January 2nd, 2013

Texas Police Arrest Man for Video Recording Traffic Stop 53

By Carlos Miller

A Texas man video recording a traffic stop from private property gave cops too much credit when he figured they would leave him alone.

That turned out to be wishful thinking when they arrested him for failure to identify because he refused to provide his name to an approaching officer.

The incident took place on December 19 in Alice, a small town in southern Texas.

Alice police told the local media that they needed his identity because he was “witness to the arrest” they had been conducting during the traffic stop.

However, under Texas law, he was under no obligation to provide his name to the officer, considering he was not the person being placed under arrest.

The only exception would have been if he had given the officer a false name as they tried to question him, which he did not.

According to Texas Penal Code, Section 38.02:

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person; or

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

According to the Alice Echo-News Journal, police seized Gabriel Cabrera’s phone as “evidence,” which they had no right to do considering it was not used in the commission of a crime.

The Echo-News, which serves more as a police echo chamber, tries its best to state that Cabrera was arrested not for recording, but for failing to identify.

But we can see and hear the video for ourselves.

Although it is not stated in the article, which was published earlier today, they apparently returned his phone because he was able to post the video to Youtube on December 21, two days after his arrest.

The 12:49 minute is pretty uneventful and dark with Cabrera talking into the camera as to why it is not wise to give police the authority to search your car.

Cabrera remains well away from the investigation with a set of railroad tracks between himself and the cops, but at one point, police notice him, prompting him to say the following:

This guy keeps looking over here like he’s going to do something

I don’t think he has the audacity to try something like that, he knows I have the camera on him.

At 11:58, an officer identified by Cop Block as Nick Juarez walks up to Cabrera and demands identification, muttering something about “if this ends up on Youtube or something like that.”

Well, it did, and now the world is going to learn that Alice police officer Nick Juarez is a law-breaking thug.

Maybe they’ll give Alice Police Chief Daniel Bueno a call to share their sentiments: (361) 664-0186

Alice Police Chief Daniel Bueno


Send stories, tips and videos to Carlos Miller.
  • Bob

    Smart man, knows the law better than the cops do. More proof that you don’t have to be smart to run radar, you just have to be a cop.

    • Difdi

      If I need heart surgery, I go to a surgeon. If I need a building designed, I go to an architect. If I need something flattened overnight, I’d call the U.S. Marines. But I wouldn’t talk to someone trained in basic first aid to do my surgery, I wouldn’t hire a toddler playing with tinkertoys to design a skyscraper and I wouldn’t send Peewee Herman to Afghanistan.

      And I wouldn’t go to a police officer if I wanted an expert on the law.

      Most cops are barely-trained technicians, not legal experts. The courts actually give incentives to police ignorance, since they excuse “honest mistakes” by police more often than not.

      Most citizens who want to understand their rights and the law have a strong incentive to do so. Far stronger than most police officer’s incentive to do so. It’s not surprising many people police interact with know the law better than those sworn to uphold and enforce it.

      • steveo

        And I’m wondering what exactly you are talking about, you are probably on some type of narcotic. We need to have monthly or weekly drug interdiction for the commenters here.

        • Difdi

          My point is obvious. I even spelled it out in my post. Have you not had enough coffee yet today, or are you the one abusing recreational substances here?

          • ExCop-LawStudent

            Cops will never be legal experts (well, if you have one that is also an attorney, you might, but that’s extremely rare). Cops get a total of 3-6 months in an academy (dependent on the state), while lawyers do 3 years of grad school.

            Yet the public is always under the impression that cops know the law, even stuff that cops don’t deal with, like probate. I can’t count the number of times that I was asked about civil laws, and some of the questioners were upset when I told them I didn’t know, they needed to consult an attorney.

          • http://www.facebook.com/profile.php?id=1486181184 John Hoog

            That is because LEOs are forever telling US that IGNORANCE of the LAW is no EXCUSE. Pardon us if we get pissy.

          • Difdi

            Which was pretty much my point. I dislike the fact that someone entrusted with the authority police hold and who has sworn an oath to uphold the law usually has less knowledge about what that law actually says than a concerned citizen does.
            I intensely dislike how courts often dismiss police ignorance of the law as simple, understandable honest mistakes, while at the same time applying the theory that ignorance of the law does not excuse violations of it to everyone else. If any other citizen was caught lying on the stand, there would be severe consequences, even if the testimony was couched in terms of “as best as I can recall”. If anyone else files a police report that is factually and provably untrue there are criminal penalties. But police can file reports and give testimony that contradicts video evidence or that is physically impossible, and they are usually not punished for it.
            In areas where the courts are so forgiving of police ignorance, this can produce a strong incentive for police to not know the laws they enforce. If an officer goes on the stand and says “Yeah, I knew I was violating his rights and making false arrests but that’s just how police work is done in this town” there will be consequences, both for the officer and the department. But if an officer can commit the same sort of abuses of authority, tell a court “I honestly thought I had a right to privacy that allowed me to stop him from filming me” and get away with an unofficial reprimand that doesn’t go into his record? There are quite a few people who will be really tempted to go that route. We do NOT need or want people like that in positions of authority, but the system as it stands seems almost designed to bring those sorts of people into positions of authority.
            On the other hand, since the law expects citizens who are not police to be fully versed in the law (ignorance is not an excuse), the incentive works the other way for those who are not police.
            The end result is quite frankly absurd. The people who swear oaths to uphold the law and have the power to take away a fellow citizen’s freedom or life are often (to borrow a meme) not smarter than a fifth grader. While the people who lack that authority and have not sworn that oath are expected to all have lawyer-like familiarity with the law.

          • ExCop-LawStudent

            Actually, in the area of criminal law, most officers have more knowledge than citizens. I can’t begin to tell you about the idiotic claims that some citizens have made, like stating that even though the illegally carried pistol on the floorboard (next to the packets of crack) is in plain sight, the Fourth Amendment prohibits an officer from seizing either. Or the guys that thought they had a legal right to slap around their wives, so long as they didn’t draw blood. Or the driver who couldn’t be drunk because he was the designated driver (and blew a 0.15 or higher).

            It is when they get into areas that they don’t use on a regular basis that they get into trouble. First, even if the officer says I didn’t know, I thought I was doing the right thing, it doesn’t matter if the law has been clearly established, like in the Glik case. The officers and the department were found liable, despite their claim of ignorance, because the law had been clearly established and ignorance was no excuse.

            We also need to press for criminal accountability when appropriate, and when the elements of the offense are met. This takes holding politicians to task, like letting elected DAs and leaders know that we expect them to prosecute police that falsify reports, tamper with evidence, batter someone without cause, etc. (It does not include charges that can’t be met, like armed robbery – that just eliminates any credibility one may have).

          • Difdi

            I never said all citizens have greater knowledge of the law than police. And I’ll agree there are a LOT of dumbasses out there who make up all sorts of bizarre laws to justify themselves. I was talking about the expectation the courts have for a citizen’s knowledge of the law and the citizens who set out to educate themselves for one reason or another — they are unlikely to even approach the knowledge level of a lawyer, but they often exceed that of police, due to the way the way the system works offers different incentives to different people.
            As for the armed robbery thing, if someone without a badge engaged in exactly the same behavior as that officer did, it would be called armed robbery by the DA, and a conviction would be quite likely. To legally seize property police must meet certain requirements (either a truly exigent circumstance rather than a merely convenient one, or have a warrant) or they cannot lawfully seize the property.
            Unlawful seizure of property against the owner’s will while armed with the owner present is the definition of of an armed robbery.

          • ExCop-LawStudent

            There are six major exceptions to the warrant requirement for searches, based on the fact that the Fourth Amendment prohibits unreasonable searches and not all searches without a warrant are unreasonable.

            Those exceptions are: 1) search incident to arrest, based on the fact that to make an arrest, an officer must have probable cause and is reasonable as a protective measure; 2) plain view, where the officer can clearly see the item being seized when the officer is legitimately at the location; 3) automobile exception, if the search is based on probable cause, such as the odor of burnt marijuana; 4) hot pursuit/exigent circumstances, such as a foot chase of an armed subject, a search for the weapon may be conducted without a warrant to protect the public safety; 5) Terry stop/stop & frisk, limited to a pat down for weapons when the officer has a reasonable suspicion that the subject is committing or about to commit a crime and is armed; and 6) consent that is voluntarily given by someone with apparent authority.

            Second, to prove the elements of robbery, you have to show the specific intent that we have discussed ad nauseum, and which you cannot normally show on a seizure by police for evidence. Making that argument to politicians will get you nowhere, especially if it is a DA or an attorney. It also means everything else that you tell them will be viewed sceptically, as you will have lost credibility with the armed robbery argument.

            I’m not saying you can’t believe that, but until the law changes, I would recommend that you not make that argument when pressing for action against the officers. There are other ways to go at it, such as official oppression charges (if the state has the offense), falsifying records, etc. Go for something that you actually have a chance at succeeding at, not something that will hurt your credibility in the long run.

          • Difdi

            Then there are quite a few people in prison who were falsely convicted of armed robbery.
            Which supports my point, that police are treated differently by the courts than non-police.

          • ExCop-LawStudent

            How so? I’ve seen officers who’ve had the book thrown at them, just as I’ve seen people that were guilty get off scot free.

            Anyone charged with robbery has to have all of the elements proven. If a jury believed that those who were actually innocent were guilty, then you need to look at the jury system, not make claims that just because something is seized by an armed officer, and it later turns out to be an unlawful seizure, that it is robbery. It’s not.

            No system is perfect, but to claim that since some innocent people
            have been convicted proves your point stretches logic beyond
            recognition.

        • JdL

          Difdi’s post is clear and articulate. If you have trouble understanding it, and if other commenters here need a “drug interdiction” every week or month, then I’d suggest that you need a “drug interdiction” every hour, if not continuously.

  • http://www.facebook.com/people/Joel-Turner/679875041 Joel Turner

    Just cost the city some money for stupidity. Break it off in their ass Mr.Cabrera.

  • steveo

    I don’t know, you can give them your name and BD and they’ll still arrest you. So, the ID thing is BS, they would have made up obstruction or harassment or interfering.

  • Chisleu

    They are going to say he had reason to believe he witnessed a crime (maybe the vehicular infraction?)

    • Bureaucromancer

      Which would make it illegal for him to provide a false name, not to refuse to identify as he did.

      • ExCop-LawStudent

        They could lawfully detain him long enough to see if he was a witness and to request identification. Notice I said request – not demand. So long as he did not lie about who he was, there was no offense and he should not have been arrested.

        • steveo

          Yeah, this would work out real well for leos canvassing a crime scene for witnesses. “Give me your ID. What? Ok, you’re under arrest and by the way did you see who shot the guy? And you can also remain anonymous and collect the crimestoppers reward. Wait, no you can’t because now you are under arrest. And actually you are not under arrest, you’re being detained for being a material witness.”

          Not hard to wonder why people tell leos, “DIdn’t see nothin, Didn’t hear nothin.”

          • ExCop-LawStudent

            Except for the fact that they are making a false arrest, without probable cause. It also opens the officer up for a criminal charge of official oppression, Tex. P. C. 39.03, see Haight v. State, 137 S.W.3d 48 (Tex. Crim. App. 2004). It also opens them up for a civil lawsuit under 1983 for false arrest. Not many officers would knowingly put themselves at risk.

            The problem is that officers don’t always know what the laws are. I once had an officer working for me that I would roll on his calls, simply because he did not figure out what he was arresting someone for until after he made the arrest. I would make him tell me what charge he was arresting the person on, and the elements of the offense before I would allow him to make the arrest.

            On most offenses, it is not a problem, they deal with it on a regular basis (like assault, intoxication offenses, etc. It is when they get into areas where they are not familiar that they get into trouble, like this case. A supervisor should have caught it and stopped it.

            The fact that they can legally detain someone doesn’t give them the right in Texas to arrest them if the individual declines to identify to the officer.

          • hazy

            It’s illegal to detain someone without probable cause as well. The problem is that most courts don’t consider it enough of an escalation to give a judgement to the plaintiff.

          • ExCop-LawStudent

            Actually, that is incorrect. Probable cause is the standard of proof required to arrest or search.

            To detain, the officer need only show reasonable suspicion. See Terry v. Ohio, 392 U.S. 1 (1968).

          • hazy

            Yes you’re correct. I often mix the two PC and RAS. But reasonable suspicion needs to be reasonable and articulable. I don’t believe this is the case here. I’ve heard of suits against the city being awarded for just unlawful detainment.

          • steveo

            In FL, the courts say a Well Founded RAS by the totallity of the circumstances, which kind of opens it up to just about anything. Arriba los manos, say nothing, ask for a lawyer.

          • ExCop-LawStudent

            Exactly.

          • steveo

            I can’t even respond this entry. Leos are going to do whatever they want and I guess that is what you said. Leos don’t care about the 1st or the 2nd or the 4th or 5th or 6th amendments. Good luck on the street.

            Personally, if I’m being detained I’ll raise my hands, fall on the ground and ask for a lawyer. That’s all they’ll get from me.

          • ExCop-LawStudent

            “Leos are going to do whatever…” That is not even close to what I was getting at. Officers don’t often have laws memorized that they don’t often use, and officers that don’t need strong supervisors that hold their feet to the fire.

            The officer in this case made a bad arrest – and the supervisor should have caught it.

            I understand how it happened, and why. What we need to focus on is making the officer and the department accountable for the false arrest, and to give them an incentive to do better training.

  • http://www.facebook.com/brooks.ns Brooks Ns

    why doesn’t the posting these videos fall under our constitutional first
    amendment rights. “Congress shall make no law respecting an
    establishment of religion, or
    prohibiting the free exercise thereof; or abridging the freedom of
    speech, or of the press; or the right of the people peaceably to
    assemble, and to petition the Government for a redress of grievances.”

    i would like everyone to look at the part that reads “or abridging the freedom of
    speech, or of the press”

    posting
    these videos on a social network would be “news” Facebook even call the
    wall where you read what your friends post as “your News Feed”

    so i would think YouTube could fall under the same constitutional first
    amendment rights.

    • steveo

      Actually the act of stopping him from his newsgathering activities when he is lawfully present and the recording of the speech is “protected speech” is a violation of the constitutional principle of “prior restraint”. Which is the most serious violation of the 1st Amendment. SCOTUS has never upheld a prior restraint in the history of the US.

    • Difdi

      If nobody ever broke the law, no one would have ever invented police. If nobody ever broke an oath, we’d all be sworn to obey the law as children.

      Guess what? People break both laws and oaths. So yes, video is protected speech. And people sworn to uphold the constitution routinely stomp it into the mud.

  • steveo

    That law in TX is pretty much the same as in FL, except that in FL if you are being lawfully detained you have to identify yourself, but you don’t have to give address or BD, and the law doesn’t say that you have to identify yourself more than once. Give them your name and count how many times they ask you to repeat it and spell it and pronounce it over and over. Say it once and then when they ask again just say, the law doesn’t say I have to tell you more than once and it would be gentlemanly of you to tell me what you are LAWFULLY detaining me for. Of course, get ready for the handcuffs.

    There is an absolute plethora of higher court cases in FL covering this subject, which in FL the leos arrest you for 843.02, otherwise known as “The Carlos Miller Statute”. The higher court cases all agree that if you aren’t being LAWFULLY detained, you can legally obstruct or resist the leo without causing any violence (except for headlong flight in a HIGH crime area) so if you’re in a wealthy neighborhood, feel free to run from the cops.

    • Virtualfrog

      Actually due to this decision by the U.S. Supreme Court you must only give your correct name. Anything after that falls under the 5th.

      LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT – Decided June 21, 2004

      Read on Find Law:

      http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-5554

      • hazy

        I thought that was a district court not the US Supreme Court which is in Washington DC.

        • sfmc98

          The case caption refers the the Sixth Judicial District court of Nevada

      • sfmc98

        “Anything after that falls under the 5th.”

        That wasn’t exactly the holding in Hiibel. The Fifth Amendment was implicated somewhat but the ruling was only based on it to the extent that in this case, there was no threat of incrimination. Hiibel had nothing “linking him in the chain of evidence needed to convict” him by giving his name. In other words his name was non-incriminating. So, the issue turns (yet to be decided) on whether providing one’s incriminating name can be compelled.

        The court held the same for producing further information to verify the person’s identity:

        Acts of production [of identity documents] may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.

        • Virtualfrog

          Thank you for the further clarification. You are absolutely correct in your interpretation.
          As in so many of the court’s rulings, there are new questions that arise if given different circumstances than those being presented to the court. I simply did not want to go that deep here.

          • ExCop-LawStudent

            The state also has to have an identification law. For example, in Texas, there is no requirement to ID while under detention. Hibel alone doesn’t give police the right to identify you, it just said that when lawfully detained under reasonable suspicion, there was no right to refuse to identify if a state law required it. It narrowed Brown v. Texas, 443 U.S. 47 (1979), which ruled a police demand for ID under state law was unconstitutional if the stop was not supported by reasonable suspicion.

            In this case, the officer is just flat out wrong when he tells the guy that he has to ID. It was a bad arrest.

          • steveo

            The key phrase is ” LAWFULLY DETAINED”

          • ExCop-LawStudent

            Correct, and at best (giving the officer the benefit of the doubt, as the court would in a civil case) the officer had a reasonable suspicion that the videographer was a witness. That gave him grounds to lawfully detain him, to attempt to ID him, learn what he saw, etc.

            In reality, he probably contacted the individual due to the filming, and he didn’t like it.

            It did not give him grounds to arrest him for failure to identify. The videographer was within his rights not to ID, and had broken no law. As I said, it was a bad arrest.

          • sfmc98

            the officer had a reasonable suspicion that the videographer was a witness. That gave him grounds to lawfully detain him…

            Detaining witnesses is not so cut and dried. Its a special needs detention and isn’t necessarily based on reasonable suspicion or probable cause, per se. There are many factors that play into it, like the seriousness of the crime, future possibility of finding the witness again, and any alternatives to detention, like other witnesses or simply a lack of necessity of that witness.

            A crime being committed + witness present ≠ detention. In this case, the crime seemed minor enough that detaining the witness was unreasonable.

          • ExCop-LawStudent

            True, but there was also the possibility of video evidence, etc, and other facts that would make an arguable case for detention, that would require a court to rule on the matter. Remember, we are not talking about detaining the witness by locking him up, just detaining at the scene to try and identify him.

            Regardless, the officer f’d up. The arrest was plainly bad, and not supported by law. There was no violation of the Failure to ID law.

        • steveo

          In my state,FL, if you don’t indentify yourself at least with first and last name, you are going to jail. Even if you identify yourself, you are still probably going to jail if they ask you for iD. It’s not constitutional but the judges don’t really care. They want you to do whatever the leos tell you to do in the field. I personally am not going to comply. That’s why I get arrested so much, but never convicted.

  • Watcher

    Alice PD just had an officer convicted of capital murder for killing his wife as she hid in a closet. They are examples to all of us. Not!

  • anonymouscoward

    I understand why you posted it, but that has got to be one of the most boring videos I’ve ever seen on PINAC. Zzzzzzz :)

  • steveo

    This is kind of interesting that the videographer was being confronted, as the leos maintain, for being a material witness. Maybe this is the new tact that leos will use on us. Everytime, I think I’ve covered all the bases the leos come up with a new twist.

    Detaining material witnesses is rare, normally used in federal cases and most courts agree that this detention can only be done by warrant. Probably not at all under certain state laws. I’m thinking that videographers should give the confronting leo your name and then ask why or for what reason you are being LaWFULLY detained. If they can’t or won’t tell you why you are being detained, after you give them your name (once), then this material witness crap won’t hold up.

  • ExCop-LawStudent

    According to CopBlock, the officer has been placed on administrative leave with pay pending the internal affairs investigation.

  • steveo

    Got to give a thumbs up to Chief Bueno-leo suspended under investigation.

  • ExCop->Teacher

    Great site and informative thread – LawStudent is a good source of information. I did a year of law school before coming to my senses and got a teaching credential instead. In law school I breezed through criminal law because (like most cops) I dealt with criminal laws day in and out (although contracts made me want to kill myself). People think cops know all about the law, but I had little knowledge of torts and less knowledge about contract law. Cops get asked questions all the time because people are raised being told cops enforce the laws… California just enacted 872 new laws at the beginning of the year – nobody knows all the laws. California has a Legal Sourcebook for cops that’s updated monthly with the most recent case law… but only about half of us ever cracked it open.

    As this site shows there are bad cops carrying out shocking acts (I saw a recent video of a Texas female cop giving a lady she just arrested a cavity search on the side of the road in front of her dash cam like it was nothing – so she’s obviously been doing it for awhile. A lot of counties with smaller populations have cops that get away with a lot more for a longer time, but with the proliferation of recording devices and publicity more bad cops are being exposed all the time. If not for this recording the cop would probably not been suspended.

    Before dash cams came along I was recording my stops with an 8MM camcorder velcroed to my dashboard. Cameras are a great way to expose both bad cops and lying citizens… honest cops should not fear cameras.

    • Jefft90

      ECT

      Welcome to the neighborhood.
      Be prepared, this is an emotion fueled Free Fire Zone.

      I have a question WRT your previous life and dash cams.

      Were you and your fellow officers able to access the footage
      on the dash cams prior to writing your reports ?

      • ExCop-LawStudent

        I don’t know about ECT, but in my case, yes and no. I wasn’t able to review it prior to writing the arrest report and booking the person into jail (we used the county jail), but I was after I got back to the PD, I could review it for the offense report.

        If there was something major that I missed, I could then go back and file a supplement to the arrest report, explaining what was found on the video.

    • ExCop-LawStudent

      LOL, I did the same thing, with a full-size VHS (shoulder-rest) camera, except I had the machine shop make an attachment braced to the firewall of the Dodge Diplomat. They somehow attached a tripod mount to hold the camera. Audio was captured with a RadioShack remote mike. It was another 4-5 years before cameras started to be installed in the department’s squadcars.

  • Michael Jenkins

    Police are the biggest criminal threat in the country. You as a citizen have much more to fear from the police than any criminal. They police commit crime under the guise of the law and they are untouchable. This guy was arrested because he was exercising his constitutional rights and the police didn’t want evidence of them committing a crime. That is the bottom line and they will continue to get away with it until the citizenry arms themselves and stands together against them.

Javascript is currently disabled. This website functions better with Javascript. Please enable Javascript in your browser.
Internet Explorer is out-of-date. Please upgrade your browser or install Google Chrome Frame for an improved web browsing experience.