TX1: Show of force and firing a gun while ordering defendant to come out was not consent

Numerous officers came to defendant’s house with a warrant to only enter the curtilage to look for municipal code violations. They surrounded his house and banged on doors and windows and ordered him to come out because they weren’t leaving. One of them fired a shotgun. When he came out, they argued it was by consent. Not hardly. Orosco v. State, 394 S.W.3d 65 (Tex. App. – Houston (1st Dist.) 2012):

“Opening the door to one’s home is not voluntary if ordered to do so under color of authority.” Reeves, 524 F.3d at 1167. “If an individual’s decision to open the door to his home to the police is not made voluntarily, the individual is seized inside his home.” Id. “A reasonable person faced with several police officers consistently knocking and yelling at their door for twenty minutes in the early morning hours would not feel free to ignore the officers’ implicit command to open the door.” Id.

Under these circumstances, it cannot be said that appellant voluntarily exposed himself to a warrantless arrest by leaving the confines of his home. After searching the property before daylight, seven officers surrounded the home, knocked on doors and windows for 20 to 30 minutes, and discharged a weapon before appellant exited the house. As the officers themselves testified, they were not leaving the premises, nor allowing anyone else to enter or leave the premises, until appellant answered the door and responded to their questioning. In effect, appellant’s home was under siege when he finally consented to come outside. Because he answered the door in response to an unreasonable show of authority by the officers, he was unconstitutionally seized at that time. See Hernandez, 392 F. App’x at 353; Reeves, 524 F. 3d at 1169. Thus, we turn to the issue of whether appellant’s subsequent consent to search was sufficiently attenuated from his unconstitutional seizure.