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.

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Q&A on Governor Rick Perry’s Indictment and Ham Sandwiches

In a surprising turn of events, Texas Governor Rick Perry was recently indicted by a grand jury for felony charges of abuse of power and coercion. Let’s learn about Texas grand jury indictments and see what this means for Governor “Good Hair” Rick Perry.

1. What is a Texas grand jury?

In Texas, a grand jury is a panel of 12 county citizens selected by either a district judge or jury commissioner. Like regular jury members, each must meet strict qualifications such as being able to read and write. Grand jurors cannot be felons, nor can they be convicted of or under accusation of theft. Once the grand jurors are assembled, they are sworn in before any grand jury proceedings can begin.

2. What does a grand jury in Texas do?

Instead of deciding on guilt or innocence at trial, grand juries are assembled long before any trial occurs. Once assembled, a grand jury reviews evidence to determine if someone should be charged with a crime, and if so, what crime(s) should be charged. Texas law has made grand jury proceedings notoriously secretive to protect grand jurors from influence or danger, and also to protect people under investigation for felonious conduct who are later exonerated of any wrongdoing. The secretive nature of grand jury proceedings is the reason that few people heard about these allegations against Rick Perry before he was actually indicted.

Texas Grand Jury

A prosecutor will present evidence to the grand jury by calling witnesses and presenting documents. The grand jury can also subpoena witnesses if they desire. Defense attorneys have no general right to attend the hearings, but sometimes the prosecutor will consent to a defense attorneys presenting their version of the facts. After hearing the evidence, the grand jury makes the final decision on whether a person should be charged.

3. What does it mean to be indicted on a crime?

After hearing the evidence presented, a grand jury will vote on whether to indict a person. If 9 or more of the 12 jurors cannot collectively agree that adequate grounds for prosecution exist, then the person under investigation is not charged with a crime. Instead, that person is “no-billed,” which means he or she is not charged with a crime.

However, if 9  or more out of the 12 grand jurors agree that a person should be charged with an offense, then the grand jury foreman will sign and return a “true bill” indictment, which is a legal instrument that officially charges someone with a crime. The indictment itself is usually brief and does not need to contain the specific evidence that the grand jurors found persuasive; Governor Perry’s two-count indictment only took up two pages. Though short in length, many indictments contain defects that attentive defense attorneys can attack by using a “motion to quash.”

4. Is it easy to be indicted by a grand jury?

There is a saying that any halfway decent (or unethical) prosecutor can get a grand jury to “indict a ham sandwich.” This expression comes from the idea that it is not hard to get a grand jury to indict someone.

Indict a Ham Sandwich

Can you indict my ham sandwich with mustard instead of mayo?

The amount of proof necessary for an indictment is far lower than the amount of proof necessary for a conviction. All the grand jury needs to find is “probable cause” to believe Rick Perry committed the crimes. Here is a scale to illustrate some burdens in the law:

Texas Burdens of Proof

  • “Reasonable suspicion” is the amount of proof necessary to pull someone over or detain them momentarily; this is lower than the “probable cause” standard below, but requires more than just a “hunch” that someone committed a crime.
  • “Probable cause” means “sufficient specific articulable facts and circumstances” that would lead a reasonable person to believe Rick Perry committed a criminal offense. This threshold is the amount of evidence necessary to arrest someone or search their house and car.
  • “Preponderance of the evidence” simply means “more likely than not” so you can think of it like the 51-yard line on a football field. This is the amount of proof necessary to sue someone in civil court and empty their bank accounts to pay for damages.
  • “Clear and convincing evidence” is an amount of proof “that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations.” This is the amount of proof necessary to take away someone’s children, but still less than beyond a reasonable doubt.
  • “Beyond a reasonable doubt” is the highest standard recognized in Texas law, but is left undefined by the statute. This standard is so incredibly high because it is the amount of proof required to find someone guilty of an offense and potentially take away their freedom. The presumption of innocence is a constitutional guarantee that protects us from any accusations until the government proves their case beyond every single reasonable doubt.

As you can see, the standard is fairly low on the scale of burdens in our legal system. Also, the rules of evidence do not apply in grand jury proceedings, which makes the burden even easier for prosecutors to get a “true bill.”

5. What happens now that Governor Rick Perry has been indicted?

After an indictment, a person has been officially charged with a crime. Like any other indicted person, Rick Perry had to turn himself into authorities, get booked into jail, and post bond. In his case, both the prosecutors and defense attorneys agreed that Rick Perry isn’t going to flee the country, so they agreed to a personal recognizance bond, which allows him to be released without posting a bond as long as he returns for his future court date. Unless the indictment is quashed or the prosecutors agree to a dismissal, Governor Perry must face the charges against him.

6. What crime was he charged with?

Rick Perry has been indicted for violating § 39.02(a)(2) of the Texas Penal Code in count one, which is “Abuse of Official Capacity.” Because the statute has increasing levels of punishment depending on the value, this charge is a first degree felony since he the allegedly misused funds are more than $200,000. First degree felonies are punishable by 5-99 years in jail and up to a $10,000 fine.

Court two of the indictment alleges that Rick Perry violated § 36.03(a)(1) titled “Coercion of a Public Servant or Voter.” This is a third degree felony, so if he is convicted of this count, he will face a punishment of 2-10 years and up to a $10,000 fine.

However, even if convicted, an extended jail sentence is unlikely since the Governor probably doesn’t have a long criminal history, if any. Here are the indictments against Governor Rick Perry:

Rick Perry Felony Indictment

Rick Perry Felony Indictment page 2

7. Why was Governor Perry charged with these crimes?

Depends on who you ask. Here are the objective facts that both sides will probably agree on:

In April of 2013, Travis County District Attorney Rosemary Lehmberg was arrested for Driving While Intoxicated and subsequently convicted of the same. She served her sentence and returned to work in her elected position as the D.A. Rick Perry expressed his desire that Mrs. Lehmberg resign from her position. She did not resign. Subsequently, Rick Perry vetoed $7.5 million of funding that would have otherwise gone to the Public Integrity Unit; he indicated that the reason for the veto was related to Mrs. Lehmberg’s refusal to resign.

Supporters of Perry will argue that this is a cheap political move to cancel out Governor Perry’s prospect as a potential presidential candidate. People who are less fond of Rick Perry will argue that the grand jury had no motive whatsoever, and at least 9 of the 12 agreed that Governor Perry committed two felonies after listening to all of the evidence presented.

8. What defenses can he use?

Rick Perry has many defenses available. Defenses can generally be separated into factual and legal defenses. Factual defenses contest what actually happened (the facts), while legal defenses argue that the law will not allow charges to continue.

Indictments occur at an early stage in the criminal process, so right now Governor Perry is limited to legal arguments. Almost immediately, Governor Perry’s attorneys filed a pretrial writ of habeas corpus, arguing that the indictment should be dismissed for many reasons, some of which have some validity. For example, the second charge on the indictment did not negate a statutory exception, which is a requirement under Texas law. However, even though some of their arguments have merit, it is rare to have an indictment dismissed with a habeas petition this early. He may have to wait for a motion to quash the indictment before a court will consider most of his legal and factual defenses.

9. Will Governor Rick Perry be convicted?

It is far too early to tell because no one knows the full story at this point except the grand jury and prosecutors. But if we assume that the evidence presented is just Governor Perry’s veto and commentary about Mrs. Lehmberg, then he is unlikely to be convicted of anything for several reasons.

From a legal standpoint, Governor Perry has a strong separation of powers argument and may win an argument that the statute is unconstitutional as applied. At this point, it appears that the basic facts are largely undisputed, so the trial may become a pure public policy argument. However, I believe it is highly unlikely that this case will actually end up in front of a jury.

Get ready for the 2014 Great Warrant Roundup in Texas!

YeeHaww! Here Comes the 2014 Great Warrant Roundup!

Many people with old tickets or unresolved misdemeanor charges have received notice of the upcoming the “2014 Great Warrant Roundup,” and huge billboards give the following warning: “GREAT WARRANT ROUNDUP: PAY YOUR FINE OR GO TO JAIL.” With letters large enough to give you a headache, the billboard leaves its reader with only two options: (1) pay your fine; or (2) be arrested and taken to jail. This blanket statement is terrible advice to give everyone and an inaccurate statement of the law depending on the type of warrant. Therefore, I wanted to help out people who have some old warrants, tickets, or unresolved misdemeanors.

Here comes the 2014 Great Warrant Roundup in Texas!

Here comes the 2014 Great Warrant Roundup in Texas!

All across Texas, the Roundup will begin on March 1st and continue through March 9th. The purpose of the Roundup is to bring in as much revenue as possible for unresolved Class C misdemeanor warrants (for example, tickets related to speeding, no seatbelt, etc.). Practically speaking, this means that police officers will be (1) targeting people with old misdemeanor warrants that may otherwise be ignored; and (2) making substantially more arrests than usual. Officers across Texas have warned that they will arrest people at their homes and jobs if they don’t pay the fines, but paying the fine is the last thing you want to do with most warrants.

There are many types of warrants, but the Roundup focuses on two: capias warrants and alias warrants. Capias warrants are issued when a person does not comply with court orders. A common example is when someone enters into a plea agreement but then fails to follow the payment plan. The billboard is correct that these fines should be paid since there is already a conviction.

However (and this is a big however), alias warrants should not be paid in full. Alias warrants are issued when a person fails to respond to a citation or show up for court. If there has not yet been a plea of guilty or no contest entered, an attorney can help you post bond and lift the warrant, which gives you another chance to plead not guilty. On the other hand, paying the fine on an alias warrant results in a conviction for that offense.

A conviction for a Class C misdemeanor may seem insignificant because there is only a maximum of a $500 fine and no jail time, but there are many other consequences that result from paying fines instead of contesting the charge. Some of these consequences include:

  • Permanent conviction on your driving record
  • Higher insurance rates
  • Points against your DPS driving record
  • Suspension of your driver’s license
  • Yearly surcharge payments to keep license valid
  • Future arrest for driving while license suspended or invalid

Therefore, paying the fine is rarely the best option to resolve misdemeanor warrants, so don’t take the billboard’s advice without first consulting an attorney. The 2014 Great Warrant Roundup is coming soon. Get an attorney who can give you another chance and fight back.

If you have warrants, call Attorney Bryan E. Wilson at (817) 454-5965 and get the Texas Law Hawk on your side today.