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Did I need a complainant?


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  • Did I need a complainant?

    Another officer at our small department and I have been debating a recent situation. He says I was in the wrong and needed a complainant and I say I didn't. Thanks in advance for your thoughts!

    Here's the situation:

    Around 21:00 on a weeknight I was on patrol with windows open. Coming down a residential street with home spaced approximately every 50 yards or less, I heard very loud music (live drums and guitar, hard rock) and traced it to a home approximately 300-400 yards from where I originally heard it (440 yards in a quarter mile). Drawing on my professional experience in the late 80's as a car stereo installer I estimated the decibels at the origination point to be well in excess of 85db (approximately that of a vacuum cleaner on carpet) and quite possibly as high as 100 or more.

    The home and driveway were surrounded by a fence containing two large and barking, but not necessarily aggressive, black labs. Alternating between siren and air horn I was able to get the homeowners attention and he walked out into the yard. I asked the man to come to the fence so we could talk and he did. I explained that I had heard his music from "around the corner and blocks away" and asked him to "turn the amps down". He asked who had complained or if anyone had complained and I told him that there had not been a complaint but that I had heard it firsthand. He stated that in 2.5 years nobody had ever complained and he didn't want to turn it down.

    I explained that I was asking him "Please turn it down so that it doesn't become a complaint and then a problem for everyone". He stated that I didn't have the right to tell him to turn it down and I said "Sir, at this point I am only asking you to keep it down out of respect for your neighbors so that it doesn't become a problem. I'm not asking you to quit playing, just tone it down a bit". Seeing him become rigid and physically tense I added "Unless we have another problem here I don't see, I'll leave here only asking and I'd appreciate your respect so it doesn't have to become me telling instead of asking." He replied that there was no other problem, he would turn it down a bit, and that he would talk to the Mayor.

    Sure enough, the next day he verbally complained to the Mayor (Chief was out sick) that I had harassed him and violated his civil rights. Her (Mayor) response was that she would "talk to the officer". The net result is that she mentioned it to me, asked my side, and assured me the issue was dropped.

    Still being relatively new to the job, I'm curious if I was indeed wrong and if so why/how. We don't have a "Noise Ordinance", but Title 9, Chapter 42 of the Texas Penal Code states that a "person commits an offense if he intentionally or knowingly":

    "(5) makes unreasonable noise in a public place other
    than a sport shooting range, as defined by Section 250.001, Local
    Government Code, or in or near a private residence that he has no
    right to occupy;"

    Being that the home where the music was being played was 20-50 yards from 3-5 other homes across the street, behind, and beside it I assumed that the man was indeed "near a private residence that he has no right to occupy;".

    The same section of the Penal Code also states:
    "(c) For purposes of this section:
    (1) an act is deemed to occur in a public place or near
    a private residence if it produces its offensive or proscribed
    consequences in the public place or near a private residence; and
    (2) a noise is presumed to be unreasonable if the noise
    exceeds a decibel level of 85 after the person making the noise
    receives notice from a magistrate or peace officer that the noise is
    a public nuisance."

    So, was I wrong and I should have had a complaint? Is this all null since he was in his own home? Is there something I'm missing and/or was my thought process wrong? I'm not worried about being wrong or right, I want to be sure I understand the law and that I'm connecting the dots properly...

    For reference, Title 9, Chapter 42 of the Texas Penal Code is available here:
    Opinions expressed in my posts are mine and mine alone. They do not represent the views of any employer, past, present, or future.

  • #2
    Sounds fine to me....Being able to hear the music that loud from so far away would certainly fall under "unreasonable noise". Especially in a residential area at 2100 on a week night.


    • #3
      Self initiated complaint. You did fine.
      "Valor would cease to be a virtue, if there were no injustice." -Agesilaus the Great


      • #4
        While on duty, your peace cannot be disturbed.

        Although you initiated the contact without a complaint, the way the statute is written, you may be covered; however, without a firm decible reading and, at least a complaint from a neighbor, you may have overstepped your lines of authority.

        I may well have done the same as you since I detest irresponsible noise makers. But, you do tread on thin ice when you do so without a firm platform of neighbors who are disturbed by the noise. Nest time, cruise the neighborhood and perhaps a neighbor will contact you and ask you to do something about the noise. That will definitely give you the necessary groundwork to take stronger action against the offender when s/he complains against you.
        Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence!

        [George Washington (1732 - 1799)]


        • #5
          At risk of playing devil's advocate

          I would take a close look at case law for your state.

          California also has a disturbing the peace law regarding loud and unusual noise. However, our courts have ruled that because you are mobile while on duty, an officer's peace cannot be disturbed and you need a complainant in order to enforce this type of violation.

          The DB level is another issue. Unless you can give an exact and calibrated measurement of the sound level, using your expertise as a stereo installer 20 years ago as the sole basis for determining that the music exceeded 85 DB should get your case bounced out of court rather quickly. It may well have been 150 DB, but unless you can produce an accurate measurement and figure, I suspect that your best guess won't count with the court.
          Going too far is half the pleasure of not getting anywhere


          • #6
            I've been in LE for about ten years here in Texas and I have never ever stepped out on a loud noise complaint without a complainant. Now, that being said, do you need a complainant to issue a citation or even take the offender to jail?? Maybe...maybe not, as some complainants do not wish to speak to us after they've made the call. I have made the threat that if I come back again, due to a complaint, then I will issue a citation and a third time will result in arrest. I haven't had to come back yet.

            In my experience though, yes, you need a complainant for the initial contact. Kinda goes with DOC, your peace can't be breached. BUT, what if someone curses repeatedly in a public place, but no one comes up to you and says, Hey officer, I'm offended by that language. Can you arrest for DOC - profane language? It is an offense in your view, but you can't be offended by the language. I can tell you several of our Deputies have made the arrest...but we roll differently in our county than many of the others.
            Moooooooooooo, I'm a goat


            • #7
              Our city ordinances doesn't require a complainant. How do you stop vehicle with excessively loud stereos? If I stop you and use that law...or hear it from your house, I am the complainant.

              I don't agree with your opinion, but I respect its straightforwardness in terms of wrongness.


              • #8
                If I am reading your post correctly, you make it appear that the guy's music was occupying his neighbor's residence in violation of the statute. Generally, "to occupy" illegally requires a physical presence at the location and music doesn't count as such. So, unless the rude neighbor was illegally occupying the residence in question where he was playing it, you don't have a violation of the statute.

                According to your posted statutes three things must exist before the person can be charged:

                1-You first need noise in excess of 85dba
                2-You need to have a public nuisance created by it
                3-You then need to notice the offender that the noise is creating a public nuisance.

                You seem to be lacking a member of the public here as a complainant to make the charge work. For example, arresting a person on a disorderly conduct charge for screaming in a public park would only work if other people were present in the park other than the officer. Without other people in the park present, the charge doesn't hold water, which seems to be your case. A person screaming in a public park without any other people being present doesn’t violate the disorderly conduct law.

                In addition, in order to enforce violations relating to noise violations with legally proscribed decibel level prohibitions, generally, you need to be certified to do this. Most courts require a calibrated device to verify an officer's estimate or at least training that officer’s estimate is valid and not just discretionary. Courts don’t like any law that leaves the enforcement at the discretion of the officer’s judgment as to whether they were violating it. Generally, they want it in black and white before it is “good law”.

                Although nothing you did was unlawful, it appears you could not have issued a citation for the rude neighbor's conduct. You did have every right to approach and ask him to turn the music down, he just didn’t have to. If he had said “no” without a public complainant, you would have had to find one to justify a citation or take any additional action.

                PS. My legal experience is in New York law, not Texas law, so you need to look up what each legal term means in your statutes to make sure you’re correct before enforcing anything. NY legal opinions in what “occupy”, “public nuisance”, and “notice” mean or how they are applied here may be different than what Texas courts define them as.


                • #9
                  Why even mess with it without a complainant? This is a perfect example of trying to be pro-active biting you in the butt. Believe me, I've been there and done that as well...after some time, you'll learn to choose your "battles" so to speak.


                  • #10

                    Originally posted by Smurfette_76 View Post
                    Our city ordinances doesn't require a complainant. How do you stop vehicle with excessively loud stereos? If I stop you and use that law...or hear it from your house, I am the complainant.
                    Yeah, NY has V&T violations that deal specifically with noise complainants regarding vehicles and the police officr can charge them directly. Anything else has to go through penal or Town codes and usually they require a complainant.

                    In NYC, I used a B&K sound meter to issue criminal summonses to clubs whose noise levels exceeded the proscribed limits. If I remember correctly, it was in excess of 70 decibels 36" from an open window in the complainant's apartment.


                    • #11
                      I don't see anything wrong with having a conversation with the guy, as long as you are saying, "Look, no one's complained, but it's pretty loud and someone might. If I am sent all the way back over here for loud music, there will be a citation issued."

                      Our city ordinance doesn't allow me to be the complainant, either. But it also doesn't require that I issue a warning on the first citizen call. I figure it's community policing; I talk to a citizen and give him one for free. Everybody wins.

                      Smurfette, cars are different in my city. We have a separate ordinance for them; audible from 30 feet is cite-able.
                      If trees could scream, would we be so cavalier about cutting them down? We might, if they screamed all the time, for no good reason.

                      ---Jack Handey


                      • #12
                        Originally posted by Smurfette_76 View Post
                        Our city ordinances doesn't require a complainant. How do you stop vehicle with excessively loud stereos? If I stop you and use that law...or hear it from your house, I am the complainant.

                        We have a city ordinance too, and we don't need someone to complain either.
                        “We don't disagree, you are wrong. Until you have a clue what you are talking about we can't disagree.” - cgh6366


                        • #13
                          SgtCHP, we're in a low income, high drug use area. The few folks that stop me on patrol to talk usually just want to throw somebody else under the bus to get heat off them (ie everybody "else" is dealing/holding/using but not them). I could easily see where this guy's neighbors haven't complained in 2.5 years due to fear/intimidation, not because they like the volume of his music. You don't see many single moms with young kids working at Wal-Mart, retirees living on Social Security, or ex-cons trying to stay clean & free who have the nerve to complain about some drunken, white-trash, dope-smokers' "band practice". Still, those folks are who I do the job for...

                          L-1, I understand your point about not having a calibrated measurement. Since I wasn't writing a citation I didn't see a need as I was trying to keep it a consensual encounter. I never asked him to step outside his fence and was very clear about "asking" him to lower the volume versus "telling" him to do so in hopes of keeping it all casual...

                          JSD73, we roll a bit differently out our way as well. The "client base" in our neck of the woods requires it at both the town and county levels. Even so, I'm still working to understand the lines that trace the envelope of our powers. They tend to blur a bit in places. To say the least...

                          Smurfette, I stop "boom box" vehicles as a safety issue (no ordinances). After asking them for their DL and insurance (always required here to operate a vehicle), it's a simple "Sir, I stopped you out of concern for your safety as a courtesy. I'm not sure if you realized it, but the volume of your stereo could very well prevent you from hearing emergency vehicles and I'm sure you wouldn't want that. Right?"...

                          DH21187, in hindsight, I think you pretty well covered it. Nothing I did was wrong or illegal, but I certainly could not have scratched a citation without a complaint. I'll chalk it up to pro-active community policing and keep it all in mind next time...

                          I appreciate everyone's input...
                          Opinions expressed in my posts are mine and mine alone. They do not represent the views of any employer, past, present, or future.


                          • #14
                            The only way to figure out how badly the lines blur is to try something and see how it plays out.

                            I went to a call for a man and woman fighting at a residence, actually outside of their residence inside of a school bus (she is a bus driver). When I got there, he was in the house, she was outside...both had been drinking. I knew if I left, another disturbance would occur and she stated he hit her in the eye with a phone, didn't want to file charges, and had nary a mark on her indicating any type of physical violence.

                            He denied hitting her, had no marks on his hands or otherwise indicating he had, and was drunker than cooter brown. Witnesses advised me that they observed him outside of the residence, essentially intoxicated in public. Based on his behavior, that I had someone who could place him in a public place prior to my arrival, and that he was, in my opinion, a danger to himself and/or the general public based on his level of intoxication and his actions, I arrested him for PI, even though he wasn't outside when I got there. Now, I've never done that before and I don't know if it would even hold up in JP court...but I did it. Sometimes you just gotta step outside the box just a bit and see if it holds weight....and can you articulate why you did what you did. Seems to me, even though you needed a complainant, you basically did a knock n talk and there is NOTHING wrong with that.
                            Moooooooooooo, I'm a goat


                            • #15
                              I'd say you are good...I've done this several times myself? Why wait until it becomes a problem and you have to come all the way back to handle a dispatched call for noise compalint? Nip it while you re there. You were polite and respectful. Don't worry.
                              Perseverate In Pugna


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