Would this be legal in Texas?

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cb1000rider
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Re: Would this be legal in Texas?

#16

Post by cb1000rider »

The Annoyed Man wrote: Is it legal in Texas for an LEO to threaten a homeowner with destruction of his property and killing of his pets if they have to come back with a warrant? I actually have a dog in this fight, so to speak.
I can tell you that in my local jurisdiction the threat was "let us search the car or we're going to hold you here until we can locate the drug dog, which is at least an hour away"...
Not quite the same, but obviously it's a little cohersive.
I should mention that this experience was the one exception in about 10 years and not the rule.
I caved and let the search. I found out later that courts have ruled on how long they can hold people "reasonably" during a traffic stop.

They can say anything they want.... I agree with above, get it on camera and then discuss it with their department or local media.

Honestly, if they're chasing a felon and they saw that person enter my house, I'm letting them in.
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Re: Would this be legal in Texas?

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I think that in addition to filming, I'd call 911 and report that men claiming to be police officers are threatening to break into my home and kill my dogs, and request immediate assistance.
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Re: Would this be legal in Texas?

#18

Post by rtschl »

Not to go far from OP... but the same thought about legality occurred to me regarding the door to door search for the Boston bomber suspects. They weren't in pursuit. So could a citizen have refused them entry?

I agree about calling 911 to report being threatened.

Ron
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Re: Would this be legal in Texas?

#19

Post by VMI77 »

rtschl wrote:Not to go far from OP... but the same thought about legality occurred to me regarding the door to door search for the Boston bomber suspects. They weren't in pursuit. So could a citizen have refused them entry?

Ron
I would have. They would have had to physically remove me if they wanted me out. I wouldn't physically resist other than laying limp on the floor.
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The Annoyed Man
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Re: Would this be legal in Texas?

#20

Post by The Annoyed Man »

cb1000rider wrote:Honestly, if they're chasing a felon and they saw that person enter my house, I'm letting them in.
Me too. I'd be happy to let them in if that were the case. But if I'm home, and the doors and windows are all closed and locked (that's how I keep them) and I've got a very territorial Boxer/Lab mix on the loose in the house (the dog I have in the fight I mentioned in my OP), then nobody has gotten into my house without alerting me. So, their claim to have seen the BG enter my house has to be corroborated by what I know to be true, from inside my own house, or I'm not buying any of their crazy. If I see a back door kicked open or a broken window, and a dead dog on the floor, then I'm inviting the police in, and offering them coffee and sammiches after they catch the guy.
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Re: Would this be legal in Texas?

#21

Post by gigag04 »

Didn't read the replies (intentionally).

If they are asked and denied consent, AND they believe that they would need a warrant to proceed, the police cannot say or do anything to coerce a consensual search, or else the consent is not given freely or voluntarily and would get tossed.

They have had a hot pursuit argument, but it doesn't seem likely. It's always better just to get the warrant. As long as you don't lie on the affidavit, judges rarely toss a search warrant that another judge has signed off as having PC to move forward.
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WildBill
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Re: Would this be legal in Texas?

#22

Post by WildBill »

There is a difference between getting a search tossed in court versus illegal behavior - which is what TAM asked.

So the search gets tossed out, the criminal walks, but the homeowner still has still been threatened and his home searched illegally.

Of course there is a civil remedy, but what are the legal [criminal] consequences, if any, for the persons performing the original illegal search?
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Re: Would this be legal in Texas?

#23

Post by srothstein »

Unlike, GigAg04, I did read the replies first. It is more interesting that way. But my answer is still the same. This is not legal behavior anywhere in the country since obtaining permission by threat is coercion. SCOTUS has long held that this voids any consent given.

The hot pursuit argument is not quite as clear, but from the description, it is clear to me that they were not in hot pursuit. I agree with WildBill that it is not necessarily the clear cut case of the guy was running and I saw him enter the house, but it is almost as close. For example, if I am searching for a robber for the first 30 minutes after he committed the crime, I can enter a lot of places in hot pursuit if I can show a valid reason for me to think he went in there, such as a jacket and hat on a porch. It does not have to prove the person went in, but should be a strong indication. The longer from the crime or the person being last seen, and the further from the crime scene, the harder this is.

I will say that this seems like a really poor choice of person to threaten like that. I don't recommend threatening or bullying anyone into giving consent, but a lawyer seems like a particularly bad choice for that activity. Even if he is not a criminal lawyer, he probably had some constitutional law classes and he knows how to look it up later for the lawsuit he wants to file.
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Re: Would this be legal in Texas?

#24

Post by bizarrenormality »

gigag04 wrote:Didn't read the replies (intentionally).
Me too. Stuff like this sounds like a good reason for a home security system that records audio and video. If I had a good video of that, I would be posting it all over the internet.

If I was a lawyer like in the original story, I would be offering high definition copies to defense attorneys representing suspects arrested by those officers.

Then I would start looking for suspects who confessed to those officers and offer to take their appeals case if they were coerced into confessing. :evil2:
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Re: Would this be legal in Texas?

#25

Post by The Annoyed Man »

gigag04 wrote:Didn't read the replies (intentionally).

If they are asked and denied consent, AND they believe that they would need a warrant to proceed, the police cannot say or do anything to coerce a consensual search, or else the consent is not given freely or voluntarily and would get tossed.

They have had a hot pursuit argument, but it doesn't seem likely. It's always better just to get the warrant. As long as you don't lie on the affidavit, judges rarely toss a search warrant that another judge has signed off as having PC to move forward.
srothstein wrote:Unlike, GigAg04, I did read the replies first. It is more interesting that way. But my answer is still the same. This is not legal behavior anywhere in the country since obtaining permission by threat is coercion. SCOTUS has long held that this voids any consent given.

The hot pursuit argument is not quite as clear, but from the description, it is clear to me that they were not in hot pursuit. I agree with WildBill that it is not necessarily the clear cut case of the guy was running and I saw him enter the house, but it is almost as close. For example, if I am searching for a robber for the first 30 minutes after he committed the crime, I can enter a lot of places in hot pursuit if I can show a valid reason for me to think he went in there, such as a jacket and hat on a porch. It does not have to prove the person went in, but should be a strong indication. The longer from the crime or the person being last seen, and the further from the crime scene, the harder this is.

I will say that this seems like a really poor choice of person to threaten like that. I don't recommend threatening or bullying anyone into giving consent, but a lawyer seems like a particularly bad choice for that activity. Even if he is not a criminal lawyer, he probably had some constitutional law classes and he knows how to look it up later for the lawsuit he wants to file.
THANK YOU! Both of you! Seriously. This is exactly what I had hoped to hear, and it restores my faith in things. This is why I had specifically directed the question to LEOs, and did not want it to degenerate into something else.
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b322da
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Re: Would this be legal in Texas?

#26

Post by b322da »

AM,

Sorry I am late, but I have been rather sickly lately.

Looks like you finally got responsive replies, but I had to go to the end of the thread to find them. Perhaps I might be a bit more responsive by citing a specific federal statute prohibiting conduct like this. I am no longer an LEO, but I was for many years, and I have been exposed to the criminal law, including the particular statute, in other employment for most of my life.

Gross police misconduct like this in my opinion amounts at least to violation of 18 U. S. Code , Sec. 241:

"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;...

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."


Of course the right secured to that homeowner is the 4th Amendment to our Constitution. I would think that the prospective punishment under the quoted statute would give a good lesson to other bullies with badges and their entire departments.

I will further observe that if we strictly limit ourselves to the facts as you originally stated them, any idea that hot pursuit might justify this conduct has been generated out of whole cloth. Contrary to some suggestions, I would suggest that this conduct is clearly unlawful. Lastly, any suggestion that the 4th Amendment protects a lawyer but not a drug dealer is the kind of thinking which so often leads to police misconduct.

Jim
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Re: Would this be legal in Texas?

#27

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WildBill wrote:
The Annoyed Man wrote:"Hot pursuit" means you (the LEO) SAW the bad guy(s) enter the abode. That was not the case in my OP. Police were looking for two guys whom they believed to be parole violators, and they were knocking on doors looking for them. They did not see the suspects enter the man's home. . . .or any other home, for that matter, or they would have obviously gone to that home directly.
You might think so, but that is not the case law.
Please cite the case law to which you refer. In my reading I find that the police cannot do warrantless searches anywhere that an individual has "a reasonable expectation of privacy". The home would certainly qualify. Therefore, the only exception would be hot pursuit, but hot pursuit requires just that. Unless the police have an articulable reason for thinking the felons are in your house, it's not hot pursuit. In TAM's description, hot pursuit is questionable at best.

With regard to the threats, those would qualify as a crime under the official oppression statutes (Texas Penal Code 39.03) unless the officers can provide a legal justification for their demand to enter the house. The statute reads "knows is unlawful" leaves a lot of room for interpretation. Perhaps it should read "is unlawful". If the officers argue in court that they thought their actions were lawful, then the opposition would have to argue that they knew or should have know their actions were unlawful. Since TAM wrote "Cops threaten to smash his property and shoot and kill his dogs if they have to come back with a warrant", the Court might interpret that as the officers having knowledge that their request was unlawful and the threat would therefore be a violation of the law.

Personally, I would be a lot less likely to allow an officer to enter my house if I perceived him to be abusive than if he politely requested entry and explained his reasons for needing to do so. No matter how much adrenaline is flowing, I expect police officers to act professionally.
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Re: Would this be legal in Texas?

#28

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gigag04 wrote:Didn't read the replies (intentionally).

If they are asked and denied consent, AND they believe that they would need a warrant to proceed, the police cannot say or do anything to coerce a consensual search, or else the consent is not given freely or voluntarily and would get tossed.

They have had a hot pursuit argument, but it doesn't seem likely. It's always better just to get the warrant. As long as you don't lie on the affidavit, judges rarely toss a search warrant that another judge has signed off as having PC to move forward.
What he said.
If they are asked and denied consent, AND they believe that they would need a warrant to proceed, the police cannot say or do anything to coerce a consensual search, or else the consent is not given freely or voluntarily and would get tossed.
If that happened to me I would want a good video and audio recording. If I did, I would do everything within my power to get that hot dog fired.
Law Enforcement does not need badge heavy hot dogs like him making the image any worse.

Got an award for that jerk.
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WildBill
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Re: Would this be legal in Texas?

#29

Post by WildBill »

baldeagle wrote:
WildBill wrote:
The Annoyed Man wrote:"Hot pursuit" means you (the LEO) SAW the bad guy(s) enter the abode. That was not the case in my OP. Police were looking for two guys whom they believed to be parole violators, and they were knocking on doors looking for them. They did not see the suspects enter the man's home. . . .or any other home, for that matter, or they would have obviously gone to that home directly.
You might think so, but that is not the case law.
Please cite the case law to which you refer. In my reading I find that the police cannot do warrantless searches anywhere that an individual has "a reasonable expectation of privacy". The home would certainly qualify. Therefore, the only exception would be hot pursuit, but hot pursuit requires just that. Unless the police have an articulable reason for thinking the felons are in your house, it's not hot pursuit. In TAM's description, hot pursuit is questionable at best.
My post was disagreeing with TAM's statement that hot pursuit means the LEO SAW the bad guy enter the abode. That is all.
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Re: Would this be legal in Texas?

#30

Post by WildBill »

b322da wrote:Looks like you finally got responsive replies, but I had to go to the end of the thread to find them. Perhaps I might be a bit more responsive by citing a specific federal statute prohibiting conduct like this. I am no longer an LEO, but I was for many years, and I have been exposed to the criminal law, including the particular statute, in other employment for most of my life.

Gross police misconduct like this in my opinion amounts at least to violation of 18 U. S. Code , Sec. 241:

"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;...

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."


Jim
This is interesting. So it would be legal for one person to injure, oppress, etc. ?
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