Presentation on theme: "K NOW Y OUR R IGHTS Nicole Knox Law Office of Nicole Knox 214-653-8888."— Presentation transcript:
K NOW Y OUR R IGHTS Nicole Knox Law Office of Nicole Knox
G OAL : B ASIC U NDERSTANDING OF THE O UTLINED C ONSTITUTIONAL R IGHTS Fourth Amendment: protections against unlawful search and seizure Second Amendment: right to bear arms
T EXAS C ONSTITUTION SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. *Texas Constitution, Article 1, Section 9.
S EARCH : D EFINITION A search is any official action that intrudes upon a persons reasonable expectation of privacy. NOTE: Focus is on expectation of privacy and not actual intrusion or trespass. The issue is whether a reasonable person under similar circumstances would expect the same degree of privacy. *Katz v. United States (1972)
S EIZURE : D EFINITION A seizure is the deprivation of liberty, or the enjoyment in exercising dominion or control over a thing, be it property or person. In other words, a seizure has two definitions: 1. deprivation of liberty (arrest or detention); 2. deprivation of property (taking or control over property)
T WO WAYS FOR L EGAL S EARCH 1.Warrant a. Probable cause: whether there are sufficient facts, coupled with inferences from those facts, to establish a fair probability that evidence of a particular crime will likely be found at the specific location. Illinois v. Gates (1983). b. Description: a warrant must describe as fully as possible all the things to be looked for in connection with a crime that has been committed or is about to be committed. NO FISHING EXPEDITIONS. 2. Warrant exception
S EARCH W ARRANT EXCEPTIONS 1.Open Fields (home) 2.Plain View (immediately apparent) 3.Offense in Presence 4.Consent 5.Search Incident to Lawful Arrest (Arizona v. Gant) 6.Automobile Exception (DWI) 7.Terry frisk (pat down)
A RREST W ARRANT E XCEPTION Terry stop. Lawful temporary detention rising to the level of a lawful arrest. Reasonable Suspicion PC developed during detention
S EARCH AND S EIZURE L AWS : R ULES FOR THE C OPS TO F OLLOW Illegal Search or Seizure=Evidence Inadmissible (Known as the Exclusionary Rule)
S ECOND A MENDMENT : R IGHT TO B EAR A RMS Texas Constitution, Article 1, Sec. 23: RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
W HAT IS THE M EANING OF POWER TO REGULATE ?
S ELF -D EFENSE (AND D EFENSE OF O THERS ) It is a defense to prosecution that the defendant believed that: a.he (substitute: another) was in imminent danger of being illegally physically harmed by another; b.the force he used was necessary to prevent the threatened harm; and c.these beliefs were objectively reasonable.
D EADLY F ORCE P ERMITTED It is a defense to use deadly force if the D reasonably believed: a.she was threatened with imminent death or serious bodily injury; and b.deadly force was necessary to prevent that harm to her.
D EFENSE OF P ROPERTY Rule: It is a defense that force was used in the reasonable belief that it was immediately necessary to prevent or terminate (or fresh pursuit thereof) unlawful interference with real or personal property. (Penal Code 9.41 & 9.42) Limits: a.The D reasonably believed the other had no claim of right when he dispossessed the D; or b.The other accomplished the dispossession by using force, threat, or fraud against the D.
D EFENSE OF S ELF & P ROPERTY C ASTLE D OCTRINE September 1, 2007 There is no duty to retreat to your home if you reasonably believe that deadly force is necessary (under elements in previous slide) Cannot be engaged in criminal activity Cannot provoke November 14, 2007: Joe Horn incident
C ASTLE D OCTRINE Castle Doctrine: Presumption of Reasonableness -Habitation does NOT extend to curtilage; vehicles FLORIDA: Stand Your Ground law. (LA, AL, KY) -ex: Trayvon Martin Both: Safeguards for Gang-Related Crimes; Shoot First Mentality Purpose: Protect Victim in Split-Second Decision Effect: Decrease in Murder Rates in Texas
J OE H ORN S HOOTING
Whats the answer?
R AUL R ODRIGUEZ J UNE 2012 Retired Houston-area firefighter Angry about the noise at a birthday party at his neighbors house (loud music) 22-minute self-recorded video: My life is in danger now (neighbor lunged) these people are trying to kill me Im standing my ground here
R AUL R ODRIGUEZ J UNE 2012 History of being an abusive neighbor CHL Bragged to neighbors about his guns and told a neighbor that a person can avoid prosecution in a shooting by telling authorities you are in fear of your life and you are standing your ground.
J OSE G ONZALEZ (W EBB C O.) J ULY 2007 TRIAL S EPT boys (ages 11-15) broke into JGs home to rummage for snacks. JG asleep in trailer nearby when he heard boys in his home. JG confronted boys with shotgun; boys unarmed; forced to knees; shot boy when lunging forward. Not guilty on self-defense. Feared for life
G UN L AWS Lawful to possess a firearm in your home and in your car (or directly en route to car) Illegal to possess (type of firearm): a. Machine gun b. Short-barrel shotgun
G UN L AWS Legal to carry a handgun if concealed and with a license. It is always illegal to carry a handgun and brandish it (apparent in plain view) It is always illegal to carry a handgun onto prohibited premises (sporting events, bar or liquor store, jail or prison, hospitals, amusement parks, churches, schools, govt meeting) or anytime while intoxicated.
G UN L AWS It is always illegal to possess a firearm if you have been released from prison, parole, or probation for conviction of a felony or assault family violence. * Chapter 46 of Penal Code.