property without a warner exigent circumstances they have then a private citizen a private citizen as an implied license to go onto your property to approach the door to go up to the front door and knock on the door without invitation without warrant without circumstances then when she comes to the door she answers the door and you can tell that she's been asleep she says she's going to sleep it's she comes downstairs after several and opens the door and they explained ther e she says to them that the next door neighbor is where her son's best friend lives she then closes the door and retreats into her home and this is another thing that the supreme court recognizes that a private citizen has a right to do yes the third violation occurs when after she terminates the conversation the officers go and walk around the curtilage of her house which is a violation of her fourth amendment rights and a well established law that also was student already and they also enter into her backyard which is a gated backyard which is another violation of her fourth amendment rights they sign flashlights into windows now the police are permitted to look into a window from the street even use binoculars from across the street to look into a window but they're not permitted to go onto the cartilage of the house without invitation or warrant or to look in the window from the curtilage of a house like a peeping tom i know this is this is the third violation after that skip ahead in the facts because you're familiar with the facts but after mrs was well comes back out because she hears her son being interrogated by the police without the presence of a parent she comes out and ask what's going on the officer officer luna instructs tells her that he will tell her what's going on but only if she comes away from where her son is being  interrogated she declines not surprisingly she wants to stay with her son who she hears being threaten to take that they're going to take him to jail but she still asked again what's going on at this point you know tells her to be quiet and the next time she tries to ask a question he tells are going to be quiet and threatens her that she isn't quiet she's going to make her go and wait inside meanwhile they're interrogating her minor son outside without her or any parent is that i used i was looking in the briefing for that or is there an if they're minors without their parents there are no claims about that other than it is relevant as circumstances the totality of the circumstances there's not a specific claim for violation of of the son's rights being mirandized or being interrogated and not allowed to work in all of that is a yes you're on about that's correct the district court mentions that says that the fact that they keep telling her to be quiet and preventing her from speaking under threat of being forced to go back  is arrested under one purported reasoning but there is in this case fact questions and in which the jury could reasonably conclude that the reason the person was arrested was not because they were committing any crime or  reasonably believed to be committing any crime but in fact because they had dared to ask questions of the police to challenge the police in some way and this was retaliation for that something that's commonly referred to as contempt of cop i would direct the court to make some verses westfall that they have they can do one of two things at this point because one of two ways they can handle it one they can keep them outside for over while they get a search warrant i don't believe there's any legal authority for them to keep them outside while they get their search warrant especially in january in the middle and night the sun is wearing shorts and a t shirt and shoes and this was holes in her nightgown or to the other option is someone can go in and get it and bring it out and mrs found struck her son to go in and get it and bring it out at the same time that this this is happening mr westfall comes out officer anderson who has announced earlier that he won't be speaking to mrs was all because she closed the door in his face boy you want to go in with us and i want you with me and at that time mr westfall has not responded doesn't say anything but he is obedient he does go with them as the anywhere you slam the door in our face earlier this was all insist that she has the right to go in a house if she wants to and at which point officer anderson says you're not going to step up on me you're not going to step up on me after we gave you drugs she says go in and get it i believe is language and i don't agree that you could reasonably construe instructions to someone who lives in the house to go into the house to retrieve something to be permission for the police to go in your house and search it but even if that were the case or unlikely that once once they understand that there are illegal drugs in my house that they're going to allow the fun to go without a police officer because the next thing that could happen is it would be flushed down the toilet or whatever so at that point i think possibly anyway and i'm i don't mean to create a problem for you but i do think that a police officer would think i need to go with and shortly thereafter once it became clear that the officers were going to enter the home with the child but the mother would not be permitted to go in before it was undertaken or right at the instigation of it your he understood that she didn't want to in the house without her i see that i am running low on time so i would like to talk a little bit about the assault at this time  draw inferences in favor of appellant mrs westfall and not the officers another inference you could take from officer anderson statement you're not going to step up on me after we got gave you specific instructions it's not that he feels that he is in danger but that his angered that she is not obeying their their command to stay outside and so i think if you take the inference as a favor miss was fall and fit instead of in favor of a pelleas a solo requires us to do that record does not disprove her evidence and she put forward evidence that she was not moving aggressively or in any way threatening officer and since she was just trying to enter the house additionally even if you draw the inference from officer anderson statement that he did in fact feel threatened that he felt that to his safety  conclude that even though he subjectively felt that it was not objective lee reasonable for him to feel that given the circumstances there's no weapons and this is really threats there's no reason to believe that there is violence on the table at this point the jury could conclude and could credit mrs was false evidence to put forth evidence that she wasn't threatening him or moving aggressively towards him and conclude that that statement even if it did reflect that he was in danger was not reasonably it was not if you credit mrs west falls back a perception that he is in danger of some sort is not objective leave reasonable now if you don't credit her facts that's a different question but i think the states were required to write i'm just saying that  predator backs and she could be all about her motives of what she was doing but that an officer could perceive them as is threatening moves even if they're not at all attended in that way while her testimony would not just be about her internal intentions but also about physically what she actually did yes and you're saying that a person would not perceive those things a reasonable officers being in any way threatening and to be clear was she at this point saying that express withdrawal of the consent in both cases it would have to be inferred from the circumstances but also like to before the move on from consent i'd like to point out that there's a heightened standard of consent that applies when there's been a prior violation of the fourth amendment right and as i believe in this case there has been several i under that standard you have to prove that the consent ordinary consent consent is an act of free will and that breaks the causal chain between the prior violations and the consent and i don't think that heightened standard is met here with respect to her telling her son to go in and get the marijuana and we have two cases that say that one the judge or the other who the  case where you talk about the heightened standard for concern after multiple violations of the fourth amendment and we didn't talk yet about whether or not mr west compliance with the officer was that this court has also held that impassivity cannot constitute consent under the fourth amendment and that case is gates versus texas department of protected and regular do you have to more or is that if you go to salt you're not the last the force was justified because this is was to the extent she was struggling struggling to cover herself because as she had gone to the ground her nightgown had come up and she was exposed to the other people on the porch including some teenage boys and was trying to cover herself is why she's known confidential information confidential to this the police of leverage access to their evidence and protection of my confidential information and third parties confidential information confidential information that should have been protected as a matter of course in a lawsuit i'm doing what i can to make sure that what happened to me does not happen to anyone else that happened to me it can happen to anyone and it can't be done in this lawsuit is shrouded in the secrecy moot because i want the privilege to make the internal affairs report available to be in the public appeal is what held the internal affairs report for me in the public because a report was confidential under an absolute state law privilege citing texas local government law and the first amendment so police insisted on secrecy is inconsistent with the public's right to know the public's right to know what is going on with their police can you help us because that document has subsequently become available how does that affect your claim if it all even if there were any argument or that you're correct that it should not have been under seal to begin with assuming argument that you're correct just take that if what what insistence on secrecy is inconsistent with the public's right to know what is going on in their courts and in fact the document isn't privileged there's no legal support for a claim of absolute state law privilege the state cannot you know i really limit the availability of ev federals so rights case federal law not state law applies and this court in popham versus lee held that the federal law does not allow blanket law enforcement privileges theirs is a qualified privilege for an ongoing criminal information medical financial employment information is routinely found is good cause for protection but only if i would agree to treat all of their information is confidential so there was no basis to do so i could not agree  appellate information is given confidential treatment even though it is not confidential under federal law this is because in addition to protecting trade secrets that order protects quote other information required by law to be kept confidential unquote so police are using the state law privilege effect that affects your current rights yes because it makes you destroy documents within sixty days that you believe are not actually confidential yes and and there's another point that for procedural motion a police did the same thing in the district court a mother and a half after the case was dismissed also in this court appeal is a made public confidential juvenile those documents under seal in the state court i mean yes we follow it we follow a motion to strike the exhibits which will promptly granted now in the district court the district court just let it sit there for months so we struck it and so it's no longer available on the d c end of something right but what what i would say is that there is a pattern of unlawful secrecy there's a pattern of privacy violations yet appeal is declared this pill because i complied one time it revealed one document are there documents that i know it sounded like when you were talking that there are documents that you don't have access to but when i read the materials it looks like you had access to all the documents in the case do you or do you not have response of documents there been produced but you don't have access to seeing them right because of what order it says that because of the trade secrets or the trade secret protective order which contemplates which involved in my own the case with any inner judgment the next day and he has ruled on my motion thank you well thank you i think we have your argument occurred on january fourteenth of two thousand and fourteen january eleventh two thousand and fourteen and about one fifty two in the morning the encounter covers about ninety  minutes the situation that is here at present is that there was an internal affairs investigation that was indeed investigated and unsubstantiated produced and it helped us you talked about the internal affairs ten page document is just as bad and other documents we've up in this situation it's cost the city of southlake two hundred fifteen thousand dollars plus for me to stand here and dress this is circuit court is there some who say it's all right to do you want to talk about the documents first is that what you i'm going to ask  copies of it we've said we would produce it pursuant to this trade secret situation where they can come in and look they don't want to spend the money they want us to know this is about money so it's not a situation that the plaintiff herself can't look at the doctors she have does the agreement in any way prohibit her are you trying to prohibit her first self or looking at the document absolutely not n situation where we won at the trial court level we're now on the ability level and i'm in kind of a no win situation because if i say something wrong i can lose the case so i'm looking to the court  know i don't think i need to say that ok ok need to be said i'll retract that justice but i'm in the situation where we want if there is something that the justice courts would like to talk about i'd like to discuss it is there in fact something that requires the plaintiffs to destroy the documents within sixty days after the lawsuit is terminated and is that something that you believe that you're entitle to q not you personally  destroyed if there is something specific that she would want to talk about her address i'm more than happy to take that up with her but as we speak we produce they want to produce personnel files of each one of these officers with addresses and phone numbers and social security numbers and trenches driver's license they want all kinds of in personal information and we don't mind them looking at it but we don't want to have to go through it all especially the non essential things that we have not with that that have been produced and they don't care to go through what about the filing of documents that i mean we are in open court and normally documents are right it you know out there for anybody in the world to see and that's that's how one of the ways courts are different than arbitrations for example and other types of proceedings but documents to deal with minors did was that some accident reference made to i don't know what she's talking about your own that there were depositions and attachments that told information about minors in this in this court is that not accurate when they brought up the issue they had identified minors in their pleadings and when they brought up the issue we took out minors names if we had them in our pleadings and we put in initials we are not here about the minors but this is a situation that hasn't been mentioned is the expungement order that was addressed to the department police department for southlake and expungement order that were part of teles appellants i should say to destroy all their documents everything that related to the case and that we had no idea about until we produced the videos in the audios and they said those should have all been expunged as a result of the miners issues if you read the expungement order and i think you'll see some motions that i have in their dressing s if you read the expungement order the defense would be defense less there would be no case in fact i think that language it's very revealing is that she asked to have everything redacted that calls any attention to any wrongdoing on her part and leaves only the situation with circumstances are the actionable events she wants those gone officer showing up without being without cause for being rude and speaking and just jointed sentences and entering her home without any cause whatsoever if you go by the redaction however if one considers the actual record with which is what we have used in this case on appeal the un redacted portions there is no question that the officers were present to investigate a crime committed and then and westfall confirm the presence of a controlled substance in the home and the entry was related to that looking at that if we go to officer nate anderson statement to money westfall i think it's page ten of our briefing money came outside and i'll sure anderson informed quote right now we know that they're illegal drugs upstairs in the house with your permission and with one of the kids who knows where it is we need to go upstairs to confiscate those drugs ok so whichever kid you want to take us up there to get it it's totally up to you whereupon miss constance westfall says go get it and these officers and these child and mr westfall mr westfall the child just west  i turn my back on you don't come after me and then mr officer anderson takes off for the door and in less withdraw consent to enter the house did she withdraw the cons the wind at that point when she says i'm going to see there's a commotion there is a can we take that commotion to be withdrawing the consent can you read the listen to the commotion on the tapes and say that that was her withdrawing the consent no she doesn't say stop don't go in there i don't want you to go in there ok she says i'm entitled to go in there i want to go in there mr westfall asked for a drug to sniff around and see what exactly is going on i think here that's a lost in these can sconce additional arguments is children that are taking drugs that the parents don't know what they are we have put these officers in a catch twenty two situation and we're not looking at the children that are not being supervised in that are taken drugs and going into other people's houses when they're not allowed to do that is that the root of this case the police are called to do the jobs that we don't want to do when they show up when the dysfunction is at its peak it is unfair now to say that the officer is not smart enough not bright enough not kept not trying well enough or equipped well enough to be able to understand all the interest he's intricacies of the law and the psychologies of these miners in these adults as well as any medical that you don't take any questions of the court to be saying that officers are not intelligent or any of those other things that you listed that were just trying to answer the questions about the case and the constitutional issues that are before us as other three questions are bigger than this court so put a number so is it your position that it was appropriate to go to the door in the middle of the night is it that is that the legal analysis they did not read the entire case they did not apply the entire case so that it gives its truth meeting but in florida be often can't stay in the yard or look around the front yard that's really not what happened here in this particular situation the call comes in boyfriend say that they came in without knocking and they're in our house and that they were upset that well the mom the mom and the sister and the daughter call the police they say that the suspects two indian chief on the t shirt that said right that's it i'm going to feel like they go to that home they see the boys up stairs walking around they're looking out the window they know the police are there everyone knows the police are there except miss westfall evidently that pursuant to her testimony although she knows enough to come to the door the police say we need to see your son's criminal trespass and she shuts it and goes looking for glasses no telling what question oh yes ma'am that not can talk or is this some sort of arrest it's taking place that's what is happening what is that because if it's just a dog can talk she could shut the door and never never open it again yes so assume that that's right they call the first call mr westfall answers and hangs up thinking it's a crank call they call knock again then the  the children answer this the second call third call and that's when they come down so i guess the question is the second knocking is it your position that that was appropriate under the constitutional law or is it your position that well that's not appropriate of reasonable law it's not clearly established or some other what is your position as to the second pounding on the door because assuming an argument of that you can do a knock and talk at two am this will take your spot time then when she shuts the door even if she intends to come back and whether or not she does can they because you said the officers can see him in the home so under what authority do they approach the door the first time and then the second time i think in the same authority in that they have  of what up let me be careful how i work this but it sounds to me like this is an ongoing criminal investigation i mean they got a report of a crime the person who makes the report says the trespasser went next door and so they go next door in pursuit of the trespass it's an ongoing criminal investigation in that and so the question in a connection just how far can they go in terms of investigating they got a report of a crime now maybe we're sitting here saying but they knew it was a fifteen year old boy and they knew he was going to the neighbor's house and then i don't i don't know what they knew at the moment they  but i know that there was a report of a crime in the office are investigating a crime aren't they so the question isn't how far can they go in pursuit of that investigation without violating the constitution anything that subjectively reads so they knock on the door they get a response they get the children down they can talk to the child for that second time loudly what gives them that permission nothing has been said to them that stops them from doing that investigation we see the suspects and we're trying to talk to these suspects we don't know what's going on it might be a minor fifteen year old criminal trespass or it might be something so that's so many it's judge grades question so ok to keep pounding on the door and tell the people answer i think it's ok to objectively and reasonably knock on that door is it ok to go on the cartilage of the house and shine lights in the house i think if you see movement in the house it might be a body to go and see and to address that as well because given the op so right to go on the cartilage of the house at that point and now if your honor if you would please define for me the courage of the home because i don't know about them going but time to how happy are i don't have any evidence or indication that they won't soon that i don't know if it's true or not but it's in the pleadings everything is pretty much body can be an audio so if it's not in the video or the audio have a serious concern over how did mrs west of wind up on the brick walk on the bridge at forty entrance of the door there is some dispute about actually where she did on the brick apparently and she was injured how did that happen she attempted to go into the door she attempted to follow officer anderson and someone of the police said it's her home you know which you know it was so she went trying to go back in the home and apparently the police then said no no you can't do th and she winds up being thrown on to the brick pavement and how did that happen what's your version of that she approached officer anderson from behind and rapidly and she should have done that after being warn to know he was he was protecting himself or from her officer lucia was protecting officer anderson when miss westfall in noncompliance opposition to the orders that were given at a critical time approached officer and are sent from behind rapidly after the officer had wondered don't come up behind anderson is the one who is going into the house and up stairs to get the drugs right was it that was him yes just as well i'm not sure the names but he was the one that was going to go with the son and possibly the husband of stairs to get the drugs he went with the someone in with the husband and he had a dog provided at the husband's request a dog a canine drug dog because at that point you have children that are ingested  drugs that are unsupervised and you don't know what is going on there investigation there is case law where they say i know there's drugs in there it's been reported that there's drugs in there we're going to wait out here for a bit more or you're going to say it's ok to go in oh they went in husband the son and anderson when i can understand everything right up till that point i cannot understand how she got thrown to the ok and i guess that's that's where my problem is because up to that point i see an ongoing criminal investigation i got to report to somebody who was in somebody showed up in my house in the middle of the night that wouldn't matter what the police try to find out who that that there's a patio that's outside in the fire and there's a step that that's brick and right in front of the house say you know for buy or something like that so large let me get let me see if i  inside the house already when this happened but she was approaching anderson at a fast pace wasn't he inside the house when all is happening he was going into the house he was going to ring him yes you're there is a disagreement among the parties that offer anderson was already in the house and the door was closed when she comes and tries to get into that later point we think it's more contemporaneous judge reed o'connor thinks it's more contemporaneous the audio of this or that shows it to be much more contemporaneous than portrayed by  why is it that the police she invited them into the house and they said they wouldn't go is there some and i'm missing the significance of that i mean why why did they say they wouldn't go on trying to remember i think she invites the police into the home on two separate occasions prior to the children coming out i don't exactly recall going on consequently i don't know as well just as king i don't know why they did not go into that house at that  time i don't know as a constitutional significance or not but it just is puzzling to me when i listen to the to the tapes the officer is is telling her to be quiet  n she's telling her child don't you see why you shouldn't be doing this and he's not even home and his parents have control of the house and like she's given him the cut a lecture this you i would think would be in favor of giving them your earlier comment in your argument today and they're telling her to be quiet even though the other officer is given the son caught of the same lecture except at a heightened level because we once he gets to where the mother is in the difficult spot on the ground he's saying do you see you cause that and that's that's your fault because you're doing this which i don't know that that's so why is she being told to shut up when she's talking to her child about why he shouldn't be doing this it seem like that was a parental normal thing and he's they're not in an official some sort of interrogation that in fact when they couldn't really even talk to the kids without the listening to the audio shows that she is coming on the scene and asking the officers questions and disrupting the investigation officer lou not at the outset says miss west out of step over here and let me bring you up to speed did the same thing with mr westfall as well step over here let me tell you what's going on she refuses she continues on nate anderson is stop talking to are because of these kinds of activities not the helpful motherly comments parental comments that you're talking about the interfering distracting comments that i'm talking about trevino has stopped the conversation as well live in the us supervising officer corporal luna comes on says kid step over here let's talk step over here let's let me bring you up to speed let me tell you what's going on she refuses that she continues on and he says i need you to be quiet you can't stand here and interfere with the conversations that are going on or you need to go inside she refuses that you want the conversations going on i'm not talking about as a practical matter whether it's a good idea and should we all comply with the police and isn't that good but she could just say you can't talk to my minor child at interfere with the investigation but she has a right to be right next to him during the whole thing doesn't she as long as she obeys the law she does but they can't talk to him anymore and if she's not stand in there can they i think they can they can reasonable i think they can talk to the minor now if the bar owner asked for a lawyer if the parent asked for a lawyer for the minor i think that's different i think the parents entitle the bigger their but during the investigation the criminal investigation they're trying to figure out if there is a crime going on and if there's any more danger so i think they can talk to the mine in those circumstances i think they should talk the minor especially if it's  to finish up with the conversation officer luna says you know you could go inside she doesn't want to do that in the he says i can't talk to you anymore so what we have is not a breakdown in those communications so that when she does go running pursuing nate anderson it is a serious problem and the officers object reasonably can respond to that i've seen griggs versus brewer and i agree with with justice graves and i've seen the cases that you've ruled on to in some of these situations where function has become dysfunction law enforcement is here to bring things back to a peaceful conclusion miss westfall was put on the ground but was put on the ground in in a in a delicate way in which the all law enforcement officers apply their trade she could have been seriously injured she so what about the time that she spent in the car before she went to the medical treatment less than an hour before the time that she got arrested till the time she was in the hospital i think they she gets in the car two thirty five i think they make the call at three o five in the paramedics show at three fifteen that operation was done and conducted in a manage scenario so that the injuries were de minimus to minimal it was painful it was humiliating we don't want to repeat it on a lot of levels but with that said that's where this thing ended  practiced before this court for thirty years i am very humbled to be here and i'm very appreciative of the responsibility in the privilege of working with law enforcement officers that have been clients who motto is to protect and serve in my research in this case today not something i think is interesting and very telling i found a saying that said some people are very concerned about law and order and other people are very concerned about justice the reality is that these people will have neither until they have both you or does the job to make sure that law and order and justice is provided we probably know and i think you should know that thank you justices thank you think we have your argument thank you i'd like to respond to a few things that the police said in their argument but before i do that the first thing i want to do is clear up something i said about the record that i think was inaccurate and when asked about whether or not the consent was expressly withdrawn before the her house i said it had to be implied it was not expressed it was drawn it was mistaken about the record it was expressed withdrawn this is an issue actually that's not disputed between us so i'm going to read from a pelleas brief page eleven where they're talking is going into the house they say plaintiff continued to protest saying let me go i don't want you people to go up there so i think it's uncontested that she did in fact expressly withdraw any consent into the house before as as often as it was entering and i'm sorry that i missed and miss and miss her recalled the record on that and the next thing i want to talk about is the first thing that a police mentioned was the i investigation i just like to point out that that is not in the summary judgment record it represented that mrs was false said go get it and then they entered the house and what mrs westfall said was her son's name come go get it not just go get it so it's clear who she's she's directing that statement to  at the time she makes it and i'd like to respond to the police officers are called when dysfunction is at its peak and there's also case law including williams versus kaufman by this court where this court has recognized that when police create  dysfunction and create one please create create chaos they can then use that chaos to justify further violations of constitutional rights and i would posit that that's the kind of scenario we have here mentioned that the officers called the house several times and that's when the teenaged boys came to the door they came to the door because they were instructed on the phone to go to the door and then when they went to the door they were instructed by the police to come outside so this was not a voluntary act on their part and with respect to the ongoing investigation issue i'd like to point out a few things and ongoing investigation gets a place some authority to act but i think when it comes in conflict when the actions they want to take to continue the investigation comes into conflict with a private citizen's rights that's where the authority and unless there's something that further justifies violating the or further justifies an imposition onto the constitutional rights t private citizens such as existent circumstances again there were no exigent circumstances here the boys were fleeing arrest but were severed they were they investigating an ongoing crime they may have been well they were to go on an ongoing crime no it was a crime that had terminated at the time the call to nine one was made but they were investigating a crime that had been recorded and they're free to do that up until the point that their investigation comes head to head with a private citizens constitutional rights and at that point we get into a body of law about when they have the right to to to and to interfere with the private citizens constitutional rights there are there are circumstances that will justify what would otherwise be a violation of a constitutional right like exigent circumstances but those circumstances were present here and i'd also like to point out one comment just screams that you made was about a someone came to your house and all the night you would want the police to find out who it was it did that just i'd also like to point out the record does demonstrate at least to some degree what the officers knew at the time of arrival on the scene because there are the police records of what is said over the police radio so it they do know things like these are two teenage boys and they left the house when they were told to leave and things like that are known to the officers when they arrive on the scene they can be heard talking on the radio and they can be heard receiving these communications with respect to the invasions occurred and lead to the house and that is reflected on the audio records you can hear the gate creek you can hear them looking in windows knocking on windows talking about looking through windows in the backyard i don't know that every detail of it is an audio records but certainly it's consistent with the audio records if those are