AINT GOT NO F***ING WEAPONS, WHY DO YOU HAVE TO SEARCH ME, WHAT THE F*** IS THIS ABOUT?”

The Biebz had the right idea here: you should never consent to a search. If the officer reasonably senses danger (like a suspect putting hands in his pockets), the officer may be able to legally pat you down. All pat downs and searches by law enforcement are subject to the 4th Amendment, which excludes evidence if the search was unreasonable. Still, a better way to respond without the f-word is “I do not consent to any searches, but I will not resist.”

Excerpt #4

[JUSTIN] BEGAN TO RESIST [THE POLICE OFFICER] BY PULLING HIS RIGHT ARM AWAY AS HE STATED: “WHAT THE F*** ARE YOU DOING.”

Don’t. Ever. Resist. You are being recorded, and if that video ever ends up in front of a jury, you’ll look like an ass (even if the arrest was illegal). Let the video show you being respectful instead of abrasive, then let your attorney fight back in the courtroom.

Excerpt #5

WHILE EN ROUTE TO THE STATION, [JUSTIN] INQUIRED AS TO WHY HE’D BEEN ARRESTED.

All statements can be used against you in a court of law. Based on Justin’s statement here, a prosecutor could mention in his or her closing argument that the defendant had already forgotten why he was arrested. Whether or not that’s true is irrelevant; it’s still a point against him.

After you’ve been arrested, invoke your right to silence and to have an attorney. Practically speaking, this means, “I’d like to speak with my attorney before answering any questions.”

Excerpt #6

[JUSTIN] DID NOT PERFORM [FIELD SOBRIETY TESTS’] TO STANDARDS. [JUSTIN] LATER AGREED TO A BREATH TEST AS WELL AS A DRUG EVALUATION.

Although the report is unclear here, it seems that the Biebster attempted (and failed) a breathalyzer and field sobriety tests. If you want to see why this is a bad idea, try standing on one foot for thirty seconds. Tough, isn’t it? Now imagine doing that with your heart racing while flashing lights disorient your vision as you’re surrounded by a pack of attentive police officers hungry for an arrest.

If you’ve been drinking, don’t perform these sobriety tests. Also, don’t consent to any breath or blood tests. Politely request an attorney instead. A refusal may result in your license getting suspended and can be used as evidence against you. Even so, that’s better than a slam-dunk case for a prosecutor.

If you find yourself in a similar situation as Justin Bieber, contact Bryan E. Wilson, the Texas Law Hawk and have him fight for your rights.