2nd Circuit upholds illegal stop

[LAK]

Frankdrebin

I never said society would ever be free from criminals.

This is what you said:

I said society had an interest in being free from criminals. I have a right to be free from criminals because they impede my right to life liberty and the pursuit of happiness.

So what does, quote: "free from criminals" really mean then?

And as far as the government not having the "right" to infringe on your rights to "keep yourself safe", when your efforts to "keep yourself safe" infringe on my rights, the government has a DUTY to set limits on you and enforce them

No, the government has a duty to stick to it's Consttutional mandates - both at State and Federal level. In both cases the rights of the State are limited.

All this "when your rights infringe on my rights" stuff seems to lean toward a point of view that certain specific limitations on the power of the State, and certain specific rights of citizens in this country, are a subjective matter, all gray and cloaked in fog, and can only be decided by the State.

I have the right to protect myself. The State on the otherhand has no Constitutional, other legal codification or mandate, or any other right to assert the duty to protect me from the criminal acts of anyone else in this context - or conjure up a pretext of "someone elses' rights" to do so.

 

[FrankDrebin]

So what does, quote: "free from criminals" really mean then?

I said an "interest" in being free from criminals. Meaning that society would like to be free from criminals to the greatest reasonable extent possible. This "reasonableness" is the balance between the individual's right to be free from government intrusion into his or her life and society's right to be free from criminal intrusion into their collective lives. For example, your right to be able to drive home without being inconvenienced vs society's right to be free from drunk drivers killing them on the road in the case of drunk driving checkpoints, which, by the way, are federally proper but improper in the state of Michigan, and I think, some others.

All this "when your rights infringe on my rights" stuff seems to lean toward a point of view that certain specific limitations on the power of the State, and certain specific rights of citizens in this country, are a subjective matter, all gray and cloaked in fog, and can only be decided by the State.

Many rights ARE subjective. You may think it's OK to run a 50/50 chance of being killed by a drunk driver on the way home while others may think that those odds are so bad that alcohol checkpoints are a reasonable seizure.

 

[FrankDrebin]

Next question Wayne: I have probable cause to believe you have LAK's stolen diamond ring in your car, which was hacked off his finger after a brutal homicide. I search your car, but no ring. While you're standing at the side of the road, I see a circular imprint on your front pants pocket, just about the size of LAK's stolen diamond ring. What do I reasonably do next? Please explain your answer in the context of the constitution so that I may understand your reasonable reasoning.

 

[Rich Lucibella]

Frank-
I'll answer that one....perhaps.

If you have "probable cause", do you not have cause to detain and question?
If you have "probable cause", do you not have information that might point to other avenues for further investigation?

If "no" to both the above, I don't believe Wayne should be compelled to empty his pockets, talk to you or even provide his name. As a citizen (just like you) I'm pretty good at my job (just like you), given the constraints on behavior and resources I contend with.....just like you. I don't conquer every challenge that comes my way, but I have a pretty good track record.....just like you. And I expect no more or less of you.

In short, no, I don't think that searches of persons or homes should take place except by warrant, in hot pursuit or post-arrest. There'll be enough gang-bangers, rapists and murderers still on the streets no matter how many of The Rights of the People I relinquish in the name of "Public Safety". I'll take my chances....and my Freedoms, thanks very much.
Rich

 

[TheeBadOne]

Because, to make that a crime, anyone can be detained under "reasonable suspicion" for entering any structure that any cop has "reason to believe" is involved in illegal activity.

The basis of many folks anger is their misunderstanding or partial understanding of what Law Enforcement does. This is abundantly clear in multiple threads on multiple subjects, especially when referencing Law Enforcement action where "no crime was committed!!!"

People understand that Law Enforcement makes arrests for breaking the law, but they don't understand:

#1) Law Enforcement conducts investigations
a) What an investigation is
b) That conducting investigations is at the heart of Law Enforcement
c) That an investigation does not always end in an arrest (and there's nothing wrong with that)

Some examples of the misunderstanding are in threads where Law Enforcement sees something out of the ordinary and investigates it (such as a man with a ballistic helmet and vest driving around the water supply reservoir ....)
Law Enforcement stops and checks it out, and an arrest for something else is effected. "Outrage" is what some posters express because "the Police" stopped someone who was "breaking no law". People who can't grasp the concept of investigations seem to have no hope of grasping the concept of Investigation vs Arrest for witnessed criminal action.
What my post here is about, is hopefully to have some folks think about Law Enforcement investigations and seek and understanding how/what/why/when. I think quite a few threads would be shorter, more concise, and cohesive if a better understanding was reached.

All the best

TBO

 

[Long Path]

USP45usp said:

All laws are null and void if they go against the Constitution and the Bill of Rights, first 10 as far as I'm concerned.

Just the first 10 Amendments?

So that nifty little Equal Protection Clause in the 14th Amendment doesn't do much for you?

That 13th Amendment that abolishes slavery doesn't tickle your fancy?

No? How 'bout that 15th Amendment that disallows abridgment of rights of any person "on account of race, color, or previous condition of servitude"?

What about Amendment 19, that guarantees voting rights for over half our national population?

Or Amendment 24, which abolishes poll tax?

How about Amendment 26, giving 18 year olds the right to vote? (An amendment so popular, it was the single fastest amendment ever to be ratified.)

Finally, though I know it's not a civil rights Amendment, you've got to love Amendment 27 (the longest an amendment has ever taken to pass at around 200 years).


It would seem that you would rather pick and choose your Constitution.

You know, USP45usp, to follow your assertion that the original Constitution and the B of R is the way to go (I assume you mean sans Article V), we would have to conclude that you're just fine with slavery being Constitutional. I don't think you've thought this through, fully.

I still don't grasp why people won't or can't read and then understand the Constitution and the Bill of Rights.

And I still don't get why you think that we're supposed to apply them without case law.

 

[FrankDrebin]

Frank-
I'll answer that one....perhaps.

If you have "probable cause", do you not have cause to detain and question?
If you have "probable cause", do you not have information that might point to other avenues for further investigation?

I don't know. You tell me from a constitutional, minus case law perspective. Here's your reference material:
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."

In short, no, I don't think that searches of persons or homes should take place except by warrant, in hot pursuit or post-arrest.

So you want to change the 4th amendment to require a warrant except for certain cases? I don't see anything about requiring a warrant either. It says that people should be free from unreasonable searches and it explains what is needed to issue a warrant. You just added a hot pursuit exception to the search warrant rule. That's case law Rich. I'm not asking what you'd LIKE to see, I'm asking what you would legally do as a police officer in that scenario based ONLY on the 4th amendment as written.. There is no "hot pursuit" exception in the 4th amendment. You would let the guy who when you have probable cause to believe he was involved in a homicide and has evidence of that homicide in his pocket?

Let me take out the words "probable cause". I used that for the sake of argument so we wouldn't have to argue about what probable cause is.

Lets say you have a witness who saw 2 men go into Bob's Garage. The witness heard a gunshot and 5 minutes later the 2 men, one of whom was Wayne, carrying a canvas bank bag, came out of the garage, got into a car and left. The witness described the car with a color, make and model and described the men as 2 white males, average height and weight. One had black hair, the other was bald. One was wearing a red bandana around his face and the other was wearing a black ski mask. The witness told the dispatcher, who told the police in a radio broadcast that he checked the garage and saw that Bob's finger was hacked off and his diamond ring that says "Bob" on it was gone. The witness is scared and doesn't want to give a name, and phoned the information in. You see a car that fits the description 5 miles away from the scene 15 minutes after the witness calls in the crime. There's a guy with black hair and a bald guy in the car. There is a purple bandana hanging from the rear view mirror. You stop the car for failing to signal a lane change. You get both guys out of the car and separate them. You ask the bald guy "Where are you coming from?" and he says "My cousin's house". He is sweating, keeps blinking and glancing at the other guy. You ask the other guy what the bald guy's name is, and he says "I don't know, I just picked him up hitch hiking. You ask the bald guy how long he's known the guy with the black hair, and he says they're old Army buddies. Then you see the round print on the bald guy's pants pocket....that could very well be Bob's ring....NOW what do you do, why do you do it, and how is the 4th Amendment applied?

And you better do something quick, because if you don't, you blow it at the scene and turn what could have been reasonable into unreasonable. There is no "lengthy detention because the cop didn't know what to do" clause in the 4th amendment.

 

[Long Path]

Heh. Frank, that's quite the drama you just wrote! Wow!

Really, this situation is not actually inconsistent with obtaining a warrant. You sure as heck have enough reasonable suspicion to continue to detain them for investigative purposes. Time to call for backup and a magistrate, and get to writing, but fast.

 

[BreacherUp!]

Actually, bring Bob to the scene and once he IDs them, their hooked.

 

[FrankDrebin]

Actually, bring Bob to the scene and once he IDs them, their hooked.

They tried, but Bob croaked from the gunshot wound....He wouldn't take the ring off, so they blasted him and took it off....

Heh. Frank, that's quite the drama you just wrote! Wow!

Really, this situation is not actually inconsistent with obtaining a warrant. You sure as heck have enough reasonable suspicion to continue to detain them for investigative purposes. Time to call for backup and a magistrate, and get to writing, but fast.

I think you definately have enough (from our point of view) for a couple things....First, there's definately enough for a warrantless Terry search for weapons. That would likely get you the gun and the money bag and the mask. That would be good enough for an arrest, and that would get you the ring. I think there's also probable cause plus exigent circumstances for a search of the car at the scene for the mask, the bank bag, the gun and the ring.

Additional: You ask the guy to empty his pockets and he tells you to get screwed. Now what do you do in the context of the 4th amendment? A magistrate is an hour away. I think it would be an ureasonable detention to make them wait for you to go to the magistrate, type up a warrant request and submit it. That could literally take hours. And if you let them go, they may very well be gone as soon as they hit town. I'd rely on Carrol V. US, but that's just me. It's not against the law to have a purple bandana and be an average white guy with another average white guy in an average 2004 White Ford Taurus. Don't read Carrol, and tell me what you would do based only on the 4th amendment (that's for the "no case law" group). To the "no case law" group: Both guys are out of the car. You can't search their car looking for guns, can you? They can't get to the guns from outside the car, so the possibility of a gun in the car ins't a danger to you, is it? They're wearing fairly tight jeans and T-shirts. You'd be able to see a gun in their waistbands. What now? Let them go? What of poor Bob? Shall his death go unavenged?

 

[Long Path]

Bob's getting medical care, or some such.

 

[Long Path]

I think it would be an ureasonable detention to make him wait for you to go to the magistrate, type up a warrant request and submit it.

Frank, I have to disagree. You have excellent reasonable suspicion, and you can detain until you've exhausted your investigation. I note from above that Bob has expired, so you're dealing with a capital murder here. You best make sure that you're on very solid ground. From a practical standpoint, the best response would be:
1. Call for backup.
2. Call for a supervisor.
3. Call the DA.
4. Find a magistrate.
5. Get everything lending intself to P.C. on paper, and see if it adds up to Probable Cause in a Magistrate's view.

Best be damn careful about using Terry frisks and wingspan searches for looking for rings-- they're allowed only to look for weapons. Sure, when patting down and you feel something that is unmistakably a ring, it adds to your P.C., but THAT WASN'T THE REASON FOR THE PATDOWN!

 

[FrankDrebin]

I think you have probable cause on the car and should search it. If not that, you definately have enough for a Terry search of them and the car and should do that without delay. What if the judge determines that you DON'T have probable cause and denies the warrant? Then you just held them there for 2 hours waiting for the warrant that is denied. At that point, I think it's too late to do the Terry search for weapons in the car that would have given you the gun, money bag etc...ie. "If you were so concerned about weapons, why did you wait for 2 hours while you fished for a warrant before you made sure they didn't have any weapons?"

Also, I think that if you hold the guy for 2 or 3 or 4 hours while you're waiting for the warrant, you've gone from a reasonable suspicion Terry investigation/detention to a constructive arrest without probable cause. I think you are allowed to detain them only long enough to conduct an investigation at the scene, NOT long enough to wait for a determination on a warrant. I think the time it would take to submit a warrant request is way too long for a reasonable suspicion detention and would rise to the level of an actual arrest. You don't have probable cause to arrest THEM yet, just probable cause to search the car ala Carroll (for those of you who don't believe in case law, disregard).

I made this a little too complicated for my question to the "no case law" crowd, although it's still a good scenario. What I REALLY want to know is: Suppose you have probable cause to search the car. You search it and don't find anything, but there's that ring imprint on the guy's pants. You have probable cause to search the car for the ring. He was in the car. Does that give you probable cause for a warrantless search of the guy who fits the general description of the suspect wanted in the homicide/robbery of the gas station? In other words, if you have a legal reason to search the car without a warrant, can you search him? (Don't help the "no case law crowd out!! They only get to use the 4th amendment).

 

[FrankDrebin]

I just re-read Frisbie V Collins....You "constitution only" types will LOVE that one!!!!

 

[Long Path]

Whoops! I didn't play by the rules on your game, here-- I referenced "reasonable suspicion," which is a case law term not mentioned in the 4A. And hell yes, a Terry frisk would be immediately forthcoming. Never said it wouldn't. Not that such a thing doesn't rely on case law, of its own.

 

[FrankDrebin]

Whoops! I didn't play by the rules on your game, here-- I referenced "reasonable suspicion," which is a case law term not mentioned in the 4A. And hell yes, a Terry frisk would be immediately forthcoming. Never said it wouldn't. Not that such a thing doesn't rely on case law, of its own.

Yeah it makes it difficult when trying to relate the ideas to the "no case law" point of view. Of course, if we had case law, they'd be legally arrested with legally seized evidence about 10 minutes after they were stopped and Terry Searched. Check out Frisbie V. Collins. I still love that one.........Never had to rely on it, but that was the case I was trying to find when we were arguing about the exclusionary rule relative to arrests vs. evidence seizures.

 

[Long Path]

Looking it over now. As it relates to Crews (1980), the court seemed to hold that an illegal arrest or detention doesn't necessarily disallow subsequent conviction. Sounds awful, until you consider that all information obtained during the arrest would be disallowed. Just prune the poisoned fruit, and you may still have a viable tree.

 

[FrankDrebin]

Just prune the poisoned fruit, and you may still have a viable tree.

Good analogy....I just like the part where they blackjacked the bejesus out of him and abducted him back to Michigan from Chicago.....Wonder who he killed?? I haven't even seen a blackjack in over 15 years....

 

[Long Path]

More of a soverignty issue. Reminds me of United States v. Alvarez-Machain (1992), where US Agents in Mexico abducted a doctor who had allegedly assisted in the torture of a DEA agent. Alvarez sued that this violated a US Treaty with Mexico. The Court said that, while the agents hadn't obtained Dr. Alvarez in a manner consistent with the treaty, they hadn't actually violated the treaty, and he could stand trial. (Case was thrown out due to insufficient evidence.)

 

[LAK]

FrankDrebin

I said an "interest" in being free from criminals. Meaning that society would like to be free from criminals to the greatest reasonable extent possible. This "reasonableness" is the balance between the individual's right to be free from government intrusion into his or her life and society's right to be free from criminal intrusion into their collective lives.

This can certainly be applied to things like the regulation of say the transport of hazardous substances - or the traffic lights at a busy road intersection - but not in systematic interruption of specific individual and codified rights on some kind of "collective" principle.

There is no evidence whatsoever that such a contrived blanket exception to the individual codified rights of citizens in any State was intended, and certainly if it were the writers and signers of such documents of the State Constitutions specify them. Such as in the Texas Constitution for example where the right to keep and bears arms is enumerated with the caveat that "the wearing of arms" is specified as an area the State may regulate with a general regard to it's effect on "crime".

For example, your right to be able to drive home without being inconvenienced vs society's right to be free from drunk drivers killing them on the road in the case of drunk driving checkpoints, which, by the way, are federally proper but improper in the state of Michigan, and I think, some others.

There is no right to "drive home without being inconvenienced" per se. But a right to privacy, being secure in ones property and effects etc is more plausible and specifically codified to a greater or lesser degree depending on the jurisdiction. Again, it boils down to there being probable cause, or perhaps reasonable suspicion, that a specific crime has been committed, and I am a suspect - before I should be interrupted, asked questions about myself, where I am going, where I have been, etc by anyone. Whether it be public servant, official or other agent of the State.

Yep, as far as I am concerned, they are improper on general principle; and I hope as many States as possible see it the same way.

Many rights ARE subjective. You may think it's OK to run a 50/50 chance of being killed by a drunk driver on the way home while others may think that those odds are so bad that alcohol checkpoints are a reasonable seizure.

This supposes that individual codified rights are subject to "democratic" or majority rule application - or that of the State. Open-ended nonsense; in such a case these codified rights may as well not be there at all, and a "wise counsel" or committee left to decide what is "right" and what is "wrong" when it comes to such issues.