2nd Circuit upholds illegal stop

[USP45usp]

Frank,

Just curious, how far are you willing to go to seize evidence? And what do you believe should happen if there is no evidence?

Would you say that if an LEO "thinks" that a crime has been commited that they should just be able to search you, your car, your house, your friends homes, etc.. until some evidence is found?

I think the key word here, even used by the court as well as yourself is

unlawfully

When does breaking the law, on either side, make it right?

Wayne

 

[FrankDrebin]

Frank,
Just curious, how far are you willing to go to seize evidence? And what do you believe should happen if there is no evidence?

I'm willing to go as far as the case law will allow me to go to seize evidence. I don't know what you mean as far as "what should happen if there is no evidence". If the arrest is dependant on evidence you are looking for, then there should be no arrest.

I suppose there are other circumstances where I would PROBABLY condone the unlawful seizure of evidence it if became necessary to save a life, although I haven't run across that in 20 years of law enforcement. I bet there are a lot of red-blooded, chest-thumping self-righteous Americans right here on this forum who loudly supported the officer in Iraq (I believe it was Iraq) who unlawfully obtained evidence from a prisoner believing that the potential evidence would help prevent an ambush of his troops. There are certainly lines that need to be drawn, but I don't believe they should be drawn at excluding evidence that lets a criminal go free because the police made a mistake.

Would you say that if an LEO "thinks" that a crime has been commited that they should just be able to search you, your car, your house, your friends homes, etc.. until some evidence is found?

Whole books have been written on that subject. You're going to have to be a lot more specific than that.

When does breaking the law, on either side, make it right?

When the "law" of the amendments and case law was broken accidentally and in good faith, to give just one example. I use the term "unconstitutional" and "unlawful" interchangeably. Although, we really shouldn't argue that point, because I'm arguing to get rid of the exclusionary rule as we know it. The rule already has a "good faith" exception.

What purpose is there in obtaining a search warrant? Why bother? Why not just barge on in there, conduct your illegal search, and seize that illegal evidence? It'll be admissable anyway? Right? Right?

Because there would be other sanctions in place to discourage police from seizing evidence unlawfully, that's why.

Oh, and one other thing....The title of this thread is misleading, I think. I don't believe the court "upheld" the unlawful stop, but rather merely refused to exclude the evidence. That doesn't make the stop constitutional.

 

[gb_in_ga]

"Because there would be other sanctions in place to discourage police from seizing evidence unlawfully, that's why."

Very evasive, now answer my question. Is that illegally obtained evidence admissable? From the standpoint of the person who's constitutional rights were just trampled, it doesn't matter what happens to the police, even though the LEO(s) involved really should get reamed over it. What happens to the evidence so gained? If it is not immediately thrown out, there is a travesty of justice, no matter what happens to the police who conducted the illegal search/seizure operation.

In matter of fact, the normal practice of discarding such evidence serves to keep the police in line. The police want to apprehend criminals, and want them to be tried and convicted. The people who pay them and elect their supervisors want this as well. When illegally obtained evidence is (rightly) suppressed, that hinders the conviction. Meaning, next time the police will be that much more certain to stay within the guidelines, insuring that the arrests they do make are that much more likely to result in convictions. It keep them on their toes, and makes them extra sure that they don't step on our constitutional rights.

 

[USP45usp]

Another key phrase you are now using

law was broken accidentally

Why should LEO's get away with this when us civilians, if had done the same, wouldn't?

If I accidentally broke a law, I would be punish but it seems you think that if the LEO's do the same, then it's okay.

This is going straight to the "Them vs. Us" line of thinking. Don't do as I do but as I say.

And I would like to ask, from an LEO's reason, why a KNOWN drug house was not put out of business? Why did the LEO's that made this arrest not shut down the drug house. And, how can you confuse a 5'8", 145 lbs man with a 6'1", 215 lbs man?

No, in this case it seems as if the LEO's marked this guy, made up an excuse, illegally gained evidence, and the department as well as the courts helped the coverup.

Wayne

 

[gb_in_ga]

"Oh, and one other thing....The title of this thread is misleading, I think. I don't believe the court "upheld" the unlawful stop, but rather merely refused to exclude the evidence."

You are quibbling over minutae here. So, you are saying that the stop was unlawful, right? So, the police had no business stopping the guy, right? The police had no business searching the guy, right? Therefore, the evidence was illegally seized, right?

It should have been thrown out, just on that basis. If the stop was illegal, the evidence obtained is inadmissable. Period.

We have just witnessed a travesty of justice, and the establishment of yet another bad judicial ruling that we will be saddled with in our collection of case law.

 

[shaggy]

Because there would be other sanctions in place to discourage police from seizing evidence unlawfully, that's why.

So what exactly is the dollar value of your Constitutional rights? Can you put a price on that Frank? How much is your liberty and freedom from unwarranted intrusion by the government worth? If the government violates my rights, I care little what happens to the individual officer who just took the orders to perform an illegal search. Docking him a days pay does not restore MY rights or make me whole for an unwarranted intrusion into my life and infringement of my rights by the government he represents.

 

[Long Path]

Rich, I know that you and I have disagreed on this in the past, but I actually kind of like Terry, when it's properly applied. Terry says that an officer may stop and detain to investigate a person based on Reasobable Suspicion. A lot has come out of that. Some bad, but a lot of good, too.

"Good?!?" you may demand, "What good?!?"

Well, I'll take it to my favorite example (mainly because it's the one that I have the most experience in applying in real life): DWI: Cop on patrol at 0215 hours on a Saturday morning sees a car weaving within its lane. Sees the car swerve, within its lane. Sees the car vary its speeds from 20 below to 3mph above the speed limit (which the local court would throw out for making a stop on, by itself). The road is a stretch of road halfway between the local military base and the local watering hole, and it's the first weekend after payday. The driver is alone in the car, and doesn't appear to be distracted by a cell phone or other activity. Now, without Terry, the cop can't pull this guy over, as he has no Probable Cause that a law has been broken. But you know, and I know, --and the potted plant in the corner over there knows-- that it's a good idea to stop and chat with the driver for a minute before a tragedy happens when the next car comes over the horizon. Why? Because we have Reasonable Suspicion to believe that the driver is intoxicated such that he has lost the normal use of his mental or physical abilities, and is operating a motor vehicle in a public place. So the cop finds a safe place, stops the driver, introduces himself, and talks to the driver long enough to establish if there is obvious sign of impairment. No sign of impairment, the cop has no P.C., and lets the guy go. If there is an affirmative sign of impairment (strong odor of alcohol, slurred speech, watery eyes, staggering, etc), then Probable Cause exists to arrest, and the officer takes the necessary action. It is in such a fashion that dozens of lives are saved every weekend, every year. And that's a Good Thing.

 

[FrankDrebin]

Why should LEO's get away with this when us civilians, if had done the same, wouldn't?

Citizens don't get arrested, to the best of my knowledge, for unlawful search and seizure.....But anyway, it's a moot point because there's ALREADY a "good faith" exception to the exclusionary rule. Nothing new there. And "ignorance" of the constitution is no excuse under the current rule. The "mistake" has to be reasoanble.

If I accidentally broke a law, I would be punish but it seems you think that if the LEO's do the same, then it's okay.

Well you must agree with me then, because I'm advocating punishment for officers who violate the constitution when they should know better. How are officers punished now? Exclusion of evidence? I get paid to go to court whether they exclude the evidence or not.

And I would like to ask, from an LEO's reason, why a KNOWN drug house was not in business? Why did the LEO's that made this arrest not close down the drug house.

Many, many dope houses are back in operation hours after a raid. What do you want the police to do, move in? They can't seize the house right away, if at all, because the owners have rights. Even if the city DOES own the house, most dope houses are in cities that just can't afford to tear them all down, even if they own them. That's why.

No, in this case it seems as if the LEO's marked this guy, made up an excuse, illegally gained evidence, and the department as well as the courts helped the coverup (as are you).

Well unless you're implying that the police planted the evidence, I guess you shouldn't carry dope around if you don't want to be arrested after an unconstitutional stop in Oregon!!!

You are quibbling over minutae here.

The whole system of law is about "minutae"!!!

So, you are saying that the stop was unlawful, right? So, the police had no business stopping the guy, right? The police had no business searching the guy, right? Therefore, the evidence was illegally seized, right?

Yes, wrong, wrong, and yes, and apparently. That particular cop should learn how to write a report. I'm sure the guy committed a traffic offense before he pulled him over. Pretextual stops are still legal.

 

[USP45usp]

*not to stir the pot, just an observation from past experience and what I was taught in the Military*

unwarranted intrusion into my life and infringement of my rights by the government he represents.

Any good LEO worth their position would disobey an unconstitutional order, as we were well within our rights to do while in the military.

During the nazi trails, I do believe that the defense was "we were only obeying (following) orders" which was then disallowed.

Accidently or not, it was still breaking the law, you know, what they are supposed to uphold. By your logic, breaking the law is okay when it benefits something or someone, damn the Constitution.

Wayne

 

[FrankDrebin]

So what exactly is the dollar value of your Constitutional rights? Can you put a price on that Frank? How much is your liberty and freedom from unwarranted intrusion by the government worth? If the government violates my rights, I care little what happens to the individual officer who just took the orders to perform an illegal search. Docking him a days pay does not restore MY rights or make me whole for an unwarranted intrusion into my life and infringement of my rights by the government he represents.

All the stuff you posted is moot because it was never the intent of the exclusionary rule to "restore your rights" or "make you whole" after an unwarranted intrusion.

We have just witnessed a travesty of justice,

Oh puh-lease...now you're a witness?? Cut the hyperbole.

Very evasive, now answer my question. Is that illegally obtained evidence admissable?

Evasive?? How is it evasive??? I don't have all the answers, I'm saying the exlusionary rule it it's current incarnation is stupid. What illegally obtained evidence??? In this case? Hell yes it's admissable, the court just said so. Are you asking me if I think it SHOULD be admissible?

From the standpoint of the person who's constitutional rights were just trampled, it doesn't matter what happens to the police, even though the LEO(s) involved really should get reamed over it.

So how does excluding the evidence make the person whole? You can't go back in time and erase the stop. I say throw him in jail and give him a check for the amount of time he lost from work while he was being detained at the scene. Or if you want to have a deterrant, which is what the exclusionary rule is for (It was NEVER intended to compensate the person stopped) then come up with some other deterrant that won't let a criminal go.

 

[Wraith]

Eloquently spoken, Rich Lucibella.

 

[USP45usp]

Many, many dope houses are back in operation hours after a raid. What do you want the police to do, move in?

No, not move in but maybe their jobs. That is a good start. If they know that the house will be re-opened for business in a couple of hours, bust them again.

Sounds like a very good idea to me... gee, you think that maybe you could get allot of drug dealers and dope off the streets if they did this?

Just because the cops are too lazy to re-bust (raid) the drug house in a few hours then maybe they should move on to other careers. You said it yourself, I quoted it above.

Wayne

 

[FrankDrebin]

Accidently or not, it was still breaking the law, you know, what they are supposed to uphold. By your logic, breaking the law is okay when it benefits something or someone, damn the Constitution.

"Breaking the law" is not the same as "an unconstitutional traffic stop by the police".....Unless you can post a state, federal or local statute to set me straight. For example, obtaining a search warrant maliciously is a case where the offier broke the law AND committed an unconstitutional search or seizure. If you want to use the old Nazi cliche about following orders and contend that it's similar enough to me stopping a car a block away from a robbery scene based on a phone call to the dispatcher by an unidentified witness to the robbery, as two examples of unconstitutional seizures, we probably don't have much to talk about anymore. Not because I have any problem with being compared to Nazis, but because it's so irrelevant.

 

[FrankDrebin]

Eloquently spoken, Rich Lucibella.

Have anything to add?

MOULON ROUGE!

 

[Rich Lucibella]

That particular cop should learn how to write a report. I'm sure the guy committed a traffic offense before he pulled him over.

Frank-
This is getting ugly. Let's go back to the beginning and examine what you have asserted.
1) The cops claim it's "reasonable" to confuse two men, one three inches taller and 50% heavier than the other. You consider it illegal.

2) The order to stop (flashing lights) is not a "seizure".....therefore, anything that happens after that is fair game despite the illegal act that precipitated the flight (but, of course, there couldn't have been a "flight" if there was no seizure).

3) A "known" drug house cannot be raided because we don't "know" if it's still a "known" drug house. But we sure can use the fact as "reasonable" to "illegally", "non-seize" individuals bearing a very poor similarity to suspected individuals because they came from it and own a Pontiac.

4) When all is said and done, whether the (non) stop was illegal, the guy had drugs or not is immaterial....any "good" cop could write the report "creatively" enough to cite an illegal lane change or some-such resulting in the eventual "legal" search.

5) The fact that the Circuit court as much as stated that it should be thrown out, were their hands not tied, is irrelavent. One whole crack dealer off the street. One new precedent for illegal search. And your answer?.....let it go; we can always dock the cops later.

Frank-
I know from your posts that you're one of the good guys. But you have to understand how this kind of reasoning causes average citizens to fear the Cops more than the criminals. At least against criminals, we have RIGHTS! at least, against the criminals, we know what actions and responses are legal or illegal.

Rich

ps added to Matt:
I don't disagree with Terry had it remained as circumscribed as Terry. The very fact that Terry has brought us to rulings like this one tells me that getting that potential drunk off the street is simply not worth the cost to the rest of us. One man's opinion.

Besides, if the cop knows how to "write a report".....

 

[shaggy]

All the stuff you posted is moot because it was never the intent of the exclusionary rule to "restore your rights" or "make you whole" after an unwarranted intrusion.

No its not moot Frank; if there is no discouragement there is no incentive for the government to avoid such unlawful behavior. You said:

Citizens don't get arrested, to the best of my knowledge, for unlawful search and seizure.....

But if a non-LEO walks into my home uninvited, I have a civil cause of action for tresspass. If they use force to unlawfully detain me I have a civil cause of actin for false imprisonment. If they grab something and leave (ie. taking evidence) I have a civil cause of action for theft. All those infractions use a monetary deterrent in a civil court. If we're to throw out the exclusionary rule it should be no different when my government or an agent thereof similarly violates me by coming into my home, detaining me (possibly at the point of a gun), and taking me and my property away against my will.

Similarly, many of those same activities would be the basis of criminal charges if performed by a non-LEO. Would you be willing to subject police officers to both criminal and civil charges for every violation of someone's rights where it didn't result in a conviction?

 

[FrankDrebin]

No, not move in but maybe their jobs. That is a good start. If they know that the house will be re-opened for business in a couple of hours, bust them again.

How? The narcotics crew that busted that dope house already spent a few days gathering intel. for a search warrant to do the raid or made a buy themselves. Either way, they made a buy themselves or an informant did. Then they did the raid and searched the house. They took the ghetto grates off the door and put one end up on the curb and ran it over with their truck to bend the gate so it would take a little longer to put back up. Then after a couple hours maybe at the house to search it, they went back to headquarters to process the prisoners and evidence and write reports. Then the went to the OTHER house on their list for the day to do the same thing. Then after that, they might have gone home to their families for a couple hours...or the bar...and went to sleep...Then they got up at 5:00am to get ready for court on the dope houses from the days or weeks before because they have to be present for either arraignments or preliminary exams on the guys they arrested previously. Then if they're lucky, after waiting on their butts in court all morning, they MIGHT have a chance to get lunch before going back to headquarters and starting all over again, or MAYBE trying to develop an informant and get enough probable cause for a search warrant for another raid....or maybe go do a buy-bust themselves.

That's just the narcs. You want the PATROL guys to raid dope houses that have already been hit?!?!? When?

 

[FrankDrebin]

Frank-
This is getting ugly. Let's go back to the beginning and examine what you have asserted.
1) The cops claim it's "reasonable" to confuse two men, one three inches taller and 50% heavier than the other. You consider it illegal.

I'm conceding that the stop was unconstitutional for the sake of argument, yes. I didn't read the whole case but am just giving my take on the exclusionary rule.

2) The order to stop (flashing lights) is not a "seizure".....therefore, anything that happens after that is fair game despite the illegal act that precipitated the flight (but, of course, there couldn't have been a "flight" if there was no seizure).

In my opinion, when you stop because of the flashing lights, it's a seizure. If you DON'T stop and, for example, throw some dope out the window, while running, it's NOT a seizure. Just because the lights are turned on does not mean a seizure took place.

3) A "known" drug house cannot be raided because we don't "know" if it's still a "known" drug house. But we sure can use the fact as "reasonable" to "illegally", "non-seize" individuals bearing a very poor similarity to suspected individuals because they came from it and own a Pontiac.

You can't raid a dope house without a warrant, or probable cause plus exigent circumstances just because it was recently raided. However, depending on what the officer saw, heard, etc....I wouldn't rule out the police having reasonable suspicion to stop someone coming out of a recently raided dope house even if they didn't have probable cause to believe he just bought dope.

4) When all is said and done, whether the (non) stop was illegal, the guy had drugs or not is immaterial....any "good" cop could write the report "creatively" enough to cite an illegal lane change or some-such resulting in the eventual "legal" search.

Any good cop could have come up with a completely legal reason to stop that car. But they didn't in this case, and that's what makes good legal arguments and new case law. Don't put words in my mouth Rich, it's not like you. It's very possible that the driver of the car committed a traffic violation that would have justified the stop, but the officer, for whavever reason, didn't take advantage of that violation in his report. Happens all the time, and pretextual stops are perfectly legal.

Frank-
I know from your posts that you're one of the good guys. But you have to understand how this kind of reasoning causes average citizens to fear the Cops more than the criminals. At least against criminals, we have RIGHTS! at least, against the criminals, we know what actions and responses are legal or illegal.

I disagree. You're speaking from the perspective of an active "gun guy" on a forum that often debates constitutional rights. I don't thing many people here can speak for the "average citizen". Then again, maybe it's a regional thing. I live just outside Detroit. I'm pretty sure that the average citizen here would be perfectly content to get rid of the exclusionary rule and go with my system. Maybe they'll name the next rule after me...

 

[Long Path]

Any good LEO worth their position would disobey an unconstitutional order, as we were well within our rights to do while in the military.

Yeah. Right. When groundbreaking judgements of Constitutional law like US v. Lopez (1995) (which questions whether guys like the ATF have the power to regulate your ownership of guns under the Commerce Clause) are passed 5-4 in the Supreme Court, how do you think the officer on the street is supposed to make a Constitutional decision on the cuff?

Good ol' Terry v. Ohio (1968) was an 8-1 ruling-- one justice of the Supreme Court disagreed on whether the action of Officer McFadden was reasonable.

In Chimel v. California (1969), the ruling was court expanded Terry frisks to a "wingspan" search of a vehicle, and that was a 7-2 ruling. After careful deliberation, 2 justices trained in Constitutional law disagreed as to whether an action had been legal.

Hodari was decided 7-2, by my count. Again, two justices weren't on board with the rest of the court about the majority opinion.

So let's not go making sweeping statements about how any cop worth his salt would disregard any "unconstitutional order." It ain't that easy to identify.

 

[Long Path]

Oh, and for what it's worth, when the stuff gets a little tense, the suspect always looks bigger. I can recall one instance where things got kind of western with me, and I gave a hip-pocket estimate of the suspect as 6'00" to 6'1". When apprehended, he barely made 5'8". Oops. He seemed bigger at the time, seriously. [shrug] So much for good estimates.