2nd Circuit upholds illegal stop

[jburtonpdx]

Frank
First I have to say that I respect you based on other threads and despite our difference of opinion on this topic. Now on to the ... meat of it?

Here's a question: I'm sure you would agree that it's not against the law to run down the street when you see a police car a block away. Maybe you got your butt kicked by the white police when you were kid. "I was scared, so I ran!" (That's what a lot of people who run from the police seem to say) Why should it be improper for the police to run alongside you, not touching you until you toss a gun? The police can run alongside you, can't they?

Come on Frank get honest you know good and well that a cop in Portland OR is going to tackle that kid, pat him down and go from there. If the kid has a weapon on him, where does it go now? Lets say not a kid, but a young adult of say 20. Good kid honestly has the weapon on him for protection against gangsters, but it was found after the quick jog they both took...

How about this one: You're wanted for murder and are at your friend's house at noon having just arrived. Your friend gets a phone call that says the family of the guy you're wanted for killing are on the way over, and they all have shotguns and Uzi's. You bolt out the backdoor, into the alley, and into the waiting arms of officer Drebin who is laughing at you with a cell phone in his hands, and who saw you toss the gun onto the roof of your pal's house. Is THAT an unlawful seizure? The police induced you to run by lying, without touching you or seizing you in any way, and caught you after you ran.

The courts have said that an officer can lie in the course of duty so long as it does not "shock the conscience" of a common person. Good job by the way...

You're driving to work and a police car behind you puts the overhead lights on. You pull over into the next lane and the police car goes past you to whatever run they were just dispatched to. Had you just been constitutionally seized? Is yielding to an emergency vehicle a seizure in the eyes of the court?

This is just getting silly....

 

[FrankDrebin]

No Frank. Not until the state meets its burden of proof. If I kill someone and get off because of poor policework or poor lawyering on the part of the prosecutor, you may think I'm guilty - you may even know I really did it, but as far as the government is concerned, I'd be innocent and no penalty of guilt would attach.

No you wouldn't, you would be "not guilty". That's not the same as being "innocent". Even the jury never says "innocent" when it reads the verdict.

 

[FrankDrebin]

Come on Frank get honest you know good and well that a cop in Portland OR is going to tackle that kid, pat him down and go from there. If the kid has a weapon on him, where does it go now? Lets say not a kid, but a young adult of say 20. Good kid honestly has the weapon on him for protection against gangsters, but it was found after the quick jog they both took...

Well, unless he lied on the report, it would be a totally unconstitutional seizure and search. It's not unlawful to run from the police in the absence of reasonable suspicion for a stop, and even WITH reasonable suspicoun it's up in the air whether it's against the law not to comply, and it's not unlawful to hang out in a "high crime" area. That reliance on the old "high crime" area has been the downfall of many cases of rookie cops. That's almost bad as the "officer safety" excuse for a bad Terry search.

The courts have said that an officer can lie in the course of duty so long as it does not "shock the conscience" of a common person. Good job by the way...

So when I flipped the overheads on, it wasn't to see if you'd run, it was just to check the overheads to see if they were working. Honest.....

You're driving to work and a police car behind you puts the overhead lights on. You pull over into the next lane and the police car goes past you to whatever run they were just dispatched to. Had you just been constitutionally seized? Is yielding to an emergency vehicle a seizure in the eyes of the court?

This is just getting silly....

That was the most appropriate example of them all....What's the difference in these cases? In this case, the criminal found himself in front of a police car that just put the overheads on. Why? He has no way of knowing. He could have pulled over and the cop may have gone on past him to another run. Instead he chose to run and toss some dope out the window, which lead to the seizure AFTER he tossed the dope. Why would you think that YOU weren't seized when the cop hit the lights behind you on the way to work, but THIS guy WAS seized when the cop hit the lights but never laid a hand on him?

 

[shaggy]

No you wouldn't, you would be "not guilty". That's not the same as being "innocent". Even the jury never says "innocent" when it reads the verdict.

Ok fine - call it whatever you wish. But in the eyes of the law and the government, until that jury verdict comes down with "guilty" they have all the rights, liberties, and freedoms, as any innocent man. You as a LEO are not the arbiter of guilt or innocence. That is the province of the jury. And as an agent of the government, you are entrusted to enforce the law. If you base your enforcement upon your own personal feelings or beliefs of guilt or innocence, you're nothing more than a lawless vigalante.

 

[FrankDrebin]

Absoluetly. But if you read the law, you'd know ALL pre-ban configured weapons were illegal regardless of the date of manufacture and it was a defense that it was a "pre-ban". Thats not how the law was actually enforced, but thats how it was written.

I thought reading my FFL stuff that there were clear indications that guns purchased before the bad were OK to have. I can't argue this one because I don't know enough about it.

 

[USP45usp]

Frank,

So all people that are "not innocent" should have their Rights thrown out the window even if they are found not guilty in a court of law?

If being "not innocent" deserves such actions then we all should be in jail. I'm sure that you have broken laws, most likely because you didn't know that law existed, but I bet you have.

The same as myself.

I admire your wanting to get criminals off the streets. I am glad that you decided to take a career in which to help people when you can. I don't admire your "by any means that it takes, including violation of Rights. I may not like it but even criminals have Rights and as ours should be respected, so should theirs.

Wayne

*and I will admit that your last question on the three that you posted was getting silly .

 

[FrankDrebin]

If you base your enforcement upon your own personal feelings or beliefs of guilt or innocence, you're nothing more than a lawless vigalante.

Who said anything about feelings? I said I think the court should have jurisdiction over a guy with a kilo of heroin in his suitcase even if the reason I stopped him was because an anonymous and uncorroborated caller told me he had a kilo of heroin in his suitcase. I don't care what the court does after that. You DO know that there is no exclusionary rule as far as making an unconstitutional arrest with no evidence, right? What I mean is, you can be wanted for stealing a car and I can kick your door in with no warrant and no probable cause to believe you're home, drag you out of bed in the middle of the night and put you in front of a judge for stealing a car, even if there is no warrant, and you have no recourse as far as the arrest under the exclusionary rule. You can sue me for unlawful arrest, but that's it. There's no "You have to let him go because you had no probable cause to go into his house." The court will have full jurisdiction over you just as if you'd have turned yourself in.

 

[BreacherUp!]

If you base your enforcement upon your own personal feelings or beliefs of guilt or innocence, you're nothing more than a lawless vigalante.

Actually Shaggy, most affidavits are written based upon probable cause, or a reason to believe (sometimes used both ways) based on observations, experience, training. So yes, belief that a crime has been committed does fall into the decision making process. This affidavit can be sworn to before an arrest or after (where, of course, the burden of proof is more strict as there has not yet been judical review). That does not make someone a vigilante.

 

[shaggy]

Actually Shaggy, most affidavits are written based upon probable cause, or a reason to believe (sometimes used both ways) based on observations, experience, training. So yes, belief that a crime has been committed does fall into the decision making process. This affidavit can be sworn to before an arrest or after (where, of course, the burden of proof is more strict as there has not yet been judical review). That does not make someone a vigilante.

I do understand that, however, thats not the issue at hand. Frank is impliedly making a determination about guilt or innocence and acting on it with neither judicial review or a lawful basis. His statement was:

How is the guy with a kilo of crack in his suitcase that is improperly seized any less guilty than the guy with the kilo of crack in his suitcase that is seized with a search warrant?

How would you interpret "improperly seized" to mean by virtue of a warrant or a lawful and Constitutional warrantless arrest/seizure?

 

[FrankDrebin]

So all people that are "not innocent" should have their Rights thrown out the window even if they are found not guilty in a court of law?

Of course not. That's the whole crux of my argument. You DO NOT have a right to have improperly obtained evidence exluded from your trial. I'm not sure where you're headed with the "rights through out after being found not guilty at a trial".

I admire your wanting to get criminals off the streets.

My argument has nothing to do with me wanting to get criminals off the street. It's more of a balancing between the rights of society vs. the rights of the accused and how to reconcile both.

I don't admire your "by any means that it takes, including violation of Rights. I may not like it but even criminals have Rights and as ours should be respected, so should theirs.

I don't advocate violating anyone's rights either, but sometimes evidence is obtained improperly and I don't believe the remedy to that is to let a criminal go. The exclusionary rule is NOT your right. You don't have the right to have the evidence excluded. Just as you do not have the "right" for the police to read you the Miranda Warning. The exclusioary rule is a deterrant to the government, not a right for you. There must be a better deterrant that serves both to deter the police from bad faith improper searches and allows for the court to preside over the case with all the available information.

and I will admit that your last question on the three that you posted was getting silly

Why? Why did the use of the overheads constitute a seizure in one case but not the other?

Frank is impliedly making a determination about guilt or innocence and acting on it with neither judicial review or a lawful basis.

Absolutely not. I want to know why the COURT should be able to consider the fact that the guy had dope in his briefcase in one case, but not the other. The COURT didn't make the improper seizure. Why withold information from the court, in effect "the people", when you want to sanction the OFFICER? You don't without the body of the accused from the court when he his arrested in violation of the 4th amendment, why withold evidence? Find some other way to deter the police from improper behavior. The fact that the evidence was seized improperly is NOT what makes the guy innocent. The fact that it wasn't his dope, or he didn't know it was there, or someone switched bags, THAT'S what makes him innocent. Not the fact that the police screwed up. The court should have the opportunity to make that determination.

 

[jburtonpdx]

That was the most appropriate example of them all....What's the difference in these cases? In this case, the criminal found himself in front of a police car that just put the overheads on. Why? He has no way of knowing. He could have pulled over and the cop may have gone on past him to another run. Instead he chose to run and toss some dope out the window, which lead to the seizure AFTER he tossed the dope. Why would you think that YOU weren't seized when the cop hit the lights behind you on the way to work, but THIS guy WAS seized when the cop hit the lights but never laid a hand on him?

I will give you that one every time - the moron put the dope in plain view all on his own. He should be arrested and charged with the dope, if he does not stop shortly after seeing the flashing lights charged with evading also, and for being such a complete moron should also be charged with driving while stupid.

If he did pull over and the officer changed his mind about the light testing and decided to ask the person why he pulled over, then pulled the guys out of the car (not based on smell or sight, just gut feel) then searched the car - I think that should be a crime and the officer charged.

 

[BreacherUp!]

Obviously, we're looking at the same thing from two different directions. I understand what Frank is saying. The guy is guilty of breaking a law, whatever the jury decides.
I also understand where you are coming from, that ONLY the jury can decide guilt or innocence.
You are speaking about court law, he is speaking about street law (IOW, I saw him break the law, hence he is guilty). Both of you are right.

 

[FrankDrebin]

If he did pull over and the officer changed his mind about the light testing and decided to ask the person why he pulled over, then pulled the guys out of the car (not based on smell or sight, just gut feel) then searched the car - I think that should be a crime and the officer charged.

Well if things went that way, I would think that officers being charged for stuff like that would be plenty enough deterrant to the point where the exclusionary rule would be cutting off the nose of the court to spite its face.

 

[USP45usp]

Who said anything about feelings? I said I think the court should have jurisdiction over a guy with a kilo of heroin in his suitcase even if the reason I stopped him was because an anonymous and uncorroborated caller told me he had a kilo of heroin in his suitcase.

You did get the warrent first right? Or is the 4th just another amendment that is outdated?

My argument has nothing to do with me wanting to get criminals off the street. It's more of a balancing between the rights of society vs. the rights of the accused and how to reconcile both.

Please point out the section in the Constitution where the "rights of society" outweigh the Rights of the People.

I don't advocate violating anyone's rights either, but sometimes evidence is obtained improperly and I don't believe the remedy to that is to let a criminal go.

Yes, the criminal should be released. That pesky fouth amendment thing, you know. Anytime that a Right is violated, the courts and law should err on the side of the Right and not the side of the law. Rights trump law, well, from my humble reading of that pesky Constitution document anyway.

As for stating SCOTUS law, if it wasn't for an amendment by the Congress, the court has upheld that slavery is still lawful. Just because the SCOTUS has issued a ruling doesn't make it right, or Constitutional.

To believe that is to throw out any oath that you may have taken to defend the Constitution.

Okay, as for your third question: If you light up the overheads and I freak out and drive away from you and then regain my sanity and then pull over, all I have to say is that I was trying to get out of your way to pull over and at the time you hit your lights, I didn't think that it was safe to do so. At that time, depending on your states laws, all I've done is commit a misdemeaner and without a warrent, you have no PC to search my car (well, in my state anyway).

 

[shaggy]

Obviously, we're looking at the same thing from two different directions. I understand what Frank is saying. The guy is guilty of breaking a law, whatever the jury decides.
I also understand where you are coming from, that ONLY the jury can decide guilt or innocence.
You are speaking about court law, he is speaking about street law (IOW, I saw him break the law, hence he is guilty). Both of you are right.

I know we're just approaching that particular issue from different angles. But as agents of the government, we the people entrust them to enforce the law. Not to make up or dish out street law, or what they think is right or moral; but to enforce the law as passed by the legislature, who were duly elected by 'we the people'.

 

[jburtonpdx]

Well if things went that way, I would think that officers being charged for stuff like that would be plenty enough deterrant to the point where the exclusionary rule would be cutting off the nose of the court to spite its face.

If people did not have the nasty habbit of taking a mile when offered an inch it would not be a problem.

 

[shaggy]

Why withold information from the court, in effect "the people", when you want to sanction the OFFICER?

Because the officer is employed as an agent of the government and a representative of the government. And if the government steps over the line of Constitutionality in its prosecutorial zeal, the government should not be allowed to benefit from its wrongdoing.

 

[gb_in_ga]

"A cliche. What does it have to do with the exclusionary rule? The exclusionary rule has nothing to do with determining guilt or innocence."

It may be a cliche, but it is accurate nonetheless. What does this have to do with the exclusionary rule? Everything. LEOs are NOT to even be concerned with guilt or innocence, it is true. But even LEOs must presume that everybody is innocent until sufficient LEGAL evidence is gathered to warrant an arrest. Presumption of innocence is part of what makes us, our system of government and system of law what they are and determine who we are as a people. It is part of what makes us "special". By denying that, you deny us as a people.

"How is the guy with a kilo of crack in his suitcase that is improperly seized any less guilty than the guy with the kilo of crack in his suitcase that is seized with a search warrant?"

While it is true that both were breaking the law, in the one case the government also broke the law, and as such the evidence must be forfeited, leading to a not guilty verdict (perhaps). In the other case, the government followed procedures, respected the defendant's rights, and is able to get a conviction. Guilt or innocence (ok, call it not guiltiness or somesuch) is determined in the court of law (NOT by the LEO(s)), based on legally gathered admissable evidence. It behooves the law enforcement establishment to do their evidence gathering by the established rules, respecting the peoples' rights. Illegally gathered evidence would be automatically suspect even if admissable -- just because it was gathered outside of the law. Introduction of such would (or should) introduce reasonable doubt in the minds of the jury, leading to acquittal.

Those various constitutional guarantees are put there in order to protect the citizenry, both guilty and innocent, from a police state run amok, a police state doing just what you are suggesting.

While I do recognize that you are proposing what you are proposing in order to get more criminals off of the streets and to promote the general safety of the populance, it comes at too great of a cost. And I'm not talking dollar cost, either. I'm talking about the cost of sliding into an Authoritarian State -- a Police State. Safe? Yes, as long as the police state doesn't come down on you for whatever reason. But not a place I'd care to live, for the rule of law would have become the rule of force and expedience, where the so called safety of the people is promoted at the cost of the liberty of the people.

 

[BreacherUp!]

Shaggy, I know what your saying. If you ask any arresting officer why he did it, he will tell you what he saw/heard/smelled that prompted him to arrest the person. You will rarely ever hear on the street (I had probable cause to believe that Mr X was dealing illegal narcotics blahblahblah". You'll hear it in the courtroom, but not on the street. My point: they are the same thing albeit worded differently to satisfy legal babble.
I am certainly not advocating street justice, nor was I talking about that.

 

[USP45usp]

If people did not have the nasty habbit of taking a mile when offered an inch it would not be a problem.

The same goes for LEO's wouldn't you think?

Also, it's human nature to take a mile when you're given an inch. Humans from day one would see just how far they can go and get away with it. You see it in children as they grow up. They never stop, they just get smarter at doing it.

And your statement is now going into forced behavior modification. That's been done by governments since the time of government. Still doesn't make it right.

Wayne