tvc184

Should I make this short or long…. 🤔 All crimes are made up of “elements”. Elements are each factor as to what constitutes a crime. These include the act or omission itself along with any required culpable mental state. The mental states (in law/Latin: mens rea or the mind accused translated to, the “guilty mind”) are Intentionally, Knowingly, Recklessly and Criminal Negligence. Each element of a crime must proven beyond a reasonable doubt for a conviction. As an example, Manslaughter: Sec. 19.04. MANSLAUGHTER. (a) A person commits an offense if he recklessly causes the death of an individual. (b) An offense under this section is a felony of the second degree. That if the entire statute. Can you point out the elements? There are two. Manslaughter is to (1) cause the death of a person and (2) do so with the culpable mental state of committing a reckless act. To prove those two elements is to prove the guilt of Manslaughter. Public Intoxication lists 3 elements. I always like to mention that because you can prove a homicide with two elements but it takes three elements to prove the class C misdemeanor of public intoxication. The elements are to be in public, intoxicated on a substance and a danger to himself or someone else. If all three can’t be proven then there is no crime. Why do we need to understand elements including culpability? This definition is used in the crimes of Robbery and Aggravated Robbery. Sec. 29.01. DEFINITIONS. In this chapter: (1) "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. So, you can see that committing a theft in the robbery laws, means even an “attempt” at theft. That is critical to your question. This is the section on Robbery: Sec. 29.02. ROBBERY. (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. (b) An offense under this section is a felony of the second degree. You probably don’t notice but Robbery is two separate crime jammed together. They are Theft (at least an attempt) and Assault. Assault is both a threat to cause injury or to actually cause injury. Either separately is an assault. Slap someone and they felt pain and it is an assault. Threaten to kick someone’s butt and it is an assault whether an injury occurred or not. So to injury or threaten to injury a person in order to commit a theft, is a Robbery. Looking at the laws that I listed you can see that even the attempt to commit a theft is enough to prove robbery. Aggravated Robbery is a robbery but the suspect used or displayed a deadly weapon or caused serious bodily injury (Robbery is just bodily injury) or commit a Robbery against a person 65 or older or a disabled person. So…… In your scenario, even if the suspect got absolutely nothing (and he got money)… it is still Robbery or in the situation you posted, an Aggravated Robbery since a deadly weapon was displayed. It carries up to 99 years orc the equivalent of Murder. Basically there is no such thing as an Attempted Robbery since an “attempt” actually proves the crime,

That would be correct… except change reasonable to probable. Reasonable Suspicion allows a forced detention but not an arrest or search. Probable Cause (PC) is justification for a search or arrest. It comes down to what is reasonable and probable as I mentioned under the Fourth Amendment. SCOTUS ruled way back in 1925 that with PC, there is no warrant requirement for a readily mobile vehicle. If PC exists, the vehicle can be searched. Basically there is no such thing as a warrant requirement on a traffic stop. It is from the case of Carroll v US which has come to be known as the Carroll Doctrine. [Hidden Content] While PC is required, the justification is that a vehicle by its very nature is an exigent circumstance. This is under the 4A requirement that a search not be unreasonable, as it says…. “against unreasonable searches and seizures, shall not be violated”. In the opinion of SCOTUS it is not reasonable to get a warrant and come back 3 hours later and hope the evidence and/or vehicle will still be there. A couple of subsequent rulings narrowed the exception to a warrant if it was a locked container. You could seize a container if needed and later get a warrant. That idea was again overturned by SCOTUS in CA v. Acevedo. In Acevedo SCOTUS did away with the multiple question decisions and circumstances like you can search a car but can a container be seized for a warrant, etc. They ruled finally clarified that if PC exists, anything in the vehicle can be searched including a locked container. Certainly PC is critical like always, even with a warrant. A forced search with PC can only allow searching a reasonable area. So if the police are looking for a full sized machine gun, there would be no justification for looking in the console or glove box of the vehicle. A machine gun will not fit. If they have PC to look for the tiny rock form of cocaine, they can look practically anywhere. As they say in the police academy, you can’t look for the elephant in the bread box. [Hidden Content]

An officer stops a vehicle for a minor traffic violation such as speeding. While talking to the driver about the traffic violation, the officer develops probable cause that there “may be” evidence of a crime in the vehicle such as smelling marijuana. So the officer asks for consent to search inside of the vehicle but the driver stands his ground, denies consent and tells the officer if he looks in the vehicle, he had better have a warrant. The officer says….. (with a parody from the movies), we don’t need no stinking warrant. Can the officer lawfully search without a warrant, if denied consent?

Yeah, that’s what my snide/tongue in cheek comment was about. It seems like every time this happens, here come the…. the dog was raised wrong comments.

Ahhhh…. they were just raised wrong… 🤔

I think that articles he wrote about flying were called Bax Seat… or something to that effect.

The rights are for everyone. The main contention is what violates rights and what doesn’t. An example is the Fourth Amendment where it says: 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. The issues arise because the amendment doesn’t define anything. What is probable cause? What is unreasonable? What are effects? What is a search? The amendment doesn’t prohibit all searches or seizures… only unreasonable ones. That is where case law comes from. The government (usually law enforcement but certainly not always) does something and justifies it in writing (articulable) and if contested (except it), the courts have to determine if the act was “reasonable”. A person doesn’t have to know or understand rights to be protected. So when a person says, “ I have the right to”… has a court of competent jurisdiction agreed in similar cases? Most legal concepts or doctrines have long been established but new cases will come up in the future.

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.