Law Trivia and Discussions

[tvc184]

On 4/21/2023 at 3:32 PM, tvc184 said:

After reading an article from yesterday on KBMT…

Let’s say a person displays a handgun in self-defense. The person however does not use the handgun. The article says that to display a weapon only is “considered deadly force”. 

In Texas law, displaying a deadly weapon and making a threat is Aggravated Assault and carries up to 20 years in prison.

Can a person lawfully present/display a deadly weapon but not use it? As the saying goes, if you pull a gun, you had better use it. 

No takers?

[tvc184]

Another?

An officer pulls over a person. While speaking to the driver, the officer orders him out of the car but the driver says no. He then refuses to get out of the vehicle and tells the officer to get a warrant.

Now what? 

[tvc184]

An officer is on patrolin what is called a high crime neighborhood. He is approaching a housing project where many calls such as disturbances, assaults and shootings have occurred.

As he nearest the complex, a man walking his dog flags the officer down and says in the parking lot of the apartments there are four or five people standing around a car and there appears to be some kind of disturbance. The officer says thanks and drives toward the apartment parking lot. The unknown man with a dog then walks away.

As the officer turns into the parking lot, just like the witness told him, there were five people standing around a car and they were pointing fingers at each other like there is an argument happening. On seeing the police officer, they all turned and walked away in different directions. The officer thinking he is witnessing a disturbance in public, tells a couple of them to stop and they comply with the officers commands. Since there appears to be some kind of an argument where people are mad and since he is out numbered, the officer is worried about his safety (I would be) and frisks them for weapons. He finds a gun on one of them and arrest him for unlawful carrying a weapon. He then finds cocaine on the guy after the arrest for a weapon in what is considered a lawful search incident to arrest. Once that person is under arrest, an officer also has legal authority to search that person completely before bringing him into the jail.

No problem?

Unlawful?

Comments? 

 

[SmashMouth]

On 4/22/2023 at 10:02 PM, tvc184 said:

Another?

An officer pulls over a person. While speaking to the driver, the officer orders him out of the car but the driver says no. He then refuses to get out of the vehicle and tells the officer to get a warrant.

Now what? 

You gotta get out of the car...

[rupert3]

I'd let him/her sit there and have it towed. LOL

I believe the have to follow a legal order.

[WOSdrummer99]

2 hours ago, SmashMouth said:

You gotta get out of the car...

Or eat some asphalt

[SmashMouth]

27 minutes ago, WOSdrummer99 said:

Or eat some asphalt

Truth. Lol.

[SmashMouth]

2 hours ago, rupert3 said:

I'd let him/her sit there and have it towed. LOL

I believe the have to follow a legal order.

Yep.

1. Lawful command

2. Face consequences for ignoring no. 1

[tvc184]

Yes on all the above…. 😂

The Supreme Court in Pennsylvania v. Mimms (driver) and Maryland v. Wilson (passengers) that there is no violation of the Fourth Amendment by ordering the driver or passenger(s) out of a vehicle with no justification whatsoever.

But, the Supreme Court doesn’t make criminal law so what happens if a person refuses? and then depends on state law. Texas has a law that says if you, even with criminal negligence interfere with a duty or authority of a police officer, is a crime called Interference With Public Duties, part of which says:    
(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:  
(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law;

In Carroll v. US (1925 from a traffic stop for moonshine during Prohibition) the Supreme Court ruled that there is no need for a warrant to search a readily mobile vehicle IF probable cause exists. They ruled that there is no time to get a warrant and expect the vehicle to be there two hours later when the police return with a warrant. A judge would later review the search if anything was seized to rule if a warrant would have been issued with the same facts. Basically the police must still file an affidavit for a warrant but they can do it after the search and if a judge does not agree, any evidence found will be thrown out.

 Then in US v. Ross (1982) the Supreme Court again reaffirmed Carroll.

In CA v. Acevedo (1991) the Supreme Court ruled that if probable cause existed, the police can search the entire vehicle including any closed containers. The CA Supreme Court had overturned a conviction of Acevedo on the grounds that the police needed to get a warrant to search a container because a container could be seized from the vehicle and put into police evidence thereby negating the emergency of a vehicle leaving before the police returned with a warrant. The Supreme Court basically said…. What….. are you stupid California?

In Maryland v. Dyson (1999) the Supreme Court ruled that even though the police knew that Dyson might’ve had drugs in the vehicle 14 hours earlier and had plenty of time to get a warrant, it was still not needed. The police got a credible tip that Dyson was carrying drugs but they did not find him for 14 hours. The lower court said that the police should have gotten a warrant since they had time. 

So from 1925 onward, the US Supreme Court has ruled that there basically is no such thing as a warrant requirement to search a readily mobile vehicle. Other courts, as noted, over the years have added, but what if the police knew earlier or what about a container. The USSC has always slapped them down with, look, we already told you way back in 1925, if the police have probable cause, as later reviewed by a judge, they can search.

So if you see a YouTube or Facebook lawyer say (not a real lawyer and there are some good ones for example on YouTube, but the Facebook law degrees-“I heard”), if the police don’t have a warrant they can’t search your vehicle with probable cause….. contact a real attorney. Certainly an attorney will contest the reasonable suspicion of a traffic stop and then the probable cause for the search but not that the USSC doesn’t allow it. 

[tvc184]

On 4/22/2023 at 10:15 PM, tvc184 said:

An officer is on patrolin what is called a high crime neighborhood. He is approaching a housing project where many calls such as disturbances, assaults and shootings have occurred.

As he nearest the complex, a man walking his dog flags the officer down and says in the parking lot of the apartments there are four or five people standing around a car and there appears to be some kind of disturbance. The officer says thanks and drives toward the apartment parking lot. The unknown man with a dog then walks away.

As the officer turns into the parking lot, just like the witness told him, there were five people standing around a car and they were pointing fingers at each other like there is an argument happening. On seeing the police officer, they all turned and walked away in different directions. The officer thinking he is witnessing a disturbance in public, tells a couple of them to stop and they comply with the officers commands. Since there appears to be some kind of an argument where people are mad and since he is out numbered, the officer is worried about his safety (I would be) and frisks them for weapons. He finds a gun on one of them and arrest him for unlawful carrying a weapon. He then finds cocaine on the guy after the arrest for a weapon in what is considered a lawful search incident to arrest. Once that person is under arrest, an officer also has legal authority to search that person completely before bringing him into the jail.

No problem?

Unlawful?

Comments? 

 

In this case, which no one has touched…..????

[WOSdrummer99]

12 minutes ago, tvc184 said:

In this case, which no one has touched…..????

Tough one for sure. I don't think anything was done unlawfully. All because of the unknown man with a dog. 

[tvc184]

6 minutes ago, WOSdrummer99 said:

Tough one for sure. I don't think anything was done unlawfully. All because of the unknown man with a dog. 

Unlawfully….. by who?

Put another way,  did the officer have reasonable suspicion (the Supreme Court does not require not probable cause as is often claimed) to detain them?

Facts as known to the officer and not disputed:   
1. Officer is flagged down about a disturbance in an area known for crime.

2. Officer immediately finds the suspected disturbance as noted by the description and location from the witness.

3. With his own eyes the officer sees what appears to be an argument in public.

4. When the people noticed the officer, they all started walking away in different directions, as if to avoid contact with him or possibly have something to hide? 

Does that rise to reasonable suspicion that a crime “might be” committed and not the much higher standard of probable cause where a crime is “likely or probably” being committed? If reasonable suspicion exists, an officer can lawfully detain a person.

[tvc184]

19 minutes ago, WOSdrummer99 said:

Tough one for sure. I don't think anything was done unlawfully. All because of the unknown man with a dog. 

And yes, it’s a tough one. 

[rupert3]

It's kinda like being in the army where one guy screws up and everybody pays.  In this case it is a known place where things happen all the time so the officer/officers are going on reasonable precaution and will detain anybody they think are breaking the law.

[WOSdrummer99]

1 hour ago, tvc184 said:

Unlawfully….. by who?

I think the officer was right and lawfully detained the suspects. Mainly due to the area and the tip.

[rupert3]

If they were not doing anything wrong, why did they scatter?

 

[tvc184]

2 hours ago, rupert3 said:

If they were not doing anything wrong, why did they scatter?

 

 

3 hours ago, WOSdrummer99 said:

I think the officer was right and lawfully detained the suspects. Mainly due to the area and the tip.

Interesting.

For a matter of law in these discussions, I might have mentioned it before but there are two supreme courts in Texas. The Texas Supreme Court hears civil cases and the Texas Court of Criminal Appeals hears criminal cases. So if you ever read something about a crime in Texas and it says Court of Criminal Appeals (CCA), don’t think why don’t they appeal this to the Supreme Court. For crimes in Texas, it is the Supreme Court.

*****

Part of the problem with the questions I pose, if you knew all the applicable case laws, statutes and circumstances, you could probably decipher the correct answer.

 Everything I gave was from an actual case in Texas in Harris County called Gurrola v. State. The CCA ruled in favor of the defendant and ruled it an unlawful detention by the Harris County deputy.

Here is the main but not only problem. The justification for a reasonable suspicion detention is facts and circumstances known to the officer, including using his experience, that would lead a reasonable person to believe a crime might have been committed or was in the process of being committed and the person detained is linked to that crime. To link the person detained to a crime, it has to be information about a specific crime. It can’t be simply, he looked suspicious.

So what crime was the officer possibly witnessing? The CCA said that the deputy could not link a crime to the behavior.   Arguing is not against the law. I think the court was saying, we understand the deputy wanted to stop the people and investigate but investigate what?

Playing what if… could the deputy have witnessed a valid situation to justify a detention? Certainly but if he did, he didn’t justify it in his arrest affidavit. So what if he heard the argument and a threat was made. A threat in a public place is Disorderly Conduct or a threat could be an assault, assuming a victim wishes to pursue charges. Are maybe they were making such a loud noise it was causing a breach of the peace in the apartment complex. Usually we think of that at night when it’s disturbing people.

No matter, if the deputy saw any of that, he did not document it. He cannot come back later and simply say, I forgot to put that.

Another issue was the anonymous tip from the guy walking the dog. Anonymous tips are held to be unreliable unless officers with independent observation or investigation can corroborate the tip. In this case, I don’t think it really mattered but it is possible. If the guy’s tip was, here is my name, address and phone number, and I just witnessed a guy telling another that he had a gun on him and would shoot him. THAT would no longer be anonymous and reasonable suspicion to force a detention. Again, if that happened, the deputy did not document it.

So in this case, even though something may have possibly risen to the level of suspicion of a particular crime, the deputy did not document it and the evidence was thrown out.

About 25 long years ago two of my very best friends today from the police department, arrested a guy with cocaine that he was selling. While they were logging the cocaine into evidence, they ran down the situation to me, explaining how they caught the guy including a short foot chase. It was actually a pretty good bit of police work.

I later read their probable cause affidavit and went…. oops. I told them before they get the affidavit notarized and turned in with their paperwork, they need med to put in more information. The story they told me was great but it was not what they put on paper (4 corner rule). They disagreed and thought nothing of it. A week later, one of the officers came to me rather dejected and said the district attorney threw out their arrest due to an unlawful detention. The problem was that what they did was not unlawful. Their problem was not documenting what they told me.

The guy who was arrested, probably was telling his buddies, the police illegally detained me and the charges were dropped. No, what the officer did was completely legal… but they did not document their actions.

So, we don’t know what the deputy in Harris County actually saw, but what he documented on paper did not justify a lawful detention and the CCA removed the evidence.

 

 

 

[rupert3]

ASSAULT FAM/HOUSE MEM IMPEDE BREATH/CIRCULAT.

What does this mean in laymen terms.  I see it all the time on Polk County arrest report

[SmashMouth]

2 hours ago, rupert3 said:

ASSAULT FAM/HOUSE MEM IMPEDE BREATH/CIRCULAT.

What does this mean in laymen terms.  I see it all the time on Polk County arrest report

Somebody got they azz choked.

"Under Texas assault law, if a person assaults someone that is a family member, dating partner, or a household member the assault charge is a Third Degree Felony if the person accused of assault is said to have intentionally, knowingly, or recklessly impeded the normal breathing or circulation of the blood by applying pressure to a person's throat or neck or by blocking the person's nose or mouth. If the person accused has a prior conviction or probation for domestic violence, then the new Impeding Breathing case can be enhanced to a Second Degree Felony."

-Luster Law Firm Webpage

[tvc184]

7 hours ago, rupert3 said:

ASSAULT FAM/HOUSE MEM IMPEDE BREATH/CIRCULAT.

What does this mean in laymen terms.  I see it all the time on Polk County arrest report

Great question.

It has to do with the elements and degrees of a particular offense/crime.

Many crimes have more than one way to commit the crime. An easy example is from our recent discussion in the Jasper shootings. A person cannot simply be charged with Aggravated Assault. Agg Assault is to commit Assault (misdemeanor with bodily injury) AND…… EITHER… used a “deadly weapon/dw” OR caused “serious bodily injury/sbi” (both are defined in the law). So a person can be indicted as:   
Agg Assault-SBI or
Agg Assault— DW

So to your specific question, assault is usually a misdemeanor. It is causing any injury including merely pain. It carries up to a year in jail as a class A misdemeanor. But in the exact same section we have the choking law (impeding breath or blood). It is not a different law and is under the exact section as a misdemeanor assault like if you got mad and slapped (or even choked) your neighbor.

When you read part of the section where it lists the punishments, it states:

Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:   
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code (these sections are relationships under the Texas domestic violence laws), if (B ) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth;

You can see that the assault is a class A misdemeanor EXCEPT choking/impeding…

So if you get mad and choke your neighbor, but don’t cause serious injury, it’s a misdemeanor. If you get mad and choke your ex-girlfriend, your roommate, etc., it carries up to a 10 year prison sentence.

So what you asked about is just assault BUT…

It is committed against someone with whom you’ve had a relationship AND…

It’s not just causing injury but is recklessly cutting off the breath or blood flow.

 

[tvc184]

Under the same punishment reasons for a third-degree felony, it shows if the assault is against a public servant. Again, if you slap your neighbor, it’s a misdemeanor but if you slap a cop, it’s up to 10 years in prison.

[tvc184]

This situation came up a few months ago when the police arrested the Texas Longhorns basketball coach, Chris Beard for Assault/Impeding.

The situation was really beaten up in another sports forum on how the coach was going to prison and blah blah blah.

My first comments were, simply by reading the new stories, as released by the police and certainly not knowing exactly what happened, the charges would probably be dropped. It was likely a lawful arrest but could also likely be self defense. I also commented that had this been a regular citizen, the case would probably have been dropped within a week. Of course, being big news, it was drug out for several weeks.

The coach claims that he is living girlfriend attacked him and he shoved her away. That was where I got into speculation….

If you reach up and shove someone away who’s attacking you and your open hand goes against the throat, it might momentarily gag the person or restrict breath. By law the choking statute says it is a crime, even if it is recklessly committed.

So was he reckless? Probably. 

But remember that we have the right of self-defense even up to deadly force if needed. The right of self defense means that what you did is a crime, but it is justified under certain circumstances. 

If a person is attacking you, do you have the right to shove the person away? I would say yes.

Soon after the arrest, the girlfriend made a public statement that she told the police that she did not wish to file charges and that she was the cause of it, attacking him. So now you have basically an admission by the woman that she came at him.

Is he allowed to use the force necessary, in this case, just shoving her away, to defend himself in what would otherwise be a crime? Yes, he might’ve recklessly impeded her breath which would be a crime however, does he have the right of self defense ? I would again say yes.

I have mentioned this before, but under Texas law if you bring up evidence of self-defense, which could be testimony, you do not have to prove that self defense was reasonable. The DA has approved for the jury beyond a reasonable doubt that it was not.

This is a classic case of he said/she said, however in this case they both apparently agree. 

So the police in fear of covering up for a celebrity (in my opinion), make the arrest because she might have said yes, he briefly choked me. Okay, that is probable cause.

After several weeks, the district attorney, released a statement, saying, we are dropping charges 

This was the statement from the DA:
“After a careful and thorough review of the evidence, recent public statements, and considering Ms. Trew's wishes, our office has determined that the felony offense cannot be proven beyond a reasonable doubt," the Travis County District Attorney's Office said in a statement.

Wow, after several weeks the DA decided that it could not be proven. 😂😂😂

 

[rupert3]

How do bonds work and who is stupid enough to post whatever?   ie:  the 5 mil bond on the Cleveland killings

[tvc184]

4 hours ago, rupert3 said:

How do bonds work and who is stupid enough to post whatever?   ie:  the 5 mil bond on the Cleveland killings

I realize most people know this but to refresh our memories…

Technically it is not a bond, it is bail. For practicality purposes, most people use the words interchangeably. 

A judge sets bail as a promise to appear in court. If you post bail, if charges are dropped or if you show up at trial, you get your money back. It’s that simple. 

Most people can’t afford bail on felonies however. If a person is arrested and gets a $10,000 bail assessed by a judge, most people can’t pull up $10,000 cash or perhaps they have it but don’t want to use $10,000 in a savings account and not have access to it for 2-3 years awaiting trial.

Instead they can go to a bondsman. A bondsman acts as a bank and loans the money. I think the going rate is 10% and as high as 15% but I am not sure.

If a person has a $10,000 bail, a bondsman will likely get that person out of jail for $1,000. Once you pay the bondsman in cash, your money is gone. It is like taking a loan out at a bank but there is no early payoff benefit. If you buy a car for $30,000 at 5% interest for five years. If you pay it off in one year instead of five, you can save on not having to pay 5% for another four years. With a bondsman, the moment you walk out the door that is yet. If the DA drops the case the next morning, you don’t get you $1,000 back.

The bondsman doesn’t run down to the jail at 3AM to hand $10,000 over to a corrections officer. He is a “surety” or is good for it if the arrested person doesn’t show back up for court. It’s kind of like a co-signer. 

A surety bond is basically Insuance but for a single specific purpose/incident/project. Most surety bonds are probably contracts like if a company hires a construction firm. The company will likely demand that the construction firm purchase a surety bond. If the construction company defaults on the project, the surety bond company has to pay for the damages, the completion of the project, etc.

A surety bond for a person getting out of jail works the same way. If the person shows back up in court, no harm no foul and the bondsman got to keep his 10% profit. If a person does not show up, the bondsman as the surety can lose the $10,000 or maybe $200,000 or $1,000,000 or in this Cleveland case, $5,000,000.

That is where a Dog The Bounty Hunter comes in. A bondsman who is about to lose $200,000, might pay a 10% finders fee or $20,000 to bring the suspect in.

So when a person is arrested, a judge will set bail at his discretion on what he thinks is a fair amount to get the person back to court if he is released. The amount of bail can be appealed as excessive.

Since perhaps most people cannot post the amount of bail, they go to an insurance company who will guarantee the court that the accused will show up for trial or he loses the bail amount. That insurance company is a surety bond company or also commonly known as a bondsman.

Who would post a $5,000,000 for a mass murder? Hopefully no one.

I’m sure if a billionaire’s son was arrested, he would gladly post the $5 million or even pay a bondsman $500,000 to get him out. For the rest of us……

Clear as mud? 

 

 

[tvc184]

I have been saying from the first report of this case, it is clearly Capital Murder. There are several aggravating circumstances that change a Murder to a Capital Murder. This guy committed three of those circumstances. 
1. A victim under 10 years old   
2. More than one victim   
3. During a Burglary

If any one can be proven, he is death penalty eligible. 

I have no clue why this guy has not been accused already with Capital Murder. Obviously, the law requires a grand jury indictment later but probable cause allows the holding of the person. clearly there is probable cause for Capital Murder. With a capital murder charge, bail can be denied.

I am breaking this up because of the news articles like the one below. I know they are just reporting but are they really asking questions?

This is a quote from that article:

If officials have aggravating factors to support Francisco Oropeza's charges, they will be upgraded. San Jacinto County District Attorney Todd Dillon has 90 days to present the case.

“IF” officials have aggravating factors???

Why not ask an official if they believe there are aggravating factors?

Of course they throw in the not involved defense attorney who concluded, this guy is going to likely get 5 death sentences. I will concur with the attorney’s opinion.

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