Raid at hot dog joint preceded Kmart bust

Houston police Capt. Mark Aguirre, the man who ordered the arrests of 278 people at a westside Kmart last weekend, prodded a local restaurant to allow his officers to conduct a similar raid of its parking lot Saturday in a sting that netted 25 arrests.

Officials with the James Coney Island at 5745 Westheimer said they felt used after police swept in and arrested 25 people, some of whom were customers, for criminal trespass.

"We were cooperative with the idea (of the raid), but are not necessarily happy with the execution," said Darrin Straughan, a vice president with the restaurant chain. "We are victims here, too. We never imagined that this is the way it would be handled or that legitimate customers would be arrested."

Straughan said Aguirre approached the company two weeks ago and told restaurant officials that illegal drag racing along Westheimer had caused several fatal accidents and prompted neighborhood complaints. Aguirre asked the company to post four no-trespassing signs in the parking lot and to sign paperwork allowing police to make the arrests on the restaurant's property.

Company officials went along with Aguirre's plan, Straughan said, thinking their actions would be part of a subdued enforcement of city trespassing ordinances.

Instead, a swarm of officers backed by a police helicopter descended on the restaurant about 1:15 a.m. Saturday, rounding up customers and other people gathered in the parking lot. Police said the arrests continued until 4:30 a.m.

Most of those arrested, Straughan said, were among a group of motorcyclists that has gathered at the restaurant every weekend for nine years without problems.

Monica Coello, 36, was finishing a meal in the parking lot with her brother, sister, sister-in-law and 2-year-old niece when she was arrested.

"We were almost ready to leave when all the patrol cars came in and started blocking the entrances and exits," Coello said. "I wanted to lock my car, and they would not let me. They told me to shut up and walk to the back."

Coello's sister-in-law and niece were left behind, stranded. Police took Coello, her brother and sister to jail. Eventually, their mother shelled out $900 in bail, and the three siblings were freed.

"I don't see how they can call it trespassing when we were eating at the restaurant," she said. "We kept trying to explain that to police but they would not let us."

Coello's complaint is similar to that of dozens, if not hundreds, of people arrested at a Kmart and Sonic Drive-In in the 8400 block of Westheimer just after midnight Sunday.

In that incident, dozens of police -- led by Aguirre and again targeting illegal drag racing -- raided the businesses' parking lots about 12:30 a.m. Several officers said that when no evidence of drag racing was found, Aguirre ordered the arrests of the 278 people gathered there.

Those arrests prompted complaints that police failed to discriminate between loitering teens and legitimate customers when making arrests.

Straughan said James Coney Island has received about 50 customer complaints about the arrests, and the company believes that the police violated their agreement with the restaurant.

"We signed a trespass affidavit that said `James Coney Island requests on our behalf that the Houston Police Department requests all persons who are not patrons in the normal course of business to immediately leave the property or be arrested,' " Straughan said, quoting the agreement.

"From what we have learned, nobody that HPD arrested was asked whether they were there as a customer," he said. The police "just showed up, blocked off entrances, and arrested everybody."

Straughan declined to comment on Aguirre, but he said the company plans to file a complaint with the Police Department. Officials with Kmart did not respond to calls for comment.

Police spokesman Robert Hurst said Wednesday that he couldn't speak about Straughan's concerns because police are investigating Sunday's arrests in the Kmart parking lot. Hurst declined to say whether the incidents at James Coney Island would be part of that investigation.

As police and the district attorney's office attempt to sort out Sunday's mass arrests at Kmart and Sonic Drive-In, local defense lawyers say such raids are "arrest them first and ask questions later" situations that leave room for many legal challenges.

Lawyers questioned whether the no-trespassing signs posted before the arrests are sufficient warning for a criminal trespassing arrest.

"When you have got 400 kids in a parking lot, signs are obscured," said Chip Lewis, a Houston defense lawyer. "The best notice would have been to give them formal citations. There was no reason for this to come to this many arrests."

Citations would have provided adequate warning that arrests could follow, said lawyer Anthony Osso.

"It is extremely indicative of the mentality of whoever was in charge that when they had the option of giving a citation in lieu of arresting someone, they chose to make arrests," Osso said. "Those arrests were unnecessary."

Several lawyers interviewed Wednesday said those who pleaded guilty after their arrests Sunday can request a trial, arguing that their pleas were made under duress. Many of those who pleaded guilty, some of whom were teenagers, said they did so to avoid spending another night in jail.

"They were still under the shock that many of them were arrested without just cause," said Osso. "If you have never been in trouble before, and you believe the police are there to protect you, you will plead if they say you can get out."

Members of City Council said Wednesday that they had received many e-mails and phone calls regarding the weekend arrests and that the public seems outraged about the operation.

"You have young kids whose lives are now forever marked by having been arrested for criminal trespassing ... in what seems like it wasn't an appropriate endeavor," said Councilman Gabriel Vasquez.

Councilman Gordon Quan said he was worried about young people having to report the arrests when applying to college or for jobs.

"We could have resolved this with citations more easily," Quan said. "I'd like to see if there's any way that possibly can be changed."

Mayor Lee Brown said he has asked the city's Office of Inspector General to speed up its investigation.

"They are looking at all aspects of what happened that night," Brown said. "There are still a lot of questions."

I also find it very interesting that parents are now questioning the police when many had obviously not been questioning their teens over the past few months to find out where their child was and what he or she was doing. Is this belated reaction to the arrests really just guilt because the parents were in denial about what had been going on? Would these parents rather wait until their child died or killed someone else in a street-racing accident?

My sentiments exactly about the attitudes of some of the parents.

The cops made some mistakes if they arrested legitimate Sonic customers who were not part of the crowd (but there is no evidence they did), but I see no reason to drop any charges against the others arrested in light of what this neighbor says.

It is rather amazing how you see only what you want to see, and flatly deny the existence of anything which contradicts that.

I recall the article that said cops handed out cards to all patrons who were there legitimately. If anyone was arrested at Sonic, it would be because the cops saw that they were not legitimate customers. And again, without knowing the layout of the parking lot, its senseless to argue about anything that happened at Sonic.

"Monica Coello, 36, was finishing a meal in the parking lot with her brother, sister, sister-in-law and 2-year-old niece when she was arrested. "

". One of the kids parents obviously wasn't there. The mother of them all was at her home. This all sounds strange."

The 2 year old is Monicas niece. Monicas brother is the childs father and Monicas sister-in-law is the childs mother. Monica is 36 and her brother and sister would presumably be of a similar age which is certainly old enough to be out without their mother.

The only thing strange is that a 2 year old would be up that late, but there are circumstances that could provide a reasonable explaination for that as well. Also for your information, police cannot arrest a 2 year old, and they also cannot arrest her mother because to do so would leave the child unattended. Hope this clears up your confusion.

"I'm also happy the cars got towed. I've seen and heard these cars weekend after weekend, and I hope the towing fee on top of any arrest fine will hit these teens and their parents in their pocketbooks. Often (and sadly) it is only after money becomes involved that people sit up and take note. "

Well the way the police handled this it will be the Houston tax payer who takes the hit in the pocket book. Thx for the ping niki.

Sorry, I missed that. I didn't make that connection.

The only thing strange is that a 2 year old would be up that late, but there are circumstances that could provide a reasonable explaination for that as well.

Possibly so.

Also for your information, police cannot arrest a 2 year old, and they also cannot arrest her mother because to do so would leave the child unattended. Hope this clears up your confusion

Well, they wont arrest a two-year old, but the child will be taken into custody. Try robbing a store with a young child in your custody, and tell the cops you can't be arrested because a child is with you. If you are breaking the law, you will be arrested. The kid will end up at Child Welfare or, if the cops are nice, they will let a responsible relative take custody. Its odd here that the cops insisted that everyone there was breaking the law, but let the sister-in-law go. They probably didn't have time to deal with the kid.

I'm finally starting to see the impeccable logic of libertarianism. Lest one innocent soul suffer unlawful infringement of his unalienable rights by government, government and law enforcement must be eliminated. Free, free, free at last!

LOL...as opposed to the fine nuance you bring to this discussion?

The article didn't say that. "I recall the article that said cops handed out cards to all patrons who were there legitimately." Rather that is what the police claimed they did.

I'm not a Texas lawyer (California instead), but its law on trespass as reported by Texans on the Freep sounds similar to California law. The police can't make custodial arrests of people for trespass on private property in the absence of some form of authorization from the property owner. Posting a No Trespassing sign is generally sufficient, but often the property owners ask the police to act.

Nowhere has it been reported, that I've seen, that the property owners/store personnel asked the police to arrest trespassers or that no trespassing signs were posted (there wouldn't be those in parking lots - stores want customers to come in). Furthermore one of the news stories mentioned, and I saw in a TV clip, that the Houston PD chief wanted to know why the hell people were being arrested instead of cited.

All this together tells me that arresting ANYONE for trespass in these incidents is a per se violation of at least official police procedure, and most likely flat out illegal.

If anyone was arrested at Sonic, it would be because the cops saw that they were not legitimate customers.

Since some of the people who were arrested had receipts showing that they were engaged in commerce with Sonic at the time of the arrest, then the cops did NOT see correctly. Maybe your supercops have ESP.

"Its odd here that the cops insisted that everyone there was breaking the law, but let the sister-in-law go. "

Kinda makes the point that even the police knew that what they were doing was wrong. Someone with an ounce of common since realized that arresting the childs mother would not only be wrong but probably criminal and decided he didn't want to go to prision.

I agree that they should have been cited. I think it still remains to be seen if someone from K-Mart had ever complained, though.

In the case of "trespass" after dark though, according to the laws you know, would it be ok for the cops to detain the kids, then call the property owner(or manager on duty) and ask if he/she would like to have the children arrested fro trespassing? Is it not customary for police, when observing suspicious behavior after dark, to determine what's going on? Wouldn't this entail contacting the property owner to ask if permission had been given to occupy the prperty, and if not, should the persons be arrested?

One more question? If K-Mart wasn't open 24 hours, and there was no restaurant next door, would this be different in your opinion?

That's funny. I recall posting a picture on that thread of three women who were arrested at Sonic showing a receipt for food they had purchased at 12:35 a.m.

There was an article posted yesterday where the cops claimed that plain-clothes officers handed out "cards" to legitimate customers. I don't know if thats true or not. Maybe they saw the girls in the picture drive over from the crowd in the K-Mart parking lot.

The problem is this: We are talking about a cowd of over 400 that was of a specific age group. Yes, some, or many at some point that nite, patronized Sonic. The girls in the picture were obviously within the age group of the crowd. Given that this is a known hang out for kids this age, it is HIGHLY unlikely that these girls were not there as part of the crowd.

Im not defending the cops for arresting anyone. They shouldn't have done that really, they should have been cited first. I am simply defending the right of the police to disperse the crowd and protect neighbors and passersby from the nuisance and danger that the actions of the crowd present - A notion/right that many posters seem to deny.

Can we agree that per neighbors reports, these kids were a nuisance, and posed a danger by street racing, and that law enforcement has a right to disperse the crowd(although arresting them was the wrong thing)?

Since some of the people who were arrested had receipts showing that they were engaged in commerce with Sonic at the time of the arrest, then the cops did NOT see correctly.

Although this is silly to continue this since I'm not defending the cops for arresting anyone, I'll state this again. I feel that it is highly unlikely, given that this was a known hang out for teens, that anyone in the age group of the crowd was not part of the crowd that had apparently been doing this for ten months.

We can agree that the neighbors believed they were a nuisance, and if I lived next door to that parking lot I know that I would certainly feel that way. But I don't agree that they were an illegal nuisance because they weren't doing anything illegal under Texas law.

They were not street racing in that parking lot. The allegation is that some of those same kids were probably meeting there and going someplace else to race. I don't know if that's true or not, but let's assume it's true. So what? It's the someplace else where street racing was happening.

The police do not have a right to disperse a crowd on private property unless that crowd is engaged in illegal behavior or activities. As I have tried to explain to you several times, the police cannot arrest, or even cite, someone for trespass on a parking lot until the property owner has asked the people to leave and the people refuse. You refuse to accept that as an answer because you believe the police ought to have that right.

But they don't. The law doesn't give them that right.

The police do not have a right to disperse a crowd on private property unless that crowd is engaged in illegal behavior or activities.

And this is where "common sense" replaces "just following orders". A cop sees 400+ people, some of which appear to be younger than 18, thus breaking curfew(crime). Simply at this point, the police would have every right to approach the crowd, and make sure those who look under 18 aren't. Secondly, using common sense, police know(given the complaints fron neighbors) that a crowd of 400+ congregated on private property that they do not own, after dark, were not invited. The neighbors complaint said the people raced in the lot, and up and down the main street that the K-Mart fronted on. Using common sense, everyone, including dumb cops, know the crowd a)was not suposed to be there and b)was congregating for the purpose of committing other, unlawful acts. This is more than enough LEGAL reason to disperse the crowd.

But I don't agree that they were an illegal nuisance because they weren't doing anything illegal under Texas law.

Um, most counties and municipalities have laws against "nuisances" such as noise after dark. I bet if we looked at a full list of State, city and county laws, we could find several that were being violated.

Enforcing curfew is fine against the juveniles as long as they're in a public place, which parking lots are. It doesn't matter what the property owner says. Curfew laws protect the public. Trespass laws protect property owners, not the public, and violations can be waived by the property owner. That's why the police must check with the property owner first.

Your second question depends on what signs were posted in the KMart parking lot. Many California shopping centers have parking lot signs prohibiting loitering after business hours, and also have pre-existing agreements with the police to enforce the trepass laws when the centers are closed.

Even so, almost all California trespass offense prosecutions are initiated by citation rather than arrest. Arrests generally follow failure to disperse when ordered, and then the charge is failure to obey a lawful police order rather than trespass. Trespass charges, when they're filed, are added later after the police check with the property owner.

The angry reaction of Houston's police chief indicates it is the same way there. Captain Vierra not merely screwed up by ordering trespass arrests instead of citations, but he may have exposed himself to criminal charges.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.