Law Trivia and Discussions

[Hagar]

7 hours ago, tvc184 said:

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? 

 

Based on her statement, admitting there was cocaine in the home, and her  allowing the search, I’d think the search was legal based on PC.

Just an observation - I’m not sure many lawyers would be cognizant of all these little “technicalities”, or make better Police Officers.  Based on the number of overturned cases, it’s evident many Prosecutors aren’t.

[WOSdrummer99]

8 hours ago, tvc184 said:

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? 

 

Why wasn't she arrested???

[tvc184]

45 minutes ago, WOSdrummer99 said:

Why wasn't she arrested???

It wasn’t her drugs. 

[tvc184]

45 minutes ago, WOSdrummer99 said:

Why wasn't she arrested???

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? 

[WOSdrummer99]

30 minutes ago, tvc184 said:

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? 

I believe so. But please tell me I'm wrong.

[thetragichippy]

5 hours ago, tvc184 said:

It wasn’t her drugs. 

That what I would say if I was caught with drugs......

[tvc184]

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.

This is the hidden content, please

• Sign In
• or
• Sign Up

[tvc184]

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?

[thetragichippy]

2 hours ago, tvc184 said:

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?

I would say no. 

There was a case where Detectives were outside of a courthouse waiting for a subject to come out to serve him with a warrant to search his person and take all electronic devices.  On camera a security guard witnessed the subject handed two phones to his attorney, who handed them to his assistant and she put them in her bag. The detectives wanted that phone and ended up arrenting both attorneys because they would not comply. It was ruled they did not have a search warrant that expanded to her bag. So, I would think no one can keep you out of your own home "waiting" for a search warrant. 

[tvc184]

4 hours ago, thetragichippy said:

I would say no. 

There was a case where Detectives were outside of a courthouse waiting for a subject to come out to serve him with a warrant to search his person and take all electronic devices.  On camera a security guard witnessed the subject handed two phones to his attorney, who handed them to his assistant and she put them in her bag. The detectives wanted that phone and ended up arrenting both attorneys because they would not comply. It was ruled they did not have a search warrant that expanded to her bag. So, I would think no one can keep you out of your own home "waiting" for a search warrant. 

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.

This is the hidden content, please

• Sign In
• or
• Sign Up

[thetragichippy]

2 minutes ago, tvc184 said:

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.

This is the hidden content, please

• Sign In
• or
• Sign Up

I am batting ZERO 

I'm going to end up being one of those guys dragged out his car yelling "I KNOW MY RIGGHHHTSTSSS"   LOL

[tvc184]

5 hours ago, thetragichippy said:

I would say no. 

There was a case where Detectives were outside of a courthouse waiting for a subject to come out to serve him with a warrant to search his person and take all electronic devices.  On camera a security guard witnessed the subject handed two phones to his attorney, who handed them to his assistant and she put them in her bag. The detectives wanted that phone and ended up arrenting both attorneys because they would not comply. It was ruled they did not have a search warrant that expanded to her bag. So, I would think no one can keep you out of your own home "waiting" for a search warrant. 

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. 

[tvc184]

2 minutes ago, thetragichippy said:

I am batting ZERO 

I'm going to end up being one of those guys dragged out his car yelling "I KNOW MY RIGGHHHTSTSSS"   LOL

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. 

[thetragichippy]

2 minutes ago, tvc184 said:

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. 

This is the hidden content, please

• Sign In
• or
• Sign Up

 

This is the hidden content, please

• Sign In
• or
• Sign Up

 

This was about a lawyer being arrested for not giving a couple cell phones to detectives because even though warrant asked for electronic devices, the guy handed the phones to his attorney before the search warrant was served (like 10 minutes before inside the courthouse) 

[thetragichippy]

2 minutes ago, tvc184 said:

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

One thing I do know, my battle will be fought in court. In my 57 years of life, one arrest for PI (in my early 20's, I was a passenger in a car who's driver was arrested for DUI, paid extra fine to have it taken off my record) and a few tickets, I have never had a bad experience with a police officer. I felt it was my job to give him no reason to harass me. As I get older, that gets a little harder....lol

[tvc184]

3 minutes ago, tvc184 said:

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. 

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. 

 

[thetragichippy]

11 minutes ago, tvc184 said:

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. 

 

No, because resisting an unlawful arrest is still unlawful. 

[tvc184]

1 minute ago, thetragichippy said:

No, because resisting an unlawful arrest is still unlawful. 

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.

[WOSdrummer99]

I basically had to recuse myself from these proceedings.

[tvc184]

1 hour ago, WOSdrummer99 said:

I basically had to recuse myself from these proceedings.

Why?

[tvc184]

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

[WOSdrummer99]

1 hour ago, tvc184 said:

Why?

IMO the laws are there to protect most people in most cases. I've been in situations that didn't work out so well. And now I find out that it could/should have been different. But for a young man to know all these laws is impossible. I know, I know, just don't do it and you'll be fine.

Please continue. It's very educational 

[tvc184]

4 hours ago, thetragichippy said:

This is the hidden content, please

• Sign In
• or
• Sign Up

 

This is the hidden content, please

• Sign In
• or
• Sign Up

 

This was about a lawyer being arrested for not giving a couple cell phones to detectives because even though warrant asked for electronic devices, the guy handed the phones to his attorney before the search warrant was served (like 10 minutes before inside the courthouse) 

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. 

[tvc184]

1 hour ago, WOSdrummer99 said:

IMO the laws are there to protect most people in most cases. I've been in situations that didn't work out so well. And now I find out that it could/should have been different. But for a young man to know all these laws is impossible. I know, I know, just don't do it and you'll be fine.

Please continue. It's very educational 

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. 

[tvc184]

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?