Law Trivia and Discussions

[rupert3]

1 hour ago, tvc184 said:

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?

I may be wrong but if the officer smells mary jane then that should be reasonable cause to search, the vehicle.  Even if the driver refuses.

[tvc184]

6 hours ago, rupert3 said:

I may be wrong but if the officer smells mary jane then that should be reasonable (probable) cause to search, the vehicle.  Even if the driver refuses.

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. 

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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.

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[rupert3]

A man walked into a Beaumont Circle-K, put a $20 bill on the counter, and asked for change. When the clerk opened the cash drawer, the man pulled a gun and asked for all the cash in the register, which the clerk promptly provided. The man took the cash from the clerk and fled, leaving the $20 bill on the counter. The total amount of cash he got from the drawer... $15. [If someone points a gun at you and gives you money, is a crime committed?

[tvc184]

3 hours ago, rupert3 said:

A man walked into a Beaumont Circle-K, put a $20 bill on the counter, and asked for change. When the clerk opened the cash drawer, the man pulled a gun and asked for all the cash in the register, which the clerk promptly provided. The man took the cash from the clerk and fled, leaving the $20 bill on the counter. The total amount of cash he got from the drawer... $15. [If someone points a gun at you and gives you money, is a crime committed?

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, 

 

[tvc184]

Of course where you asked, was a crime committed, I could have said “yes” and left a one word answer.

😂

[tvc184]

Another note on Robbery or Aggravated Robbery.

Notice that the culpable mental state for causing injury can be as little as Recklessly, which not so coincidentally is the same as assault. Notice also that the definition of in the course of committing theft it includes the immediate flight from the attempted theft.

So what if……

A guy steals a $1 candy bar and a person chases him. As the suspect runs out of the store, he shoves open the door and it hits a 75-year-old woman. She falls to the ground and gets a scratch on her elbow.

 What if the crime? 

[rupert3]

10 hours ago, tvc184 said:

Another note on Robbery or Aggravated Robbery.

Notice that the culpable mental state for causing injury can be as little as Recklessly, which not so coincidentally is the same as assault. Notice also that the definition of in the course of committing theft it includes the immediate flight from the attempted theft.

So what if……

A guy steals a $1 candy bar and a person chases him. As the suspect runs out of the store, he shoves open the door and it hits a 75-year-old woman. She falls to the ground and gets a scratch on her elbow.

 What if the crime? 

I would think it would be the store's fault and not the thief because of the employees chase.

Just guessing

[tvc184]

37 minutes ago, rupert3 said:

I would think it would be the store's fault and not the thief because of the employees chase.

Just guessing

I never said an employee. I said “a person” chases the suspect.

But legally it wouldn’t matter. This if from the Code of Criminal Procedure:

Art. 18.16. PREVENTING CONSEQUENCES OF THEFT. Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose.

Any person has the authority to take a person into custody for stealing or to (as the law says) prevent the consequences of theft.

Stealing the $1 candy bar carries a maximum penalty of a $500 fine and no jail time.  In try to flee the suspect recklessly injured a woman who was 75 years old. That brings the theft to an Aggravated Robbery which is a first degree felony carrying a maximum penalty of up to 99 years in prison and up to a $10,000 fine.

You can bet that the police would make that arrest and the DA from my experience will go after those charges.

If any person suffers an injury it is Robbery and up to 20 years in prison but if the injured person is 65 or older or handicapped, it uos it to Aggravated Robbery.

I love the Facebook lawyers when a person will make a comment on the media sites like, my little cousin took a bag of chips and the police charged him with Robbery but he didn’t point a gun at anyone.

Oh well…..

[tvc184]

Let’s say the  police have a lawful search warrant.

 They raid a home for drugs and get in a shootout with the owner.  An officer is killed and the resident wounded but survives.

 The police who were lawfully inside of the home with a valid warrant are now inside of the home of a major crime scene.

Would the police have to vacate the home where they are lawfully at and seek a different warrant or can they remain at the homicide scene where they lawfully made entry and now witnessed a capital murder? 

[rupert3]

11 hours ago, tvc184 said:

I never said an employee. I said “a person” chases the suspect.

But legally it wouldn’t matter. This if from the Code of Criminal Procedure:

Art. 18.16. PREVENTING CONSEQUENCES OF THEFT. Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose.

Any person has the authority to take a person into custody for stealing or to (as the law says) prevent the consequences of theft.

Stealing the $1 candy bar carries a maximum penalty of a $500 fine and no jail time.  In try to flee the suspect recklessly injured a woman who was 75 years old. That brings the theft to an Aggravated Robbery which is a first degree felony carrying a maximum penalty of up to 99 years in prison and up to a $10,000 fine.

You can bet that the police would make that arrest and the DA from my experience will go after those charges.

If any person suffers an injury it is Robbery and up to 20 years in prison but if the injured person is 65 or older or handicapped, it uos it to Aggravated Robbery.

I love the Facebook lawyers when a person will make a comment on the media sites like, my little cousin took a bag of chips and the police charged him with Robbery but he didn’t point a gun at anyone.

Oh well…..

Thats what I get for assuming it was an employee doing the chase.  What if it were an employee doing the chase?  Would it be a dual responsibility for the lady getting hurt? Perhaps criminal and civil?

[rupert3]

3 hours ago, tvc184 said:

Let’s say the  police have a lawful search warrant.

 They raid a home for drugs and get in a shootout with the owner.  An officer is killed and the resident wounded but survives.

 The police who were lawfully inside of the home with a valid warrant are now inside of the home of a major crime scene.

Would the police have to vacate the home where they are lawfully at and seek a different warrant or can they remain at the homicide scene where they lawfully made entry and now witnessed a capital murder? 

I'm guessing they would/could stay and do a full investigation including full search for any and everything relating to original warrant plus the added shooting and impeding the search under the original warrant

[tvc184]

47 minutes ago, rupert3 said:

Thats what I get for assuming it was an employee doing the chase.  What if it were an employee doing the chase?  Would it be a dual responsibility for the lady getting hurt? Perhaps criminal and civil?

The part of the law that I posted says that anyone has the lawful authority to make an arrest for a person stealing just as much as a police officer. So would a police officer be charged with Aggravated Robbery for chasing a suspect?

Obviously the answer is no, as it would be for anyone else. The person chasing has no criminal responsibility whether a police officer, a random citizen or an employee or owner.

Civil? I doubt it unless a reckless act by the person doing the chasing caused the injury. If a person jumps into a car to chase the suspect and hits someone else, certainly there is responsibility but no responsibility for the criminal act of the robbery.

While on the subject of robberies, often what is called purse snatching results in a robbery. Words/phrases such as home invasion, carjacking, jaywalking, shoplifting, vandalism, disturbing the peace, etc. are not the actual names of crimes but colloquial terms used to describe crimes. Purse snatching is just a theft however when you combine assault and theft, you have Robbery. So if a person grabs a purse from someone and scratches the person on the arm, cause pain in any manner, etc., it just got elevated to Robbery or depending on age, Aggravated Robbery. 

[tvc184]

1 hour ago, rupert3 said:

I'm guessing they would/could stay and do a full investigation including full search for any and everything relating to original warrant plus the added shooting and impeding the search under the original warrant

In this actual situation the police stayed for many hours like into the second day. Any search beyond that for drugs in the original warrant, requires obtaining another warrant. I think that even had they stayed past the typical short time to do a drug search, a warrant would be necessary. The fact that they stayed many hours was not so much the issue but what they were looking for. Once the search for drugs ended, so does the authority of the warrant. 

 The Fourth Amendment violation in this case was searching a home without a warrant for evidence in a murder and without exigent circumstances. The drug warrant was for drugs only. Anything randomly seen during the search for drugs (or anything else) on a valid warrant is admissible for evidence. For example if officers are lawfully looking for drugs and stumble upon a machine gun, that would then be a lawful piece of evidence. If however, the search warrant was for a machine gun only and the police opened a small jewelry box and found drugs, that would be an illegal search. There is no reasonable expectation that a machine gun would be in a small jewelry box.

In this case looking for drugs would still be lawful but it would have to be reasonable. I have been on several search warrants for drugs and none took several hours. With the suspect gone (in custody and in the hospital), there was no more emergency. The only way for a valid search of a home without a warrant is with consent or an exigent (emergency) circumstance. With the scene secure, the exigency was gone.

The state made the case in front of SCOTUS that once at a major crime scene, a warrant was not needed. SCOTUS disagreed in an 8-1 vote. The Fourth Amendment didn’t say… people have the right to be secure in their homes from an unreasonable search unless it is a major crime scene.

Nope, a serious crime still needs a warrant. But….

Most major crime scenes are not inside of the suspect’s home. If a person kills a store clerk in a robbery (Capital Murder), a warrant at the major crime scene is not needed. Why one and not the other? Because inside of the home of the suspect is specifically protected by the Fourth Amendment, not a store. The suspect has no expectation of privacy inside of a store open to the public. It would be likewise if a person broke into your home to steal stuff (Burglary). The police would not need a warrant to search your home for fingerprints and other evidence because the burglar has no expectation of privacy inside of your home. His home? Absolutely. Your home? None whatsoever.

 The case is Mincey v. Arizona

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[rupert3]

I am partly wrong and partly right on most.  I really enjoy the scenarios you present.  Just a book of knowledge.  I guess mostly from your years of experience.  Nothing beats experience.

[tvc184]

6 minutes ago, rupert3 said:

I am partly wrong and partly right on most.  I really enjoy the scenarios you present.  Just a book of knowledge.  I guess mostly from your years of experience.  Nothing beats experience.

Yes, doing it for almost 40 years and teaching it for 30.

 Then it is interesting to me which is probably the most important.

And always something new. New important court cases come up every year and Texas changes laws every other year.

[rupert3]

On another note the governments in general spend tons of money trying to protect us from ourselves. Just an observation not necessarily from a law standpoint.

There are a lot more folks who care about laws, than there are law breakers.  There are some bad laws but the majority of laws are good and needed.  Most come about through experience and mistakes.

[tvc184]

Two vehicles on IH-10 between Beaumont and Houston where there are three lanes in each direction.

One car is in the far outside lane and the other car is in the far inside lane with the middle lane open. Both change lanes at the same time trying to get into the center lane and they collide.

Is anyone at fault? 

[rupert3]

The one on the right???

 

[LumRaiderFan]

I’ll guess that the car in the left lane is at fault since they would likely be going faster and should have a better view of what’s happening in front of them, but that is a 100% guess.

[tvc184]

The vehicle on the left has the right of way.

Speed is not an issue and vehicle on the right might be going faster. I know that I was sure passing cars in the far right lane this last Sunday while coming back from Houston

 If two vehicles are changing into the same lane, the one in the left has the right of way. I am assuming that it is because the driver on the right who is moving to his left, has a very clear look at the lanes whereas the driver in the left probably can’t see much of that center lane. Rationale aside, the law clearly says that the vehicle in the left has the right of way. 

[rupert3]

1 hour ago, tvc184 said:

The vehicle on the left has the right of way.

Speed is not an issue and vehicle on the right might be going faster. I know that I was sure passing cars in the far right lane this last Sunday while coming back from Houston

 If two vehicles are changing into the same lane, the one in the left has the right of way. I am assuming that it is because the driver on the right who is moving to his left, has a very clear look at the lanes whereas the driver in the left probably can’t see much of that center lane. Rationale aside, the law clearly says that the vehicle in the left has the right of way. 

I was wrong again as usual.  Hence "Right" of way.  LOL

[tvc184]

2 hours ago, rupert3 said:

I was wrong again as usual.  Hence "Right" of way.  LOL

The way I read your answer, you were correct.

 I asked…. “Is anyone at fault?”

You answered…. “The one on the right”

My answer said 3 that times that the vehicle to the left had the right of way. That makes the vehicle to the right at fault which was my question.

Who has ROW? Left

Who would then be at fault? Right 

[tvc184]

Right has ROW at intersections. Left has ROW when vehicles are moving into the same lane. 

[tvc184]

Here is the actual law:

Sec. 545.061. DRIVING ON MULTIPLE-LANE ROADWAY. On a roadway divided into three or more lanes and providing for one-way movement of traffic, an operator entering a lane of traffic from a lane to the right shall yield the right-of-way to a vehicle entering the same lane of traffic from a lane to the left.

If 3 or more lanes (like my IH10 example) the right lane shall yield ROW to the entering the same traffic lane from the left. 

[WOSdrummer99]

What's the law about driving in the left lane for passing only?