Property Invasion, Damages, Trespass Reprensting My Self In Burn Ban Violation

[phoodieman]

I was burning refuse in my back yard and a neighbor made a complaint to the county. A sheriff's officer deputy showed up at my door and knocked. She asked to gain entrance and I denied. She asked if I was burning plastic in the back and I admitted I was probably burning some kind of plastic. I have a Pit Bull which I had on a harness in my right hand. She asked me to step outside. I told her I would, but that I would need to put the dog away. She jammed her boot in my front door and said I couldn't close the door or she would arrest me. When I queried, she said, "You might go get a weapon". She never made an attempt to call for any backup support. After wrangling with the dog and getting outside she said I would have to step over to her car or she would arrest me. She positively threatened to arrest me at least three times.

The case is now going to trial one year five months later. I had to bond out and the judge "graciously" allowed me to bond out on a PR. The fine and court costs are $570.00. The judge allowed me to represent my self. I know lawyers aren't cheap and even if I "win" I would still stand to pay more than the fine. To me it seems when the jackboot came into my front door the officer was trespassing. Should I just pay the fine and be happy with my corrupt justice system or go to court and try to have this thrown out. (The only weakness in my case is that I did tell the deputy I was probably burning some kind of plastic substance).

I think I would have paid the fine and moved on with this, but when the jackboot hit the door I felt it was my civic duty to let these Nazis know this type of behavior should not be tolerated by the citizens.

Phoodieman

 

[army judge]

I was burning refuse in my back yard and a neighbor made a complaint to the county. A sheriff's officer deputy showed up at my door and knocked. She asked to gain entrance and I denied. She asked if I was burning plastic in the back and I admitted I was probably burning some kind of plastic. I have a Pit Bull which I had on a harness in my right hand. She asked me to step outside. I told her I would, but that I would need to put the dog away. She jammed her boot in my front door and said I couldn't close the door or she would arrest me. When I queried, she said, "You might go get a weapon". She never made an attempt to call for any backup support. After wrangling with the dog and getting outside she said I would have to step over to her car or she would arrest me. She positively threatened to arrest me at least three times.

The case is now going to trial one year five months later. I had to bond out and the judge "graciously" allowed me to bond out on a PR. The fine and court costs are $570.00. The judge allowed me to represent my self. I know lawyers aren't cheap and even if I "win" I would still stand to pay more than the fine. To me it seems when the jackboot came into my front door the officer was trespassing. Should I just pay the fine and be happy with my corrupt justice system or go to court and try to have this thrown out. (The only weakness in my case is that I did tell the deputy I was probably burning some kind of plastic substance).

I think I would have paid the fine and moved on with this, but when the jackboot hit the door I felt it was my civic duty to let these Nazis know this type of behavior should not be tolerated by the citizens.

Phoodieman

I agree, her actions were heavy handed. Is this the hill you want to take a stand? If so, fight it. If not, pay up. I suspect if you fight it, a smart prosecutor will dismiss it.

Is this a county ordinance or a state charge?

 

[mightymoose]

Sounds like the deputy was out of line, but unless you reported this behavior and made a complaint to the department a year and a half ago, don't expect to make a significant issue of it now.
If all the deputy has is your "probably" statement, it sounds as if there is no proof that you were burning anything illegal. Check the text of the ordinance you are accused of violating and make sure you you are prepared to refute each element.
This does sound like something that will get tossed though.

 

[phoodieman]

This is a county issue. I haven't requested a report from the county from the officer, and I think less than a month is not enough time to get one.

What do I need to get ready to take to court? A friend suggested I present a request for disclosure, and then ask the judge for a stay so that I can review the report. I think the officers report is probably something important to my case.

Phoodieman

 

[bluemann33]

This is a county issue. I haven't requested a report from the county from the officer, and I think less than a month is not enough time to get one.

What do I need to get ready to take to court? A friend suggested I present a request for disclosure, and then ask the judge for a stay so that I can review the report. I think the officers report is probably something important to my case.

Phoodieman

request a extension on your court date. That should give you plenty of time to get all the reports you need and prepare for your hearing.

 

[bluemann33]

By the way, goood for you standing up for your rights that were pushed to the limit, Good luck and keep us informed.

 

[CdwJava]

You got lucky. If the burning was still going on, we would have probably entered the back yard if refused entry at the front - forget about going through the front door.

Frankly, I don't know that the officer was all that out of line. The officer is under no legal obligation to allow a subject to potentially arm himself. Perhaps the officer could have handled it differently, but after admitting that you were probably burning plastic (and coupled with the reporting party's claim) probable cause for an arrest likely existed. At that point the officer had even more good cause not to let you out of her sight.

So, if the state has no witness to the burning items, and they did not later go into the yard to find said evidence, i don't see that the case will go anywhere. Your admission is noncommittal and not entirely a confession, so it may not be all that useful at trial.

The officer should have saved everyone the trouble and just told you she was going to be going into the yard to check the scene anyway.

 

[phoodieman]

If that officer thought for one second that I was going to "get a weapon", why didn't she immediately call for back up? And is a burn ban violation something they can arrest you for? That would only be a citation I would think. She did make a call in to ask if she should get the fire department over to put out the fire. Which I told her was ridiculous. My garden hose could put out the fire in about five seconds. This wasn't a roaring blaze.

To get into my back yard without permission (which I would never have given her without some kind warrant), she would have to have climbed a six foot privacy fence and dealt with a 50 LBS pit bull which she would have had to put a couple of rounds in to stop. She and I are very lucky she didn't choose that route.

But my main question I forgot to ask was if an officer cramming a boot in my front door under these circumstances considered trespassing?

Phoodieman

 

[army judge]

The biggest problem for you, pman, will be proof.

You don't think the officer's story will align with yours, do you?

Be prepared for the officer to relate a very different story than the one you tell.

And, the story you tell, of the "jack booted thug"; how will you prove it?

It's a matter of being believed.

This case will try better before a jury, rather than a judge. A judge will see through both stories. A jury will believe the most likable and credible person.

 

[CdwJava]

If that officer thought for one second that I was going to "get a weapon", why didn't she immediately call for back up?

Because she did not let you go for a weapon.

And is a burn ban violation something they can arrest you for?

I imagine it is in TX. Heck, in TX they can arrest you for a traffic violation. Apparently they can arrest you for a burn ban violation as well. In my jurisdiction (in CA) it would be a misdemeanor, and arrestable.

That would only be a citation I would think.

It is likely a discretionary issue. the officer can choose to do one or the other.

She did make a call in to ask if she should get the fire department over to put out the fire. Which I told her was ridiculous. My garden hose could put out the fire in about five seconds. This wasn't a roaring blaze.

SOP would be to call the fire department. Too much liability for the officer to douse it. If it started back up again, the agency would likely get sued. So, they have the professionals deal with it if they deal with it at all.

To get into my back yard without permission (which I would never have given her without some kind warrant), she would have to have climbed a six foot privacy fence and dealt with a 50 LBS pit bull which she would have had to put a couple of rounds in to stop. She and I are very lucky she didn't choose that route.

Well, you're pit bull may be very lucky she did not try that route. All I am saying is that she had that option.

But my main question I forgot to ask was if an officer cramming a boot in my front door under these circumstances considered trespassing?

I wouldn't think so. It sounds like prudent officer safety to me. I would have done the same thing, and I tend to lean heavily on the side of propriety.

 

[phoodieman]

What are your credentials CdwJava?

Phoodieman

 

[mightymoose]

But my main question I forgot to ask was if an officer cramming a boot in my front door under these circumstances considered trespassing?

No, but in my opinion it would have been worthy of a very nasty complaint to the deputy's supervisor. This was a minor issue and the deputy came on pretty strong. As you describe it, the deputy was not very professional.

Also, you were not required to go outside or to even speak to that deputy if you didn't want to. You had every right to close that door and be left in peace. If the deputy had enough to arrest you and was committed to that decision then the deputy would have done so.

Personally, I would have become quite uncooperative (though still relatively respectful and courteous) the moment that boot got stuck in the door. I don't have time for anyone that wants to act that way.

 

[CdwJava]

What are your credentials CdwJava?

Phoodieman

We'll start with 19 years on the job, a police supervisor, and a POST certified instructor in a number of areas.

I do not know the specifics of the laws of arrest in TX, but, in most the country an arrest on probable cause can be made in your doorway. When coupled with an identified complainant and an (arguable) admission, you could have been subject to arrest at that moment. Whether this is an issue the officer might argue, or whether the officer might simply articulate an officer safety issue I cannot say ... and you will not know until you make a complaint to the agency. Well, ultimately, they may not TELL you what the officer's side of the story is, but I imagine that they will look into it.

There are a number of areas of contention in an incident like this, but if the officer wanted to justify her actions and had any amount of experience and articulation, she could.

 

[army judge]

We'll start with 19 years on the job, a police supervisor, and a POST certified instructor in a number of areas.

I do not know the specifics of the laws of arrest in TX, but, in most the country an arrest on probable cause can be made in your doorway. When coupled with an identified complainant and an (arguable) admission, you could have been subject to arrest at that moment. Whether this is an issue the officer might argue, or whether the officer might simply articulate an officer safety issue I cannot say ... and you will not know until you make a complaint to the agency. Well, ultimately, they may not TELL you what the officer's side of the story is, but I imagine that they will look into it.

There are a number of areas of contention in an incident like this, but if the officer wanted to justify her actions and had any amount of experience and articulation, she could.

Texas law does not allow a law enforcement officer to arrest for a misdemeanor NOT committed in his/her presence. There are a few exceptions for family violence, violations of protective orders, and some breaches of the peace.

If the facts are as the OP stated, this arrest was ill advised. If the OP is correct in his recollection, this arrest should have been done by complaint and warrant. I suppose that is why it has languished so long in court!

http://law.onecle.com/texas/criminal-procedure/14.03.00.html

 

[CdwJava]

If the burning was still going on, then it would apparently be going on in his presence. We have the same law out here concerning misdemeanor arrests ... however, smoke and the aroma of burning trash is usually a telltale sign. Whether or not the officer had the presence of mind to identify and articulate this, who knows?

As has happened here numerous times, if the person gave us the finger at the door, we would merely make entry to the back yard with the fire department. If the resident continued to be obstinate, we long form it to the DA for a complaint and bill the property owner for the cost of the fire response.

 

[army judge]

The problem then becomes proving who started the fire. That, however, is for the DA to worry about at a later date. The arrest is very shaky.

 

[CdwJava]

The problem then becomes proving who started the fire. That, however, is for the DA to worry about at a later date. The arrest is very shaky.

It might be, but, we do not know what the officer saw, smelled, or heard. If not articulated correctly, it could be very bad. But, since an arrest can be made in the threshold of a doorway, and I assume that the burning was still in progress (and that the call was not hours old), I could make that argument to support the probable cause for an arrest. If the deputy never went to the backyard and confirmed what was being burned, then I suspect the case will fall flat and that is likely why this has taken so long. It appears the deputy took the OP out of the residence and arrested him without ever confirming what was being burned. That, by itself, would likely doom the prosecution even if the arrest might be valid based upon the information the officer believed at the time.

 

[phoodieman]

I want to make it clear that I was NOT arrested in this case. I just received a citation. The court contacted me by mail to inform me that the case had not been disposed of. I showed up to court expecting to have the case heard. I entered a plea and then the judge set a court date and informed me that I had to bond out

I'm not here to discuss the particulars of what happened and how it should have went or not went. I want advice on what to do in court. BTW my previous post was deleted. Don't know if this one will make it either.

phoodieman

 

[army judge]

I want to make it clear that I was NOT arrested in this case. I just received a citation. The court contacted me by mail to inform me that the case had not been disposed of. I showed up to court expecting to have the case heard. I entered a plea and then the judge set a court date and informed me that I had to bond out

I'm not here to discuss the particulars of what happened and how it should have went or not went. I want advice on what to do in court. BTW my previous post was deleted. Don't know if this one will make it either.

phoodieman

My position hasn't changed.
You are NOT required to prove your innocence.
You aren't required to prove anything.
You don't have to do anything in the affirmative in our court system.
You simply must appear when ordered to appear.

The state must prove the charge they've brought against you.
You have pled NOT guilty.
Wise move.
You have said very little.
Wise move.
Just keep on doing what you've been doing.

You can soon make a motion for dismissal based on the state's violation of your right to a speedy trial!
That's your next best move.
No need to hurry, though.
The longer you wait, the better it will be for you!

Whatever you might have said, isn't of much probative value, absent the officer's direct observation.
If this were such a great case, it would have been dealt with.
The state wants YOU (pman) to go away or lay down and die.
You're smart NOT to go away.

Just keep appearing as directed to your court proceedings.
This buzzard of a case will eventually be kicked, dismissed, or nolle prossed.