DBMA Martial Arts Forum > Martial Arts Topics
Citizen-Police interactions
Crafty_Dog:
Woof All:
Although there is already a LEO issues thread, the focus here is a bit different. We are also looking at the rights of the citizen.
TAC
CD
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By CWS on the WT forum:
This of course does not deal with the issue of a drug dog having a legal right to be brought by police to sniff your car (the Caballes case), but one thing is for sure. If you grant permission to search, search they will. And find they will. If all you have is an unlicensed weapon in your car, and no drugs, are you really worried about what a drug sniffing dog will find?
Secondly, even if you have drugs in the car, I am not sure an officer can hold you up indefinitely awaiting a drug dog to come sniff your car. One key element of the Caballes decision was that the whole matter occurred in 10 minutes, and during the time period the officer was still legitimately in ticket writing mode.
From the Caballes case: "A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained."
KNOWLES v. IOWA
certiorari to the supreme court of iowa
No. 97-7597. Argued November 3, 1998--Decided December 8, 1998
An Iowa policeman stopped petitioner Knowles for speeding and issued him a citation rather than arresting him. The officer then conducted a full search of the car, without either Knowles' consent or probable cause, found marijuana and a "pot pipe," and arrested Knowles. Before his trial on state drug charges, Knowles moved to suppress the evidence, arguing that because he had not been arrested, the search could not be sustained under the "search incident to arrest" exception recognized in United States v. Robinson, 414 U. S. 218 . The trial court denied the motion and found Knowles guilty, based on state law giving officers authority to conduct a full-blown search of an automobile and driver where they issue a citation instead of making a custodial arrest. In affirming, the State Supreme Court applied its bright-line "search incident to citation" exception to the Fourth Amendment's warrant requirement, reasoning that so long as the officer had probable cause to make a custodial arrest, there need not in fact have been an arrest.
Held: The search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment. Neither of the two historical exceptions for the "search incident to arrest" exception, see Robinson, supra, at 234, is sufficient to justify the search in the present case. First, the threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained. Iowa's argument that a "search incident to citation" is justified because a suspect may try to hide evidence of his identity or of other crimes is unpersuasive. An officer may arrest a driver if he is not satisfied with the identification furnished, and the possibility that an officer would stumble onto evidence of an unrelated offense seems remote. Pp. 3-6.
569 N. W. 2d 601, reversed and remanded.
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Question:
As I understand it with a Terry Stop, wouldn't the motorist be free to go if he does not consent to a search given that asking for consent means the officer has no PC and has already given out the speeding ticket?
CWS:
From the actual Terry case:
"Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27.
(a) Though the police must, whenever practicable, secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20.
(b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22.
(c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22.
(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.
(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26.
(f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27.
http://www.law.cornell.edu/supct/html/03-923.ZO.html - Caballes case
http://www.law.cornell.edu/supct/html/97-7597.ZS.html - Knowles case
Crafty_Dog:
http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070718/NATION/107180075/1001
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Border case defended
By Jerry Seper
July 18, 2007
The U.S. attorney whose office won convictions against two U.S. Border Patrol agents for shooting a fleeing drug-smuggling suspect in the buttocks yesterday described as "the big lie" accusations that the prosecutions were not justified.
During a rancorous Senate Judiciary Committee hearing, U.S. Attorney Johnny Sutton defiantly said agents Ignacio Ramos and Jose Alonso Compean, now serving lengthy prison terms, committed "serious crimes" in a case that was not about immigration issues or the Border Patrol but the rule of law.
"Agents Compean and Ramos crossed the line. They are not heroes," Mr. Sutton said. "They deliberately shot an unarmed man in the back without justification, destroyed evidence to cover it up and lied about it. A jury heard the facts and voted to convict.
"There is no one to blame for what has happened but themselves," he said.
But Sens. Dianne Feinstein, California Democrat, and John Cornyn, Texas Republican, questioned whether the 11- and 12-year prison sentences handed to Mr. Ramos and Mr. Compean, respectively, were justifiable and whether the decision to grant immunity to drug-smuggling suspect Osbaldo Aldrete-Davila was properly handled.
Mrs. Feinstein, who chaired the hearing, asked whether the government's priorities were "out of whack" when it made the immunity offer to "a drug trafficker," noting that Mr. Aldrete-Davila — who abandoned 743 pounds of drugs as he fled to Mexico — was "not an innocent who was caught in the wrong place at the wrong time."
"I find it hard to believe that someone trusted with $1 million in drugs is simply an amateur drug mule," she said.
Mr. Cornyn said he had "serious concerns about judgment calls" made during the case, adding that Mr. Sutton's office allowed Mr. Aldrete-Davila to violate the terms of his immunity agreement without consequences.
He and Mrs. Feinstein questioned Mr. Sutton on why the government gave Mr. Aldrete-Davila unlimited and unescorted access to the United States as part of the immunity agreement and whether he might have transported a second load of drugs into the country during that time.
They said that Mr. Aldrete-Davila re-entered the United States on at least 10 occasions from March to November 2005 and that the documentation authorized by the immunity agreement allowed him to cross the border legally at any time without notifying anyone and being unescorted.
"I would like to hear more about the policy that allows for this kind of unsupervised passage into our country and why someone who was known to smuggle in drugs would be given such flexibility," Mrs. Feinstein said.
Mr. Sutton acknowledged that a "humanitarian visa" given to Mr. Aldrete-Davila as part of the immunity agreement may have been "a mistake" but said it is necessary for his office to have access to would-be witnesses in pending cases — some of whom live in Mexico.
U.S. Drug Enforcement Administration (DEA) documents, which remain under seal, show that Mr. Aldrete-Davila was the focus of a drug investigation into his reported stashing of 750 pounds of marijuana at a house in Clint, Texas, in November 2005 — nine months after he was shot.
The DEA's investigative reports, according to law-enforcement authorities and others who have seen the documents, said that the owner of the house, Cipriano Ortiz-Hernandez, picked Mr. Aldrete-Davila from a photo display and that the homeowner's brother, Jose Ortiz, told agents that Mr. Aldrete-Davila brought the marijuana from Juarez, Mexico, and identified him as "the person who was shot by Border Patrol agents."
Mrs. Feinstein also questioned why the agents were charged under a federal statute setting a mandatory minimum of 10 years in prison. She said that as the law was written, it presupposes an underlying crime, adding that there was no underlying crime in the Ramos-Compean case.
She said the law needs to be clarified by Congress to prevent prosecutorial overcharging.
Ramos, 37, and Compean, 28, were sentenced in October on charges of causing serious bodily injury, assault with a deadly weapon, discharge of a firearm in relation to a crime of violence and a civil rights violation. The conviction came after Mr. Aldrete-Davila was located in Mexico by Homeland Security investigators.
In the packed audience was Patty Compean and Monica Ramos, both of whom shook their heads in disagreement when their husbands were accused of being responsible for the incident.
T.J. Bonner, president of the National Border Patrol Council, which represents all 11,000 of the agency's nonsupervisory personnel, disputed government claims that the agents were prosecuted because they shot an unarmed man, covered it up, destroyed evidence and filed false reports.
"Make no mistake about it — Osbaldo Aldrete-Davila was not simply a mule as the prosecution tried to claim who was looking to earn $1,000 so he could care for his sick mother," he said. "The wrongdoing here was bringing 743 pounds of marijuana into the country ... and the person who did that was granted immunity by our federal government."
Presidential candidate Rep. Duncan Hunter, the California Republican who introduced a bill calling for a congressional pardon for the agents, described their prosecution as "the most severe injustice I've ever seen with respect to the treatment of U.S. Border Patrol agents or, I might add, the treatment of any uniformed officers."
Rep. Dana Rohrbacher, California Republican, said the decision to give immunity to "the drug dealer and throw the book at the Border Patrol agents was a prosecutorial travesty."
"The whole episode stinks to high heaven," he said.
Defending Mr. Sutton were Border Patrol Chief David V. Aguilar and former Border Patrol sector chief Luis Barker, who headed the office where the shooting occurred. They blamed Mr. Ramos and Mr. Compean for failing to follow Border Patrol policies and covering up the incident.
"This has been a tragedy with emotional undercurrent. But there should be no mistake. ... It begins and ends with the actions of Agents Compean and Ramos," Mr. Barker said. "Not the prosecutors. Not the judge or the jury, as has been suggested."
peregrine:
If you don't want to get hasseled by the police i would attempt to blend in with the sheep.
Don't wear or dislplay excessive or obtuse jewelry and clothes. Don't drive a rice rocket with 20" chrome rims. Don't have the nra sticker and marijuana leaf sticker on your rear window. Don't loudly proclaim you are an individual. etc. etc.
Also every citizen should attmept to know their rights in this regards- tery frisk, terry stop, probable cause, reasonable doubt, legal knife size, dangerous weapons, curfews, felonious asault vs misdemeanors, etc.
be polite and professional.
Crafty_Dog:
Peregirne:
Good point about knowing your rights!
The problem is that I have never seen a simple statement of what the police can and cannot do. What are the criteria that must be met before they can they search me? My car? My home?
What should I do if the officer is NOT meeting these criteria so as to protect my rights? And not get hurt/killed?
CWS, can you/would you help us out here?
TIA,
CD
Bandolero:
--- Quote from: Crafty_Dog on July 22, 2007, 05:03:43 AM ---Peregirne:
Good point about knowing your rights!
The problem is that I have never seen a simple statement of what the police can and cannot do. What are the criteria that must be met before they can they search me? My car? My home?
What should I do if the officer is NOT meeting these criteria so as to protect my rights? And not get hurt/killed?
CWS, can you/would you help us out here?
TIA,
CD
--- End quote ---
Being a law school grad, you know better than anybody else that this is a complicated subject. Each situation has to be looked at closely because a single variable might change what is otherwise illegal, to one that is legal. And vice versa.
For example, suppose the police have a search warrant for your house to look for a Stinger missile. Well then they are entitled to look in any locations in your house that might contain a Stinger missile. If during the search the police take the cover off your toilet tank and find a handgun taped to the side of the inside of the tank, they will probably not be allowed to use that as evidence against you in a criminal proceeding because the place they looked (your toilet tank) was not a place that a reasonable person could expect to find something as large as a Stinger missile.
Or suppose the police have an arrest warrant for somebody, and they hit the house that is the person's residence (I will expand upon this in a moment). Note that this is not a search warrant, but an arrest warrant. Upon entry the police have the right to control the occupants in the house while they search the house for the wanted person. The police may choose to do this by having all occupants sit on the living room couch and other chairs. But for officier safety they probably have the right to search the immediate area of the couch and chairs, and anything within lunging distance, for weapons. If they find drugs or illegal guns under the couch cushions, those items could probably be used in a criminal prosecution. However, these same items, if found in a kitchen drawer could probably not be used because it was not reasonable to 1) expect the wanted person to be in a kitchen drawer (although the cabinet underneath would be fair game), and 2) the kitchen drawer was likely not within lunging distance of the living room couch.
Now let's modify the scenario a little. Suppose the police pursuant to an arrest warrant come to a house which is not the wanted person's residence. Suppose they get a tip that a fugitive from NYC is at Crafty Dog's house right now. Well Crafty Dog's house is not the wanted person's residence (of course once again a small variable change, like say the wanted person has been staying at Crafty's house for a week already and the wanted person had completely abandoned his prior residence in NYC, etc., might change the legalities). If the police search Crafty's house (under my original scenario and without a search warrant for person), and find a massive drug and illegal weapons cache, they will probably not be able to use the evidence to prosecute Crafty (unless Crafty or another adult in the house with power to authorize, like the wife) gave permission to search. Another minor variable change...the status of "residence." If the wanted person is now essentially living at Crafty's house (sleeps there, has not left the house in a week, eats all his meals there, is using the phone there at hours consistent with living at a place, in other words a list if variables starts adding up, then that same search might well be considered legal because Crafty's house may well be considered the wanted person's residence.
Finally, search and seizure law changes. When I first started my job in 1980 the limitations on vehicle searches were more stringent than they are now. At that time during a vehicle stop the police, for officer safety, could only search those areas within lunging distance of the driver and passengers (depending upon their status..like small children), for weapons. Nowadays more of the car is fair game.
So it is a complicated subject and not easy to write an absolute list about. What may be a lawful Terry frisk in one situation, may be completely unlawful by the same officer in the same exact spot 5 minutes later with another person.
If Random House wants to give me a $500,000 advance on a book, I will start the book tomorrow. :-)
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