4th Amendment and Consequences

Model_Timber_HomeA local man stood his ground despite the severe consequences. Imagine being ordered out of your own home and then forcibly removed, handcuffed, and arrested when you refused. Imagine then spending just over two months in jail. Imagine losing your job, car, and almost your home. All because you didn’t immediately yield to a police officer telling you to leave your home. A home is a man’s castle, until apparently, the police decide you should leave. Gilbert Cruz lived that nightmare that we can only imagine.

Police arrived at Cruz’s home after a former neighbor, who recently became homeless, called police claiming he wouldn’t allow her to stay with him. The neighbor further accused Cruz of assaulting her.

Forget about the Fourth Amendment – the right to be secure in your person and your home. It’s supposed to protect you from an unlawful seizure – the taking of your body by the police. Especially, inside your own home. We often think of the Fourth Amendment as protecting against unlawful searches of your person and your home, but it also protects against unlawful seizures.

The Harris County Sheriff’s deputy who arrived certainly forgot about the Fourth Amendment. He told Cruz to leave the home so he could conduct an investigation and interview the woman in private. When Cruz explained the woman did not live there and that he did not feel comfortable leaving his own home, the deputy forcibly removed him. Then arrested him for interfering with his investigation.

His case was eventually dismissed when a prosecutor agreed he had not interfered with the officer’s duty to investigate. Having Cruz leave his own home was not the answer to how to interview the woman in private. Certainly, the officer could “ask” him to step out. But barring his acquiescence, the officer cannot demand he leave his own home absent a warrant or some other legal circumstance. So the deputy created his own – he placed him under arrest for interfering with his public duties. That’s not “interfering with the duties of police officer”; it’s pissing off the police for not doing whatever he wanted! So Cruz might have avoided the wrap, but he wasn’t going to avoid the ride…or the consequences of two months in jail waiting to clear his name.

In Texas, a person commit the offense of interfering with public duties if he interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.

Of course it is an officer’s duty to investigate potential criminal activity. But his ability to investigate is not unfettered. He cannot simply order a person out of his own home to perform his investigation. The officer generally cannot even enter the home to start an investigation absent an invitation into the home. Even where invited inside the home, the officer cannot just start ordered occupants of the home to leave. If he wanted some privacy to interview the woman, he could have asked the woman to step outside. Officers often conduct interviews in their mobile offices. Yes, it’s not uncommon to have a person come sit out in the police car to give a statement or answer questions.

The tragedies of this story are Cruz being arrested, sitting in jail for months, losing his job and car, and almost losing his home. Sitting in jail, even for the innocent, has devastating consequences. But the tragedy doesn’t stop there. What happens when officers violate the Fourth Amendment? Usually nothing. Unreasonable searches and seizures (arrests) are unconstitutional and more common than you could ever imagine. They occur daily. We trust cops to determine who is a bad guy and who isn’t. But what happens when they get it wrong? Sure, the evidence is suppressed or the case is dismissed, just like here, but is that enough? Should the officer be accountable? How does Cruz get his job back? How does he undo his car being repossessed? What about the late fees he incurred because he was sitting in jail waiting for justice? How does he get back that time spent in jail waiting on the system to right the wrong and dismiss his case?

Some people won’t care. They will think he should have just stepped outside and let the officer talk to the woman. Yes, he could have. But why should he have been forced out of his own home at the hands of a law enforcement officer? Law enforcement officer. There’s a catchy term. He’s there to enforce the law. And, of course the law says people are to be secure in their persons and homes. I guess we just want some laws enforced.

Some people will think Cruz just should have just posted bond and got out of jail. If it were only that easy. Many people live paycheck to paycheck and don’t have the $2,500 to deposit with the court. Many are not capable of posting a bond or even hiring the services of a bondsman. Yes, a bondsman only charges about 10% of the bond, but imagine not having $250 to scrape together just to fight for your Fourth Amendment right to be free from an illegal seizure. If only the deputy had followed the law. If only the deputy had respected the Fourth Amendment instead of arresting Cruz for disregarding his bogus order to step outside and give him some privacy. Imagine that: being arrested because a police officer wanted privacy inside your home. Crazy huh? But very real.

EXTRA! EXTRA! When the Press Gets to Your Client Before You Do

breaking newsIt’s Sunday evening. You’re sitting on the couch watching the news to catch up on the latest happenings and to see what’s going to be swirling around the criminal courthouse Monday morning. As a criminal defense lawyer you live the news everyday, defending clients charged with DWI, drug possession, robbery, murder and everything in between.

The “Breaking News” banner scrolls across the screen, giving notice of the latest case of humans behaving badly. The camera focuses on a somber-looking news anchor with an equally somber tone reserved for reporting on human tragedy — the well-practiced, standard-issue visage learned in journalism school and perfected on air after years of making countless similar nightly reports in a large violence prone city. It’s a triple murder. Two adults and their child. Just happened. Horrible scene. A field reporter is standing by at the county jail ready to report the gory details that will equally repulse and fascinate the viewing audience.

The field reporter, mimicking the same standard-issue somber look and tone as his colleague in the studio, looks into the camera and recites the gruesome details just learned from police.

And then you hear it.

“In an exclusive interview with Eyewitness News, the accused killer told Yours Truly his side of the story …”

Wait. What? You think you must have heard wrong. Then you see a splashy graphic with the accused killers own words in quotations scroll across the screen. Yup. You heard right, the accused killer talked to the reporter shortly after he was transported to the county jail. You shake your head and look over at your spouse who’s lived and breathed every one of your cases with you and who patiently listened to all your war stories and rants.

“Can they do that?” she asks.

“Can who do what?”

“The media. How can they talk to this guy at the jail?”

“Well, there’s no law against it. They’re not police or prosecutors so there’s nothing stopping them.”

“But why would his lawyer let him do that?”

“I’m sure he doesn’t have a lawyer yet. He probably hasn’t even been brought before a judge for probable cause. He won’t get a lawyer appointed to him until his first court appearance tomorrow.”


“Yeah. Wow. It’s going to suck for the lawyer who catches that case. Nothing like your client shooting himself in the foot right out of the gate.”

The following morning on your drive to work, drinking the specially made Starbucks coffee you picked up at drive-thru because you’re too embarrassed for any other adult to hear you order it, you begin mentally preparing for another week of fighting prosecutors and judges and some unreasonable clients. You’re reminded of one client on the docket today. He has a lengthy criminal history and the last time he saw you he told you that you suck as a lawyer — actually, he called you a “bitch ass” lawyer and said if he had the money he’d hire a “free world” lawyer — because you couldn’t get his two aggravated robberies reduced to misdemeanors. Yeah, well, maybe his free world lawyer can file a motion to change the facts. As your mind wanders once again to thoughts of why the hell you’re doing this job, your ringing cell phone interrupts your thoughts.

You look at your telephone screen and see it is one of the district courts calling. You answer the call and the coordinator on the other side of the line says the judge told her to call you to ask if you can help out the court today and accept a new case. That’s code for “we have a shitty case and we’d like you to take it.”

“Sure. What kind of case?” you ask, girding for the response.

“It’s a bad one. Triple murder. Mom, dad and kid. It’s been in the news all weekend.”

“Ok, great. I’ll be there shortly.”

The previous night’s newscast rushes back to mind. You’re the poor bastard that just drew the black bean. Your client, whom you haven’t even met, has already talked to the press. Whatever small measure of peace you were enjoying before the telephone rang quickly evaporated, replaced by the stress of what you know is waiting for you at the courthouse.

You look back at your phone and make a call.

“Hi honey. Remember that story we watched on the news last night? Yep, that’s the one. Guess what …”

What the hell was this guy thinking, you ask yourself. Doesn’t he watch tv? Has he never watched a cop show? Law and Order has three different shows playing 24-hours a day on multiple channels. Doesn’t he know you don’t talk? Not to the police. Not to your cellmate. And sure as hell not to a reporter. NEVER. So what now?

Last month, in Houston, Texas, a television news reporter went to the Harris County jail on a Sunday and interviewed a man accused of killing three people and then broadcast his statements on the evening news. The reporter knew that the defendant didn’t have a lawyer, it was the weekend and a lawyer would not be appointed until Monday. He had to move quickly because even the most inexperienced lawyer knew enough to advise his client to not discuss his case with anyone.

In 2015, again in Houston, Texas, a newspaper reporter went to the Harris County jail and was given access to a defendant charged with murdering an entire family. The interview took place four days after the murders and two days after a very experienced lawyer was appointed to represent him. The defendant’s lawyer, immediately upon learning of the interview, filed a motion for the court to issue a gag order to preserve the defendant’s right to a fair trial by preventing pre-trial publicity and the judge signed the order. The newspaper responded with an indignant statement that it would continue to “aggressively report” on the case because the order violates the newspaper’s First Amendment right. Oh. Ok. When you put it that way, the right to sell papers with all the deliciously wicked details of the crime is far more important than an accused’s right to an impartial jury pool and a fair trial. Totally reasonable. Morons.

The media is a duplicitous, pompous ass creature, swollen with self-righteousness that will eagerly crucify police for violating citizens’ rights and prosecutors for wrongful convictions — guardians of truth, justice and the American way — and they have no compunction about eviscerating an accused’s defense with the same vigor in relentless pursuit of the almighty “story” under the protective cloak of the First Amendment.

But that is expected from the media. The modern world of the 24-hour news cycle and the ever increasing competition from self-professed lone wolf “journalists” armed with nothing more than a smart phone with a camera and a social media account, puts pressure on the media to be the first to publish. No media outlet wants to get scooped by some average Joe with an iPhone and a Twitter account. After a day or two of news coverage it’s on to the next story, the next incident of human depravity. The story that was so important moments earlier fades into the background as “old news” but the affect on your client and his case is permanent. The damage has been done. Your client’s statement is now in the ether, available for public consumption and the prosecutor’s case. You know the prosecutor is will use your client’s words against him like a loaded weapon that may just pay the freight for your client’s one-way ticket to the death.


The root of the problem in both of these scenarios is not the media, it’s the Harris County Sheriff. The Harris County Sheriff is the chief law enforcement officer over the Harris County jail. The Sheriff controls who can visit an inmate, when they can visit and the parameters of that visit. Visits are controlled by numerous rules, which one can find on the Harris County Sheriff’s Office website. The first thing visitors to the website are told is “Visitation is a privilege” and that it may be “denied, revoked or limited” if the Sheriff, through his deputies, deems it necessary. Finally, and most importantly to our discussion here, is notice that all non-privileged (those visits not between a defendant and his lawyer) “will be monitored by Detention personnel.”

So, how does someone without the slightest connection to an inmate — like a reporter — gain access to that inmate? What rules govern media access? Apparently, a few which are not followed:

Request for media interviews must be accompanied by a signed letter on letterhead stationery from the defendant’s attorney of record in the criminal proceedings, reflecting the attorney’s approval of the interview request. The letter must state that the judge having jurisdiction over the criminal proceeding has been informed of the interview request. 

Why does the Sheriff allow media access to inmates? A private investigator working for a defendant’s lawyer on the defendant’s behalf MUST present a letter from the defendant’s lawyer to the Harris County Sheriff stating that the attorney represents the defendant, the investigator works for the attorney and the investigator needs access to his client in the jail. If this is required of attorneys and investigators who actually represent the defendant, why does the media get unfettered access? And, you can bet that if an attorney has not yet been appointed, there has been no letter filed reflecting both the attorney’s approval and the judge’s awareness. And, in the case where the attorney sought a gag order from the court, neither the press nor the Sheriff sought the attorney’s approval before the interview. So why would the media have access absent this stated policy or rule?

Police interaction with criminal defendants is controlled by the United States and Texas constitutions. When police arrest a person for a crime they must read that person a legal warning (a la Miranda) before they are permitted to question them about the crime. Under Texas law, the legal warning and the defendant’s statements must be recorded in writing or on video or audio for the statement to be admissible at trial. These constitutional provisions do not extend to the media because media are neither governmental institutions nor law enforcement. What better way to get a damaging statement or confession from a defendant than through the press? Especially under the watchful eye (and ears) of a detention officer. There is however, a narrowly-tailored restriction on civilians and media. If a civilian, acting on behalf of law enforcement, obtains information from a criminal defendant, that civilian becomes an agent of the state and the constitutional strictures that apply to law enforcement apply to the civilian’s contact with the defendant and any statement the defendant made to the civilian.

Is that what is happening at the Harris County jail? Possible but not probable. The reality is likely closer to an indelible bureaucratic ignorance. Regardless of the reason, nefarious or otherwise, the result is the same. Allowing media access to inmates, the Harris County Sheriff’s Office is complicit in undermining the accused’s Fifth and Sixth Amendment rights. An expected response from the Sheriff and the media is that a defendant can simply refuse to talk to the media, nobody is forcing them to make a statement. True, but most criminal defendants are not known for being brain trusts or for possessing common sense. After 50 years of Miranda (1966) and, I hate to say it but you know it’s true, after 50 years of police programs featuring officers reading defendant’s their rights — everybody knows about Miranda — the requirement to recite these rights when required to each defendant has not diminished. Nevertheless, too many criminal defendants waive these rights before they are given the benefit of legal counsel who would advise them to take full advantage of their right to remain silent. And, without the benefit of legal counsel, too many defendants given the opportunity, will speak to the media because they want to get their version of the story out. And because they want to get on news. Like I said, they’re not the brightest folks.

Lawyers cannot protect their clients from all their stupid decisions but the Harris County Sheriff’s Office’s policy allowing media access to defendants requires scrutiny, and it needs to stop. Immediately. The First Amendment guarantees freedom of speech and press, it does not guarantee the media access to inmates in the Harris County jail. Denying media access to inmates at the Harris County jail does not affect the media’s First Amendment right. As with all constitutional guarantees, they are not limitless. The First Amendment doesn’t protect an individual’s right to scream “fire” in a crowded theater and a convicted felon loses his Second Amendment right to possess a firearm. Likewise, the media’s First Amendment right does not and cannot ever trump a defendant’s Fifth and Sixth Amendment right to a fair trial.

[Note: post updated 6/13/16, 6:50pm to reflect Harris County Sheriff’s Department Media Relations Policy as linked and quoted above]