tvc184

I haven’t had time to read the entire case. I did read that part of the evidence being from an unlawful search was due to the warrant being very specific on what could be searched and the lawyers’ personal property wasn’t listed. But, there is more than one way to skin a cat. That case was from a US district court in AL. Unless it went farther up the line (past the 11th Circuit to SCOTUS), it generally has no legal standing outside of that district.

…..and I don’t mean why like explaining personal issues.

Why?

DING DING DING DING!!! Yep, you can’t lawfully resist an unlawful arrest… in Texas and probably most other states. Not complying can be a crime, even if you are later found to be innocent of the original detention or arrest.

Speaking of complying…. The police make a completely unlawful arrest. They tell a guy he is under arrest and he shoves an officer’s hand away to try to keep from being handcuffed, while claiming (correctly) that it is an unlawful arrest. The police get him in custody and charge him with the original unlawful arrest and also resisting for shoving and officer’s hand but causing no injury. The DA dismisses the attest as unlawful. Does the Resisting Arrest charge go away? Here’s a chance at redemption.

That is why I (and maybe one of the few) find this interesting. We obviously don’t have to agree with laws or case laws/rulings but they are the law. I know my rights!! might show that we don’t know as much as Facebook and YouTube make us think we know. Comply, deny consent, remain silent and argue later.

I am curious about that case. SCOTUS? State court? Circuit court? Any subsequent case? Sometimes a case might be in the later (often) overturned. At other times the ruling may be relying on a state constitution (ruled by a state court) and not the US Constitution. Sometimes the police or lawyers will argue the wrong point. Like a warrant might not cover a third person since the warrant is specific on what can be searched however not relying on a warrant and using exigent circumstances may be lawful.

There are several cases (which is typical of principles and doctrines) that cover this. The SCOTUS will issue rulings and in the future will clarity, reaffirm or modify rulings. Many times it is simply reaffirming what was said earlier. Like a person or government will think that they have found a loophole in an earlier ruling. Then SCOTUS might accept another similar case to review to clarify what was said earlier. In this situation, the police can deny you entrance into your own home in order to prevent the destruction of evidence. A similar case is the aforementioned KY v. King where the police were chasing, the suspect for selling cocaine and mistakenly kicked in the wrong door. The rationale is to keep evidence from being destroyed and in that case, also fresh pursuit. The only real difference is in King the people/suspects were already inside of the home and so could destroy the evidence. There was no time for a warrant. If the same evidence existed but no one is in the home, negating the emergency, there is time for a warrant. The police can slow down and take time. In order to preserve the evidence, there is no requirement to allow a person inside to destroy the evidence. In a case from 2000, Illinois v. McArthur, SCOTUS in an 8-1 ruling said that if probable cause existed, it was not a violation of the Fourth Amendment to deny a person entry into his own home. Like in Randolph (also mentioned earlier), the wife said there was marijuana in the home but McArthur denied the police to enter. So the police locked the home down and got a warrant. In a quote from that case, Justice Breyer stated: "We have found no case in which this Court has held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time," As he clearly stated, they found “no case” where evidence was lost because the police were trying to do the right thing by obtaining a warrant (police diligence). To do so they case secure the scene an await a warrant and that includes keeping the owners out. [Hidden Content]

The police have probable cause (in their opinion) that you have drugs in your house but they don’t have a warrant. You show up at home at see officers outside. You try to go into your own home but the police stop you. You demand to be allowed to go into your home but the police say no, they are in the process of getting a warrant. Can the police deny you entry into your own home or even remove you from your own home without a warrant if they are in the process of attempting to obtain one?

According to the US Supreme Court (in GA v. Randolph), if one party is physically present and objects to a search, even if another consents, such a search would then be unconstitutional. [Hidden Content]

However… That wasn’t the question. Let’s even assume that she was. The question still remains, was the search with consent lawful under there scenario?

It wasn’t her drugs.

Officers go to a family disturbance between a man and woman. While officers are speaking with both of them, she got really mad and said I’m tired of him using cocaine and he left it in the bedroom. The woman says I have a lawful right to that bedroom and you can go in there with my consent. The man says I have a lawful right to the bedroom and you do not have my consent. So the police have lawful consent to go into the bedroom from one of the parties at the location but the husband and wife are not in agreement. The police go in and find the cocaine where woman said it would be, arrest the man and he is convicted. Lawful search with consent?

Another good but different question. There are two Supreme Court cases that I use to teach this in the police academy. One was just discussed in Kaupp. The police handcuffed Kaupp without probable cause and a unanimous Supreme Court said that handcuffing without probable cause was an arrest, no matter what the police said, rendering anything afterwards as inadmissible in court. I follow that up with another case where the police handcuffed a person without probable cause which again resulted in a unanimous ruling. This ruling however, went in favor of the police. So handcuffing without probable cause was lawful…. leaving us with…. Huh?? In that case the police were serving a lawful search warrant at a home. If I remember the details correctly, a woman was renting out a couple of rooms in her home for extra money. One was to a construction worker but he was also affiliated with a local violent gang. The police had a lawful warrant to look for evidence of gang activity and for illegal weapons. When the police made entry into the home, they rounded up everyone in the home and handcuffed them, I believe placing them in the living room where they could all be watched while the police made their search. One was an illegal alien named Mena. During the detention and questioning Mena was found to be an illegal alien. She sued saying that she was unlawfully detained under the Fourth Amendment. The SC ruled unanimously that the detention in handcuffs was lawful as well as officers speaking to her. The difference in the unanimous rulings that appear to be opposite? One had a fairly high safety concern where the other had practically none. The SC generally goes pretty heavy in favor of the police when safety is the concern. In Mena the police had probable cause of a violent gang member possibly with weapons. Not knowing who inside the house may have been involved with the gang or who may have been helping to hide the weapons, the SC ruled that the safety of officers and others was very important so it was not a violation of the Fourth Amendment. I think that specifically answers your question … which is why it is a great question. In teaching and in supervising I bring up that the police are always in danger because we never know what people are intending to do, who may be armed, etc. BUT…. we can’t simply handcuff everyone because everyone might be a threat. There has to be an articulable reason to take the extraordinary step of handcuffing without probable cause for arrest. In Kaupp there appeared to be no danger of an armed and dangerous person when the police woke up a 17 year old in bed, in his underwear and surrounded by 3 officers. Mena was also in a home and handcuffed without probable cause but obviously the scene was entirely different. The police cannot negate an unlawful detention or arrest simply by telling the person (such as Kaupp) that he isn’t under arrest. Those cases are guidelines to follow. Each case is different however. In the what if scenarios we can come up with many situations that are not so clear as those two unanimous decisions. If the police actions are questioned (as any good lawyer would certainly do), the judge at the trial has to make his own ruling based on the circumstances. Either side can then later appeal that decision. It is almost comparable to an umpire in baseball calling balls and strikes. The umpire knows the rules but sometimes the ball is in the middle of the strike zone and easy but sometimes it is near the edge. In baseball the umpire’s ruling is final. In court the judge’s decision can be appealed. Here is a short summary of Mena. [Hidden Content]

It is likely the statement would have been allowed. There are a couple of ways this probably could have been accomplished lawfully. The appeals courts and particularly the Supreme Court will generally only answer the question being argued. Discussions like this are interesting (in my opinion) but the courts don’t make rulings outside of a specific question. Meaning… while it is a very good and pertinent question of, had the police done “this” (whatever “this” is), would it be legal, those what if scenarios are not addressed. The SC will not say, this confession was a violation of the Fourth Amendment however if the police would have had his father drive him or had the police taken the confession at the home or blah blah blah…..”. If a case in the future addresses such a what if question, it will be addressed then.

There is a legal doctrine of the Exclusionary Rule. That is, once the police violate a person’s rights, any evidence gained afterwards is lost. A violation of rights typically doesn’t include physical abuse but usually a mistake by an officer. Example scenarios. In both situations a guy stops to speak with an officer and is later arrested for a crime. 1. A guy is walking down the sidewalk and an offices says, “Come here a minute, I want to ask you something” 2. A guy is walking down the sidewalk and an officer says, “Do you mind if I talk to you for a minute, I want to ask you something. 1. would likely be seen as a detention requiring reasonable suspicion of a specific crime. If none exists, any evidence is thrown out. 2. would likely be seen as a voluntary encounter with consent of the person stopped. Reasonable suspicion is not likely to be an issue since the person agreed to talk with the officer after being asked if “he minded” talking with the officer. See the difference? In the first scenario the office says come here and in the second he says, do you mind talking. One is an order, the other is a question So….. What would a reasonable person believe under the same situation is what must be answered by the court (from the trial judge and potentially all the way up to the US Supreme Court). The case I described was an actual case from Harris County, Texas that made it all the way to the Supreme Court. The 17 year old was asked to come in and was told that he was not in custody but just to make sure they were doing the right thing, the officers read Miranda anyway and the 17 year old agreed to talk/confess. Even though he said, “Okay” when asked by the officers to go with them, the 17 year old, in the opinion of the Supreme Court, decided that under the circumstances he would feel that he was being arrested. Even though the officers said no he was not under arrest, the fact that they handcuffed him after suspecting him of a murder and put him in the back of the police car in handcuffs should be considered an arrest. Would a reasonable person believe that he is free to leave at that point? The Supreme Court said no, that is an arrest no matter what the officers call it The US Supreme Court in a UNANIMOUS decision said that the 17 year old should have be considered under arrest and therefore his confession not allowed into evidence. Even though the officers later, attempt to put a 17-year-old at ease and to comply with the Fourth Amendment and the Miranda rights, it was too late. Remember that in the Exclusionary Rule, once the officers make a mistake, even with the best intentions and thinking that they are doing the right thing, it doesn’t matter. All subsequent evidence is lost. Had the officers not handcuffed the kid or if they would have gotten the father to give the kid a ride to the police station, the confession likely would have been admissible as evidence. [Hidden Content]

Police all over have been quitting in similar places but most don’t want to give up their careers. They try to find a more suitable place that supports the police. I had a friend who was a Missouri police officer and in a fairly quiet and conservative area. He moved to a mid-sized agency south of Houston. The officer said even though it was not bad where he was at in Missouri (and I was deputized there a week each year for 23 years so I know it’s not bad), it was noticeably better in Texas. He would sometimes go for his lunch break and when he went to pay, someone had already picked up the tab. I have had that happen many times. People would smile, wave, say hi, etc.

I have a relative like that. Maybe everyone does. It is more woke nonsense but has been around a lot longer than woke. American exceptionalism offends the heck out of some people.

Case: Confession in a sexual assault and murder of a 14 year old girl. Notable points: A 17 is an adult in Texas under criminal law. There is no need to get certified as an adult. A person ceases to be a child on his 17th birthday. Also, if a person consents to talking with the police (not being detained), consents to a search, consents to give a statement, etc., the police are not required to have probable cause. A person can consent to any of that. Case: A 14 year old girl had been sexually assaulted by her 19 year old half brother. Apparently this was an ongoing relationship and what used to be called statutory rape or sex with an underage child whether with consent or not. One day the half brother stabbed his sister to death, I believe after having sex with her. Maybe to keep her from reporting the assaults but I am not sure. In any case he confessed after volunteering to take a polygraph and failing. The case is not about him however. In the confession the brother implicated another person who was a 17 year old adult. The police showed up at the 17 year old’s home at 3am. The homeowner, father of the 17 year old, consented to allow officers to enter the home and speak to the 17 year old. The officers (3?) went to the bedroom and woke the 17 year old up. They said, we need to talk and the 17 year old said “okay”. These facts do not appear to be in dispute. So it’s not like the police gave one version and the 17 year old (or family) another. The police led him to the police unit since he had consented to speak with the officers by saying “okay” when asked. He was only wearing the T-shirt and boxers that he was sleeping in. The officers told him that he was not in custody but had to be handcuffed if in the back of the unit. He would have the handcuffs removed at the police station. Once arriving at the police station, the police took off the handcuffs and asked if he wished to talk. Even though he was told that he was not in custody, he was given his rights under Miranda to make sure that he was volunteering to speak with officers. It was kind of like a safeguard just to make sure he agreed to talk. After being read Miranda, the 17-year-old agreed to talk. He was confronted about the 19 year old’s confession that implicated him. Being confronted with that fact, he confessed to taking part in the crime. He did not specifically admit to taking part in the actual killing however under Texas law, if you take any part in a crime, then you to be charged with a crime. After that confession, the trial judge admitted the statement as evidence at the trial. The 17 year old was convicted and I believe given 35 years in prison. He appealed to the district appeals court, and they agreed with the trial judge, the confession was with consent. He made his final appeal to the Texas Court of Criminal Appeals (supreme court for criminal law) and they simply refused to hear the case. The 17 year old then appealed to the federal system, saying that his Fourth Amendment rights were violated. So even though the police were allowed with consent to another home and to speak with a 17-year-old, asked him to go speak to the officers and he said okay, was told that he was not in custody, was put in handcuffs just for the trip but then they were removed immediately after arriving at the station, was read the Miranda warning, just to make sure he understood that he was consenting to giving a statement and after being confronted with the fact that the 19-year-old had already confessed, his lawyer claimed that his rights were violated. Good confession or a violation of rights? In the Police Academy I would ask the cadets, if you say it was a lawful confession with consent, why? If you say it was an unlawful confession, why?

Yep. Strangely enough, people will voluntarily open the door with a half pound of marijuana on the coffee table.

Are you saying that if the police find something other than the intent of the search, it should be thrown out? For example if I smell marijuana in a vehicle and search it but inadvertently find an obviously illegal sawed-off shotgun, the gun cannot be used as evidence since I wasn’t looking for it? This is covered under the plain view doctrine, I think first established by SCOTUS in Harris v. CA. The plain view doctrine is that if an officer is lawfully present at a location and if he sees something that is “immediately apparent” that it is evidence in a crime, it can lawfully be seized as evidence. In this case from KY v. King, if you agree that the officer lawfully entered with PC, then any drugs in “plain view” can be seized as evidence. BUT… (and I don’t remember the case name) The officer cannot manipulate the item. The case I am thinking of is when officers were lawfully in a home of a criminal suspect. An officer saw a stereo or computer or some other electrical item and believed it might be stolen. It was. The officer however had to move the item a little to see the serial number. That case was thrown out by SCOTUS and the search was found to be unlawful. Under the plain view doctrine, the officer could not immediately tell that the item was stolen. His moving of it would require PC which the officer didn’t have. In fact if an officer has PC to search, the plain view doctrine is not needed. In King, let’s say that the officer lawfully entered to find the guy who ran but there was no apparent evidence of any other crime. In that case, you would be correct. The officer could only look for the suspect. Since the officer had PC to believe that he was looking for a person, he could only look where a person could hide. In other words, he could look in the bedroom, in the closet, under the bed, etc. He could not lawfully open drawers in a cabinet, look in boxes, etc. because a person could not have in those locations. In King, unfortunately for him, he had drugs in plain view when the officer entered.

An officer sees a guy standing on a corner. He is met by another man. Alternately they casually walk down the block and look around near a store front. One would walk down the block and return, they would talk and then the other would walk down the block. After a few minutes a third guy came up and did the same. He then walked away from the first two and didn’t return. The officer said that it looked like they might be casing a store to be robbed. So when the first two guys walked to meet with the third guy, the officer had seen enough and approached and then grabbed onto one of the men. He physically spun the guy around and checked him for weapons. Finding a revolver the officer ordered the other two up against the wall and found another gun. The officer did not have probable cause to believe the men might be armed or about to commit a crime but he was suspicious of their behavior by his “experience”. The armed men were convicted of the weapons violation. There was no evidence to prove if the men were about to commit a crime. Lawful?

Entry without consent must be bases on probable cause/PC (not reasonable suspicion). To enter (or search) based on PC but without a warrant there must be exigent circumstances. PC has several but virtually identical definitions/interpretations. It is articulable facts and circumstances known to the officer at the time of a search (or arrest), to which the officer has reasonably trustworthy information, that would make a reasonable person believe that a crime is about to be or has been committed. Basically it could be said, what would a reasonable or a cautious man believe if he had the same facts as the officer and with the same knowledge as the officer? Would this reasonable person believe that it is “probably” true? In this particular case, officers in Kentucky had probable cause to believe that a man just sold cocaine to an undercover. A foot chase ensued and the officer turned the corner and found two doors. On one side there was no sound and no odor but on the other there was the odor of marijuana and upon knocking on the door (which is obviously legal), there was bumping and noises as if somebody might have been getting ready to escape or get rid of drugs, etc. The officer only being a few seconds behind the suspect knew that he had to be in one of two apartments. One was silent with no odor and in the other he heard noises and could smell marijuana. The question becomes, would a reasonable person believe that a suspect who they just sold drugs and fled on foot was in the apartment with all kinds of noises and the smell of marijuana? The US Supreme Court overruled the Kentucky SC in an 8-1 decision and said the officer had probable cause to enter without a warrant. Remember that “probable” is a likelihood and not a guarantee. [Hidden Content]

Any more opinions??

ABSOLUTELY NOT! I wouldn’t have stopped either. That’s a what if with a few scenarios. What if the officer was running radar but he was not watching it at the moment both passed? You can tell that they were both speeding, but it was only his judgment as he was not looking at the radar. The officer could certainly make a lawful traffic stop using his opinion on what he saw, but can you justify citation for court and prove beyond a reasonable doubt? What if he saw both cars speeding but then saw the second car committee second traffic violation and since he could probably only stop one, chose the driver that didn’t use the turn signal? What if the officer just randomly chose one of the cars and after speaking with the driver, wrote only the citation for no turn signal? I hated writing citations and rarely did.