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Misdemeanor

Started by duffman1741, July 15, 2013, 05:18:49 AM

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Eclipse

Philosophical arguments have a place.  By the side of the road on a traffic stop, especially if you aren't hiding anything, isn't one of them.

Just because you assert your constitutional rights, doesn't mean you will be patted on the head and sent on your way.  It likely means the more rights you assert, the more supervisors will get involved, and the more attention you will bring to yourself.  In the words of a PD friend of mine "People who choose to call attention to themselves, will get attention."

The majority of LEOs are simply trying to ascertain your "deal" and once done, have better things to do with their time then stand there while you read a card you printed from some rights web site.  And as a taxpayer, I'd prefer he was available for that real work instead of wasting his time with your CCW discussions, and video taping them, and all the other crap that just piles up the courts even higher about things no one really cares about, and the people invovled don't really understand, anyway.

Do what you will, I need to get to clients / airport / CAP / home.

"That Others May Zoom"

Ned

A couple of observations from someone who does a lot of suppression hearings:

The burden is always on the prosecution to show a knowing and voluntary waiver by a preponderance of the evidence.  Acquiescence to authority is not consent.  The subject whose consent is sought must be aware of their ability to refuse or decline the request.

If the prosecution cannot establish a knowing and voluntary consent, then the evidence is not going to come in, unless there is a search warrant or it comes in via some other exception to the warrant requirement of the Fourth Amendment.  (Search incident to arrest, border search, etc.)  But as others have pointed out, if some other exception to the warrant requirement exists, normally the prosecutor does not normally bother with consent.  Sometimes they do, if their other grounds are flaky, but it is unusual.

I have suppressed kilos of heroin, many firearms, and even a clown mask (used in a bank robbery) when the DA was unable to establish consent or another applicable exception.  I have also been awakened countless times at "o dark thirty" to do telephonic search warrants.  So I guess it all works out.

Ned Lee
Former CAP Legal Officer

Flying Pig

bflynn..."Implied consent is there all the time!??"  Where do you get this stuff?  So in 16 years working patrol, narcs, FTO etc, I totally missed the fact that I can just tell people Im going to start searching and unless you stop me thats consent.  Crazy!!! Think of all the criminals Ive just let drive away because they said I couldnt search.  Darnnit.... Im mad now

Grumpy

Quote from: a2capt on August 25, 2013, 06:34:25 PM
One similar incident that stands out to me, I got pulled over passing a 7-Eleven in a "transient" part of town, (cops and school district actually have that area labeled as "transient" due the fact that it's four-plexes and rentals, which leases are rare, it's all mostly month to month). Cop didn't say much, just asked me for all the stuff, didn't tell me why,  I could have asked. I know I didn't do anything. I just forked it all over.

About 45 seconds later, he comes back, practically "dumps" it back in my window. That said, if I my open hand was not there, I'm not sure if he would have just dropped it, or waited for me to take. "Have a nice day", and he left.  I figure it was easier to cooperate at the time.

I did follow up on it shortly after, going to the police station and asking to speak to "someone in charge".  I never got an a complete answer, but it was acknowledged that it should not have happened like that, but that perhaps at the heat of the moment they were looking for someone .. and I fit the bill.

About the oddest thing I had that day- RC Dark Cola in brown long neck bottles, in a six pack carrier on the passenger side floor, partially obscured by the hump. I looked over at that as I reached to get the registration .. and thought .. "that might not look like what it is.."  and one bottle was open, in the holder, with the label facing away. I was definitely under-age at that time.

What I don't understand is how did RC Cola get into "Cokeman's" car.  We're you sick?

a2capt

Quote from: Grumpy on August 25, 2013, 09:56:01 PMWhat I don't understand is how did RC Cola get into "Cokeman's" car.  We're you sick?
I was 16, didn't know better ;)  But it was not Pepsi! Blech!

Eclipse

+1 RC was always considered a treat in my house when we got take out pizza, otherwise
Coke is it.

I got pulled over for eating a chicken sandwich once.  Cop said he
thought I was smoking a joint. Considering I was only one or two
bites in, that joint would have been huge!

"That Others May Zoom"

a2capt

Quote from: Eclipse on August 25, 2013, 11:39:24 PMI got pulled over for eating a chicken sandwich once.  Cop said he thought I was smoking a joint.
That whole car would have been smoking like a power plant. Cop must have had Cheech & Chong on his mind..
I still like RC now and then..

Flying Pig

Quote from: Eclipse on August 25, 2013, 11:39:24 PM
+1 RC was always considered a treat in my house when we got take out pizza, otherwise
Coke is it.

I got pulled over for eating a chicken sandwich once.  Cop said he
thought I was smoking a joint. Considering I was only one or two
bites in, that joint would have been huge!

Now THAT was an example of bad probably cause!

Mitchell 1969

Quote from: bflynn on August 25, 2013, 03:44:11 PM
Quote from: Mitchell 1969 on August 25, 2013, 06:13:52 AM
Quote from: bflynn on August 25, 2013, 01:14:05 AM
Quote from: Mitchell 1969 on August 24, 2013, 04:51:43 PM
I think you've totally missed the point. Read the "jerk question" again. The cop isn't asking for permission to search anything at that point. S/he is asking a question that will help facilitate a search that WILL happen, permission granted or not. And, yes, there are such things.

No, I didn't miss the point of the question. 

It is a dishonest way to begin a search, to ask a question that is normally answered yes or no and to get your way regardless of the answer.  Whether you answer yes or no to it, your answer constitutes consent to search because the officer said they were going to search and you didn't tell them they couldn't.    If an officer has probable cause already, they will not be asking you questions about what they'll find, they will just search.

At some point, I suspect some officers get hostile and raise the level of harassment.  Some won't.

I hold law officers to a higher standard than this and I think CAP core values do too.

Wow!  Double Whammy!  Missed the point AND don't understand how it works!

The answer doesn't constitute consent to search. Under the fact set given, the search is going to happen. And, failure to give consent to the search won't, alone, stop a search which is being driven by factors not requiring consent.

Meanwhile, I'm scratching my head trying to figure out how you think that CAP core values hold police officers to a higher standard.

Under the facts that I'm starting from in this circumstance, there is neither probable cause nor consent, so the officer isn't going to be doing a search.  If the officer has either consent or probable cause, they don't stand around having a friendly conversation about what they might find, they just start searching.

Suppose the officer asks "Before I start to search, do you have anything illegal"?  Whether you answer Yes or No, you did not object to the officer searching.  Consent has now been tacitly given.  That is trickery because most people don't catch the implied consent in a No answer.  Trickery is not honest.  I hold police to the standard of being honest and restrained.  Most are.

Are we starting from a different situation?  If there is already consent or already probably cause, then the question means something entirely different and is largely irrelevant.

Wait a second - are you or have you been a cop? If not, how about not speculating about what the officer might or might not ask prior to starting a search? (Hint: it isn't one-size-fits-all; a lot of what is said and done is tailored to fit a whole range of circumstances and facts).
_________________
Bernard J. Wilson, Major, CAP

Mitchell 1969; Earhart 1971; Eaker 1973. Cadet Flying Encampment, License, 1970. IACE New Zealand 1971; IACE Korea 1973.

CAP has been bery, bery good to me.

Flying Pig

flynn....

Where are you getting this idea thats its an acceptable practice to trick or word game people into accidentally giving consent for a search?   The examples you are citing show your complete lack of knowledge.  Are you witnessing this type of thing happening regularly?

abdsp51

Quote from: Flying Pig on August 26, 2013, 12:27:40 PM
flynn....

Where are you getting this idea thats its an acceptable practice to trick or word game people into accidentally giving consent for a search?   The examples you are citing show your complete lack of knowledge.  Are you witnessing this type of thing happening regularly?

It's his typical MO of speaking about something or dynamics he has no experience or knowledge of .

bflynn

#151
Quote from: Flying Pig on August 26, 2013, 12:27:40 PM
flynn....

Where are you getting this idea thats its an acceptable practice to trick or word game people into accidentally giving consent for a search?   The examples you are citing show your complete lack of knowledge.  Are you witnessing this type of thing happening regularly?

Regularly?  No, I suppose saying "all the time" is inaccurate.  It doesn't happen regularly.  I said that I've seen it happen.  I've experienced it.  There are enough news reports that show officers behaving badly to say that it happens.  Whether it or not it can be questioned in court later is a different factor.  Acceptable?  An officer that searches without consent is certainly not going to admit it to anyone, they will say that they saw something through a window and had probable cause.

John and Martha King?
Robert Fleming?
Gabriel Silverstein?
Larry Gaines?

It happens and these are just recent famous aviation incidents.  Fortunately, it is still rare.

Майор Хаткевич

The Kings had a plane that was in the system as stolen...the LEOs responded accordingly.

a2capt

Quote from: usafaux2004 on August 30, 2013, 05:19:46 PMThe Kings had a plane with a registration # that was in the system as stolen...the LEOs responded accordingly.
..and the yes, the LEO's responded accordingly.

The snafu was sorted out, but to expect cops to know what a Cessna 150 vs. 172 looks like, when that's all the database says, and all they see is a 12" tall number?

Pardon me, we need to see the dataplate.

Yes, they acted proper given the circumstances and the information given them at the time, and just like a car with the wrong plate on it, for all they know there's smugglers using a number off another aircraft. Even if they did know it was supposed to be a 150, and they see it's a 172.

Майор Хаткевич

Quote from: a2capt on August 30, 2013, 05:50:29 PM
Quote from: usafaux2004 on August 30, 2013, 05:19:46 PMThe Kings had a plane with a registration # that was in the system as stolen...the LEOs responded accordingly.
..and the yes, the LEO's responded accordingly.

The snafu was sorted out, but to expect cops to know what a Cessna 150 vs. 172 looks like, when that's all the database says, and all they see is a 12" tall number?

Pardon me, we need to see the dataplate.

Yes, they acted proper given the circumstances and the information given them at the time, and just like a car with the wrong plate on it, for all they know there's smugglers using a number off another aircraft. Even if they did know it was supposed to be a 150, and they see it's a 172.

Thank you for the correction.

I think even in a group such as CAP, half the members wouldn't be able to tell a 150/172/182 apart. If it's not your interest/knowledge, then all they heard was "stolen plane".

Flying Pig

HAAAA. you listed the Kings :). Thats a good one. Yeah... because John and Martha are household names.  Got it.

PHall

Quote from: Flying Pig on August 30, 2013, 06:33:43 PM
HAAAA. you listed the Kings :). Thats a good one. Yeah... because John and Martha are household names.  Got it.

They are if you hang out at airports! >:D