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Legal Blog

Am I Under Arrest? Am I Free to Leave?

Am I under arrest?  Am I free to leave?

By Paul Looney

“You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to an attorney.  If you cannot afford an attorney, one will be provided for you.”

Most Americans know these words because of their use in police dramas on television such as “Law & Order”.  But what are these rights – commonly known as Miranda Rights – and what happens if they are not read to you upon arrest?

In 1966 the Supreme Court ruled in Miranda v. Arizona that the Fifth Amendment of the U.S. Constitution requires that law enforcement officials advise suspects of a crime of their right to remain silent and their right to have an attorney present while being questioned in police custody.  This decision comes from the self-incrimination clause of the Fifth Amendment, which reads, “nor shall any person…be compelled in any criminal case to be a witness against himself.” 

Unlike police dramas where law enforcement officers read a suspect his or her Miranda Rights the moment they put them in handcuffs, officers often do not read a suspect his or her rights until much later.  This is important because if you answer any questions that an officer asks you prior to being read your Miranda Rights, those answers usually cannot be used as evidence in court.  So what happens if you choose to be silent before being read your rights?

In 2013, the Supreme Court ruled in Salinas v. Texas that the Fifth Amendment does not protect a defendant who has declined to answer questions asked by law enforcement before being read his or her Miranda Rights.  In 1992, Salinas agreed to go with the officer to a police station in Houston to question him in connection with a double homicide.  He was not under arrest and therefore was not read his Miranda Rights.  As a result, Salinas refused to answer questions the police asked.

Salinas was later arrested after a witness said that Salinas committed the murders.  When the case was brought to trial, the prosecution introduced evidence of Salinas’ silence.  Salinas’ attorney argued that his client could use his Fifth Amendment protection whether he was in custody or not, meaning that Salinas’ silence could not be used against him.  The lower court disagreed and Salinas was found guilty and sentenced to 20 years in prison.  The case was appealed to the Fourteenth Court of Appeals in Harris County, the Texas Court of Criminal Appeals and later to the United States Supreme Court.  All three of these courts affirmed the lower court’s decision. 

So what does this mean for you?  The simplest way to explain it is if you are being questioned by police, and you are not under arrest and have not been read your Miranda Rights and you choose not to answer any questions, your silence can be used against you in court.

Instead of answering any questions, you should ask the officer interrogating you “Am I under arrest?”  If the answer is “no,” you should then ask, “Am I free to leave?”  If you are not under arrest, the officer should say, “Yes, you are free to leave.”  Salinas’ mistake was that he accompanied the officers to the police station for questioning instead of asking these questions.  By denying interrogation, you do not give a police officer the chance to ask you questions and you can therefore avoid having your silence used against you in court.

Reasons an officer may pull you over in your vehicle

Reasons an officer may pull you over in your vehicle

By Paul Looney, Attorney

Most of us have been guilty of reckless driving.  Whether we were texting while driving, driving while intoxicated or under the influence, or numerous other things that caused us to be distracted, we have all done it.  However, very few of us have been pulled over by an officer for failing to maintain a lane or anything else that would lead an officer to believe we were doing something criminal.

Most people think a police officer must have probable cause in order to pull someone over.  While they must have probable cause to arrest someone, they do not need probable cause to pull the person over.  What the officer must have is something called a “reasonable suspicion.”  As opposed to probable cause (facts used to obtain an arrest warrant), a traffic stop as a result of reasonable suspicion occurs if the officer believes a crime is being committed or is about to be committed.

In 1968, the Supreme Court ruled in Terry v. Ohio that the Fourth Amendment is not violated when a law enforcement officer searches someone without probable cause for arrest.  The officer must have a reasonable suspicion a crime is being committed or will be committed.  The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Therefore, searches must be deemed reasonable.  The Court found that any reasonable person would have suspected the defendant was committing a crime, or in the process of committing a crime, and therefore the search did not violate the Constitution.

Though the Terry case involved searching a person, the case has been extended to traffic stops – often called “Terry stops”.  This means that a police officer can stop you on a reasonable suspicion instead of probable cause, but that reasonable suspicion must be based on “specific and articulable facts.”

Reckless driving does give an officer reason to pull you over.  After pulling you over the officer will determine if you are doing anything that warrants an arrest, and if there is probable cause for an arrest.  The smell of alcohol or any other controlled substance, drugs or alcohol out in the open, your speech, your eye movements and many other factors can give an officer probable cause for an arrest.

So how can you avoid getting pulled over because of a reasonable suspicion?  Simple.  Practice safe driving habits such as avoiding texting and driving, driving while tired or sleepy and avoid driving under the influence of alcohol or other controlled substances.  This prevents you from driving recklessly which will prevent police officers from suspecting you of criminal activity.

What's Mine is Yours

What’s Mine is Yours

By Sarah Wagner, Attorney

Quite often couples are under the impression that as soon as they are married, their property becomes jointly owned by both spouses.  This simply is not true.  The second you get married, your belongings do not magically turn into community property.  In fact, any property you came into the marriage with will remain your separate property.  This includes all money, vehicles, real estate and anything else you may own.

So what exactly is included in community property?  Almost anything acquired after marriage.  For example, if a married person has a job, that person’s paycheck will belong to the community because it was earned during the marriage.  Furthermore, any items purchased with money that was earned during the marriage will likely be community property.  Items purchased with separate property funds will likely remain the separate property of the purchasing spouse.

Almost anything acquired after marriage will become jointly-owned by the spouses with a few key exceptions.  Any property acquired by a spouse by gift, devise or inheritance will remain the separate property of that spouse.  This means that if a married person is gifted money, land or any other item, that item will remain the separate property of the receiving spouse even if they are happily married. 

Additionally, if the spouses are both gifted the same item at the same time, that item will technically remain the separate property of each spouse.  For example, Mr. and Mrs. Smith are gifted a piece of land.  Mr. and Mrs. Smith will each have a fifty percent separate property interest in the land instead of the land belonging to the spouses jointly.  While this seems overly technical, the characterization of marital property is important in the event of divorce and in the case that either spouse passes away.

In Texas, there is the “community property presumption.”  This is relevant when a married person files for divorce or dies.  This presumption means a court will presume that all property owned by either spouse is community property.  To rebut this presumption, either spouse must show by “clear and convincing evidence” that the property in question is, in fact, their separate property.  The clear and convincing evidence standard is a very high bar to meet.  So how do you get around this?

Before marriage, a couple can enter into a premarital agreement where they state that their income will remain their separate property.  Upon death or divorce, there is little question as to whether the income belongs to the community estate.  Additionally, after marriage the spouses can enter into a post-marital agreement.  In a post-marital agreement, the spouses can partition and exchange their community property.  This means that Mr. Smith can give up his interest in Mrs. Smith’s income in exchange for Mrs. Smith giving up her interest in Mr. Smith’s income.

So is a pre-marital or post-marital agreement right for you?  That is a question for you to decide.  You should take into account not only the legal ramifications, but the consequences to your relationship as well.

So You're Being Evicted

So You’re Being Evicted

By Richard Senasac, Attorney

Many renters find themselves being evicted for one reason or another.  Every renter should have a lease; the first thing to do is read it.  There are situations in which the landlord cannot evict.  If a renter demanded repairs, unless in breach of the lease, the landlord cannot evict.  Further, after giving the proper notice for repairs, the landlord cannot increase rent, evict, terminate the lease or otherwise retaliate for the demand for repairs for a period of six months.  But, if a tenant is in violation of any part of the lease, the landlord can use it to justify the actions.

Renters also have the right to “quiet enjoyment” of the rented property.  This means the landlord cannot evict without cause or otherwise disturb the right to live in peace and quiet.  If the landlord does attempt to evict for no cause, prosecution in bad faith for harassment purposes leave the landlord liable for one month’s rent plus $100 and attorneys fees under Texas Property Code Section 92.004.  Also, unless provided for in the lease or unless the interruption results from bona fide repairs, construction, or an emergency, the landlord cannot interrupt utilities.  That means the landlord cannot turn off utilities to force the tenant out.

Failure to pay rent is the most common reason for eviction.  If the lease defines when a payment is late, that controls.  The lease may also provide for “curing” a failure to pay or making a late payment.  But if the lease does not provide otherwise, the rent is late the day after the day it is due.  Often leases will give a few days “grace” after that date.  The lease may also provide for a penalty for late payment and this must be paid, as well as the rent, to cure the violation.  Under Texas Property Code Section 92.019, the landlord has to give at least a one-day grace period before charging this penalty but this does not apply to the eviction process.

Once the rent is late, the landlord must post a notice to vacate.  The notice must give the tenant at least three days to vacate, must list the date, name of tenant, address, reason for the eviction and that the tenant must pay the rent (and penalties) or move within this period or the landlord will take legal action.  If the notice is missing any of this information, the three-day period does not start.  The notice must be personally delivered, mailed or posted on the door of the rental unit.

Once properly served, the tenant has several options.  He or she can move out or pay the rent (if that option is available), can negotiate for a longer period to move – even making a partial rent payment or agreeing that the landlord may keep some or all of the deposit – or refuse to vacate the premises.  If any agreement is made with the landlord, it should be in writing signed by all parties, should recognize what, if anything, is still owed to the landlord, and the dates on which the tenant will move out and the security deposit be returned.  If the tenant does not pay the rent or move out (or otherwise come to an agreement with the landlord) the landlord may begin eviction proceedings through the local Justice of the Peace Court.

Posting the notice to vacate, or even being served with the eviction suit, does not force the tenant to move out.  The landlord cannot have a law enforcement agent remove the tenant until the landlord wins the suit in JP Court and is granted a Writ of Possession by the Court.  No written answer is required and the tenant can request a jury trial, but if the tenant does not appear at a scheduled trial date, the landlord wins.  Win or lose, the tenant should get a copy of the judgment.  After a trial, either party has five days, counting weekends and holidays, to appeal to County Court.  A tenant should speak to the JP Clerk about this process if there is a wish for an appeal.  The Court will set a bond for the appeal.  If a tenant cannot afford to post the bond, he or she should ask the Clerk about filing a pauper’s affidavit instead.  Also, if a tenant appeals, he or she should hire an attorney since parties are held to the same rules in County Court whether or not they are represented by counsel.

If the tenant loses and does not appeal, after five days the landlord can get a Writ of Possession.  The constable’s office will post a 24-hour notice on the door of the rental unit and after that period, can remove the tenant if the tenant does not vacate the unit.

There are several good internet sites for tenant’s rights including the Texas Attorney General’s website.  A search for “tenant’s rights” can find many other sites.  Many cities have “tenant’s council’s” which provide help.  There are also free legal aid organizations.

Handling an Outstanding Warrant

Handling an Outstanding Warrant

By Paul Looney & Clay S. Conrad, Attorneys

The idea of an arrest warrant issued with your name on it can be terrifying.  Several questions spring to mind when the news of a warrant for you reaches you:  What did I do?  Are the police coming for me?  How do I verify whether the warrant is real or a mistake?  Who can I talk to in order to fix this?

While not all warrants mean an imminent arrest, all warrants should be addressed as quickly as possible in order to avoid something as uncomfortable as a possible midnight raid or being detained following a routine traffic stop.  Once arrested, you will be held to face whatever charges motivated the warrant in the first place, from a traffic offense to murder.  If the alleged offense was committed in another state, you will be held in jail in the state you are currently in until an extradition hearing can be scheduled to determine whether there is sufficient evidence to have you transported to another state to face charges.

Most people arrested are able to post bond, but on a serious offense bond can present a significant financial burden.  In drug cases, bonds are often initially set as a multiple of the alleged value of the drugs, determined by the highest street price.  An attorney can often get your bond reduced, provided you can show that you are not a flight risk.  This is where lawyering-up and being pro-active can make a huge difference:  nothing shows that you are not a flight risk better than turning yourself in, with an attorney, prepared to confront the charges against you.

The first step after you learn of the possibility of a warrant with your name on it is to verify that there is in fact such a warrant out there.  One way a warrant can be verified is to call the county clerk or the local police.  If you do not want to involve the court quite yet, another way to verify a warrant is to go online and use a third-party website or to contact a bondsman or attorney.  In this way you may be able to learn the date of the offense, when and where the charges were filed, what the charges are and what court the case is in.  It is not recommended to go through the legal system alone, so the next step is to arrange, with an attorney, to turn yourself in and arrange for bond.  Having an attorney with you shows the judge that you are taking the charges against you seriously.

Many people make the mistake of thinking if they put it off long enough, it will be forgotten:  this is never true.  Once an arrest warrant has been issued, it will remain in the national databases until it is recalled or you are arrested; and eventually you will, for one reason or another, encounter a police officer or other government worker who will have you arrested – often at the least opportune time.  Perhaps you will be in a car accident or get a traffic ticket, apply for a State license or permit, be a victim or witness to a crime or accident, have your driver’s license photo taken, apply for a passport, etc.   The more you take control of the situation, the less the situation will take control of you and the sooner you will be able to put it behind you.

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