[Fletchette]

In several of the threads here on the High Road the topic of "enhancer charges" has come up. In short, enhancers are additional charges the police can use when prosecuting a suspect. For example, a defendant accused of “burglary” might also be charged with “possession of burglary equipment”; i.e. carrying a screwdriver.

Defenders of this legal strategy almost always cite the example of Al Capone, who was convicted of tax evasion instead of murder or other violent crimes because the prosecution lacked the evidence for these crimes.

Does the end justify the means?

It is almost certain that Al Capone was the mastermind behind many heinous crimes. But by convicting him in the way that they did, the government has established a very dangerous precedent. Eighty years later, the government has created so many ''enhancer" crimes that the majority of the population is guilty of breaking some type of law. The government now has the power to convict virtually anyone of a crime by first accusing them of a heinous crime (without evidence) and getting a conviction on any number of "enhancers".

Many people have been charged with murder, even if they were clearly acting in self-defense. The defendant is often found "not guilty" of the murder charge only to receive a felony conviction for some weapons violation- the enhancer. In addition to convicting otherwise innocent citizens of felonies and creating a dictatorial government that selectively targets dissidents, the use of enhancers has another bad side effect. People start associating completely non-criminal actions with crimes.

I have read many a news story that reads something like this: ''Police raided a suspected drug lab yesterday. No drugs were found but several guns were seized." Very few people question these actions. Many communities have gone even further, outlawing "gang paraphernalia" such as clothing with certain sport teams' logos.

The result is that Americans now are forced to justify their every action. ''I need this <blank> because..." Whether the object in question is a gun, Drano, ibuprofen, a plant or just information, people feel compelled to seek the government's permission for everything. The end result is that no one can do anything without a permit, and simple pursuit of happiness does not constitute a need.

Would it not have been better to simply charge Al Capone with murder?

[DontBurnMyFlag]

things ive seen or heard about were similar. For instance, a kid was pulled over for speeding. Got loud with the cop, was cocky and an all around bastard. The cop checked his car and saw something hanging from his rearview mirror, "Obstruction of view" charge. Kids not wearing his seatbelt, neither are his passengers...Another charge. Probably got him on some other stuff too. Its just a way of a cop getting the message across. Sometimes the police can cross the line if they are jerks. Like for instance I was doing some urban exploration (abandoned mental hospital) and got caught. They said they could charge us with trespassing, possession of weapons "crowbar", and some other stuff. When they found out what we were doing, the fact that we had no drugs and none of us had records, they let us out with a warning.

[DMF]

Fellas if you're going to whine about the criminal justice system could you please try to use the standard whiner terminology?

Flechette, "enhanced penalties" does not typically refer to charging someone with multiple crimes, but rather when the legislation includes stiffer penalties if certain elements of the crime are present. Same crime is charged, but if the criminal does certain things the possible punishment increases.

However, the situation you so crudely, and inaccurately describe, is what whiners like to call "stacking" charges. For some screwed up reason some people seem to think if the government is investigating one crime, but also find evidence of several others they should ignore those other crimes.

So let me ask you, if your local HIDTA task force executes a search warrant on Joe Baggodonuts residence based on PC to believe Joe has 2 pounds of meth in his house, what should they do when they spot several counterfeit Social Security cards on the laser printer, bank documents in the names of other people, and several piles of stolen mail, all of which clearly show Joe is engaged in identity theft, mail theft, and bank/credit card fraud? Should the cops and prosecutors ignore that evidence of additional crimes, and only worry about the drugs? Does it change your opinion if it's your SSN on one of the cards, and there are 3 credit accounts in your name, which Joe will default on ruining your credit?

So if IRS-CI seizes documents and computers related to an investigation of tax evasion and money laundering, but happen to come across images of kiddie porn, should they ignore that and only worry about the original crime they were investigating? Does it change your opinion if it's your kid in some of the pictures?

Here's the deal if you commit mulitple crimes, you can, and sometimes will get charged with some, all or none. I have no sympathy for the guy who is getting investigated for kiddie porn, and also gets pinched on a drug charge. I have no sympathy for the drug dealer who also gets popped for identity theft, and bank fraud. If you commit multiple crimes, be prepared to answer for multiple crimes. Don't want to face charges on multiple counts of mulitiple crimes? Easy don't break the law.

Also, keep in mind each and every count of an indictment must be proven beyond a reasonable doubt. So each charge is more work for the cops, and more work for the prosecutors.

There was no "enhancing" of anything related to Al Capone. He committed the crime of Income Tax Evasion, he was charged, tried, and convicted at trial. The fact that no one made a case against Al Capone on other crimes does not change the fact he did commit Tax Evasion.

[El Tejon]

:confused:

Fletch, are you talking about sentencing enhancements, like Habitual Offender, Habitual Substance Offender, Repeat Sexual Offender, Career Criminal, inter alia etc.

"Possession of Burglary Tools" is merely a companion or, depending on state law (in state's that have this statute still) a lesser included offense of burglary. Sort of like Battery and Confinement, the two just go together like peanut butter and jelly or El Tejon and sushi. It is not under any definition an "enhancer."

The police merely arrest people. The proseuctor decides what to prosecute and if to do so. The feds prosecuted Capone for taxes because that is what they could prove.

[BryanP]

I'm sitting on a grand jury this week. It's my first time and it's an eye-opener. It's amazing how many charges they can stack on someone for one count. PersonA steals PersonB's and signs B's name to a bunch of checks. That's one count of "Theft, Greater Than $10,000 (Felony)" plus 45 counts of felony Forgery (one per check). Someone gets pulled over for DUI. In addition to the DUI charge they throw a second charge, "Operating a vehicle with a BAC > .08." The DA explained to us that while DUI may be tricky to prove, they can't wiggle out of the second charge. The test was either > .08 or it wasn't.

[hammer4nc]

Prosecution of Al Capone for tax violations energized the IRS beyond all previous boundaries. That's the real legacy that lives on today. DMF, who routinely abrades any citizen (aka whining scumbag) with the temerity to even question the motives of LE, is a pussycat compared to the attitudes/practices of today's IRS. Assumption of innocence until proven guilty; constitutional protection against self-incrimination...these and other legal foundations do not apply in tax court. Confiscation of property without due process; everyday occurence.

Hard to believe it doesn't get more publicity than it does. The masses have been cowed into submision? The good !! news is most IRS problems today can be cured with money. IRS agents are promoted based on their "take". Hard dollars. Google Rick Hendrick+IRS, for a good example. Anyone willing to argue for the high integrity/moral purposes of today's IRS?? That's a good one! I'm betting that even myrmidon DMF won't try that one (aside from pedantic putdowns) with a straight face! :)

[El Tejon]

BryanP, that assumes the prosecutor's magic box or guiltometer is calibrated, is accurate, the magic testing procedure was done correctly or even applies to the Defendant. ;)

[BryanP]

El Tejon,

The preferred method here is to take them to the local hospital and have blood drawn. That should be more accurate than a breathalyzer, no? Granted, I'm not as familiar with the justice system as you are. I've never been arrested so this is my first real experience with this sort of thing.

[El Tejon]

Serum blood or whole blood? Many hospital tests are for diagnostic, not analytical, reasons.

[MikeB]

So let me ask you, if your local HIDTA task force executes a search warrant on Joe Baggodonuts residence based on PC to believe Joe has 2 pounds of meth in his house, what should they do when they spot several counterfeit Social Security cards on the laser printer, bank documents in the names of other people, and several piles of stolen mail, all of which clearly show Joe is engaged in identity theft, mail theft, and bank/credit card fraud? Should the cops and prosecutors ignore that evidence of additional crimes, and only worry about the drugs? Does it change your opinion if it's your SSN on one of the cards, and there are 3 credit accounts in your name, which Joe will default on ruining your credit?

Yes they should ignore all that other evidence. After all the 4th Amendment does state that "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.". If the search warrant didn't list those fake SS cards and whatnot on the warrant as required by the 4th then those items should be inadmissable in court. I would also want an explanation from the LEO's if why I was judge; as to why there "PC" info involved something that didn't exist in the residence. Perhaps they should have done more police work and determined that the residence had nothing to do with drugs, but instead with fraud and actually get a search warrant based on that.

This attitude of get a warrant for something(anything that sounds good) usually based on "anonymous" information and then going on a fishing expedition has been one of the main ways our rights have been eroded over the years.

[20cows]

I think the point Fletchette was trying to make is that these laws can be applied more arbitrarily. Like, "We couldn't get him for the original charge, but at least we got something. He's a bad guy y'know, (or we wouldn't be after 'im)."

It's similar to the term "traveler" in Texas. The term has never been legally defined and gives law enforcement great latitude in how it is used.

It makes the attitude test REAL important, because you could be at the mercy of someone who's already having a bad day and then YOU came along.

[Jeff White]

MikeB said;
This attitude of get a warrant for something(anything that sounds good) usually based on "anonymous" information and then going on a fishing expedition has been one of the main ways our rights have been eroded over the years.

And just how many warrant applications have you submitted? Ever had to take your anonymous source to personally speak to the judge? I have (a juvenile who had been in a house and observed the presence of stolen property, we wanted to keep her out of court especially for her own safety at school).

What are the rules in your jurisdiction about the use of confidential informants? How much good information do they have to supply before they are considered reliable? Are the officers required to search the CIs before they make a controlled buy to ensure that they have nothing on their person to plant inside and set up someone? Are these searches videotaped? Do the officers controlling the CI have to keep him.her in view then until they actually enter the targeted residence?

I guess they never close down and secure a scene while they go back and get additional warrants when evidence of other crimes are discovered that are outside of the scope of the original warrant where you live?

If they don't do those things, what kind of defense attorneys do have there? Seems like if they had any kind of defense attorney, no one would ever be convicted because all the evidence would be suppressed.

Jeff

[Fletchette]

Fellas if you're going to whine about the criminal justice system could you please try to use the standard whiner terminology?

Sorry. I misplaced my Whiner's Terminology Handbook. Thank you for your expertise and wide reaching knowledge. Simple serfs like myself cannot comprehend the complexities of the Justice System.

...ahem,

Whatever you want to call it, I think it is wrong to add redundant charges to a defendant who is suspected of only one crime.

To put it another way, why should someone who has strangled someone to death get a lighter sentence than someone who shoots someone to death? Really, why charge this person for carrying a gun, using a particular type of ammunition, the magazine size of the gun, the color of the gun...etc., when the real crime is murder?

[BigG]

I think Fletchette's point is well taken if he means that having a bunch of miscellaneous statutes can make anyone a criminal. Ayn Rand warned about exactly that thing. It's a means of CONTROL.

I don't particularly have a problem with socking it to a scumbag like Al Capone but the ordinary taxpaying citizen should not be looked at as a source of revenue for seatbelt violations, random roadblocks, etc. Sorry if that chaps your hide, you lawpersons. ;)

[Jeff White]

Flechette,
I'm not sure what you're complaining about. Most of the laws you are talking about are add-ons. They are simply our politicians way of responding to the peoples demand that they do something about crime.

Here are some from the Illinois Complied Statutes:

Possession of Burglary Tools:
http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+19&ActID=1876&ChapAct=720%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=53&ChapterName=CRIMINAL+OFFENSES&SectionID=60731&SeqStart=50200&SeqEnd=51700&ActName=Criminal+Code+of+1961%2E
(720 ILCS 5/19‑2) (from Ch. 38, par. 19‑2)
Sec. 19‑2. Possession of burglary tools.
(a) A person commits the offense of possession of burglary tools when he possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft.
(b) Sentence.
Possession of burglary tools in violation of this Section is a Class 4 felony.
(Source: P. A. 78‑255.)

Note the part about intent. The states attorney can't make a felon out of you for possessing a screwdriver, unless he can prove you intended to use it in a burglary. So if you're an average THR member and have a large screwdriver in the tool kit in your car, you're just fine. But if you have previous arrests and convictions for burglary, and you're found lurking about a warehouse at 2:30 am with said long screwdriver shoved down your pants and matching prymarks on the door jamb, guess what?

Let's look at Criminal Fortification of a Building:

(720 ILCS 5/19‑5) (from Ch. 38, par. 19‑5)
Sec. 19‑5. Criminal fortification of a residence or building. (a) A person commits the offense of criminal fortification of a residence or building when, with the intent to prevent the lawful entry of a law enforcement officer or another, he maintains a residence or building in a fortified condition, knowing that such residence or building is used for the manufacture, storage, delivery, or trafficking of cannabis or controlled substances as defined in the Cannabis Control Act or Illinois Controlled Substances Act.
(b) "Fortified condition" means preventing or impeding entry through the use of steel doors, wooden planking, crossbars, alarm systems, dogs, or other similar means.
(c) Sentence. Criminal fortification of a residence or building is a Class 3 felony.
(Source: P.A. 86‑760.)

Note that in order to be charged with this felony, you have to know that the building or residence is being used to manufacture, store, deliver or traffic cannibis or drugs. So once again, you don't have to worry about undercover agents following you home from Lowes or Home Depot with your new steel clad replacement door.

Or are you more worried about this:
http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+12&ActID=1876&ChapAct=720%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=53&ChapterName=CRIMINAL+OFFENSES&SectionID=60636&SeqStart=24100&SeqEnd=29400&ActName=Criminal+Code+of+1961%2E
(720 ILCS 5/12‑4) (from Ch. 38, par. 12‑4)
Sec. 12‑4. Aggravated Battery.
(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.
(b) In committing a battery, a person commits aggravated battery if he or she:
(1) Uses a deadly weapon other than by the discharge of a firearm;

(2) Is hooded, robed or masked, in such manner as to

conceal his identity;
(3) Knows the individual harmed to be a teacher or

other person employed in any school and such teacher or other employee is upon the grounds of a school or grounds adjacent thereto, or is in any part of a building used for school purposes;
(4) Knows the individual harmed to be a supervisor,

director, instructor or other person employed in any park district and such supervisor, director, instructor or other employee is upon the grounds of the park or grounds adjacent thereto, or is in any part of a building used for park purposes;
(5) Knows the individual harmed to be a caseworker,

investigator, or other person employed by the State Department of Public Aid, a County Department of Public Aid, or the Department of Human Services (acting as successor to the Illinois Department of Public Aid under the Department of Human Services Act) and such caseworker, investigator, or other person is upon the grounds of a public aid office or grounds adjacent thereto, or is in any part of a building used for public aid purposes, or upon the grounds of a home of a public aid applicant, recipient, or any other person being interviewed or investigated in the employee's discharge of his duties, or on grounds adjacent thereto, or is in any part of a building in which the applicant, recipient, or other such person resides or is located;
(6) Knows the individual harmed to be a peace

officer, a community policing volunteer, a correctional institution employee, an employee of the Department of Human Services supervising or controlling sexually dangerous persons or sexually violent persons, or a fireman while such officer, volunteer, employee or fireman is engaged in the execution of any official duties including arrest or attempted arrest, or to prevent the officer, volunteer, employee or fireman from performing official duties, or in retaliation for the officer, volunteer, employee or fireman performing official duties, and the battery is committed other than by the discharge of a firearm;
(7) Knows the individual harmed to be an emergency

medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, other medical assistance, first aid personnel, or hospital personnel engaged in the performance of any of his or her official duties, or to prevent the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, other medical assistance, first aid personnel, or hospital personnel from performing official duties, or in retaliation for performing official duties;
(8) Is, or the person battered is, on or about a

public way, public property or public place of accommodation or amusement;
(9) Knows the individual harmed to be the driver,

operator, employee or passenger of any transportation facility or system engaged in the business of transportation of the public for hire and the individual assaulted is then performing in such capacity or then using such public transportation as a passenger or using any area of any description designated by the transportation facility or system as a vehicle boarding, departure, or transfer location;
(10) Knowingly and without legal justification and

by any means causes bodily harm to an individual of 60 years of age or older;
(11) Knows the individual harmed is pregnant;
(12) Knows the individual harmed to be a judge whom

the person intended to harm as a result of the judge's performance of his or her official duties as a judge;
(13) Knows the individual harmed to be an employee

of the Illinois Department of Children and Family Services engaged in the performance of his authorized duties as such employee;
(14) Knows the individual harmed to be a person who

is physically handicapped;
(15) Knowingly and without legal justification and

by any means causes bodily harm to a merchant who detains the person for an alleged commission of retail theft under Section 16A‑5 of this Code. In this item (15), "merchant" has the meaning ascribed to it in Section 16A‑2.4 of this Code;
(16) Is, or the person battered is, in any building

or other structure used to provide shelter or other services to victims or to the dependent children of victims of domestic violence pursuant to the Illinois Domestic Violence Act of 1986 or the Domestic Violence Shelters Act, or the person battered is within 500 feet of such a building or other structure while going to or from such a building or other structure. "Domestic violence" has the meaning ascribed to it in Section 103 of the Illinois Domestic Violence Act of 1986. "Building or other structure used to provide shelter" has the meaning ascribed to "shelter" in Section 1 of the Domestic Violence Shelters Act; or
(17) Knows the individual harmed to be an employee

of a police or sheriff's department engaged in the performance of his or her official duties as such employee.
For the purpose of paragraph (14) of subsection (b) of this Section, a physically handicapped person is a person who suffers from a permanent and disabling physical characteristic, resulting from disease, injury, functional disorder or congenital condition.
(c) A person who administers to an individual or causes him to take, without his consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance commits aggravated battery.
(d) A person who knowingly gives to another person any food that contains any substance or object that is intended to cause physical injury if eaten, commits aggravated battery.
(d‑3) A person commits aggravated battery when he or she knowingly and without lawful justification shines or flashes a laser gunsight or other laser device that is attached or affixed to a firearm, or used in concert with a firearm, so that the laser beam strikes upon or against the person of another.
(d‑5) An inmate of a penal institution or a sexually dangerous person or a sexually violent person in the custody of the Department of Human Services who causes or attempts to cause a correctional employee of the penal institution or an employee of the Department of Human Services to come into contact with blood, seminal fluid, urine, or feces, by throwing, tossing, or expelling that fluid or material commits aggravated battery. For purposes of this subsection (d‑5), "correctional employee" means a person who is employed by a penal institution.
(e) Sentence.
Aggravated battery is a Class 3 felony, except a violation of subsection (a) is a Class 2 felony when the person knows the individual harmed to be a peace officer engaged in the execution of any of his or her official duties, or the battery is to prevent the officer from performing his or her official duties, or in retaliation for the officer performing his or her official duties.
(Source: P.A. 92‑16, eff. 6‑28‑01; 92‑516, eff. 1‑1‑02; 92‑841, eff. 8‑22‑02; 92‑865, eff. 1‑3‑03; 93‑83, eff. 7‑2‑03.)

Where the Genral Assembly has created the seperate charge of Aggravated Battery with a Firearm:

(720 ILCS 5/12‑4.2) (from Ch. 38, par. 12‑4.2)
Sec. 12‑4.2. Aggravated Battery with a firearm.
(a) A person commits aggravated battery with a firearm when he, in committing a battery, knowingly or intentionally by means of the discharging of a firearm (1) causes any injury to another person, or (2) causes any injury to a person he knows to be a peace officer, a community policing volunteer, a correctional institution employee or a fireman while the officer, volunteer, employee or fireman is engaged in the execution of any of his official duties, or to prevent the officer, volunteer, employee or fireman from performing his official duties, or in retaliation for the officer, volunteer, employee or fireman performing his official duties, or (3) causes any injury to a person he knows to be an emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel, employed by a municipality or other governmental unit, while the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel is engaged in the execution of any of his official duties, or to prevent the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel from performing his official duties, or in retaliation for the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel performing his official duties, or (4) causes any injury to a person he or she knows to be a teacher or other person employed in a school and the teacher or other employee is upon grounds of a school or grounds adjacent to a school, or is in any part of a building used for school purposes.
(b) A violation of subsection (a)(1) of this Section is a Class X felony. A violation of subsection (a)(2), subsection (a)(3), or subsection (a)(4) of this Section is a Class X felony for which the sentence shall be a term of imprisonment of no less than 15 years and no more than 60 years.
(c) For purposes of this Section, "firearm" is defined as in "An Act relating to the acquisition, possession and transfer of firearms and firearm ammunition, to provide a penalty for the violation thereof and to make an appropriation in connection therewith", approved August 1, 1967, as amended.
(Source: P.A. 90‑651, eff. 1‑1‑99; 91‑434, eff. 1‑1‑00; 91‑696, eff. 4‑13‑00.)

(720 ILCS 5/12‑4.2‑5)
Sec. 12‑4.2‑5. Aggravated battery with a machine gun or a firearm equipped with any device or attachment designed or used for silencing the report of a firearm.
(a) A person commits aggravated battery with a machine gun or a firearm equipped with a device designed or used for silencing the report of a firearm when he or she, in committing a battery, knowingly or intentionally by means of the discharging of a machine gun or a firearm equipped with a device designed or used for silencing the report of a firearm (1) causes any injury to another person, or (2) causes any injury to a person he or she knows to be a peace officer, a person summoned by a peace officer, a correctional institution employee or a fireman while the officer, employee or fireman is engaged in the execution of any of his or her official duties, or to prevent the officer, employee or fireman from performing his or her official duties, or in retaliation for the officer, employee or fireman performing his or her official duties, or (3) causes any injury to a person he or she knows to be an emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel, employed by a municipality or other governmental unit, while the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel is engaged in the execution of any of his or her official duties, or to prevent the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel from performing his or her official duties, or in retaliation for the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, or other medical assistance or first aid personnel performing his or her official duties.
(b) A violation of subsection (a) (1) of this Section is a Class X felony for which the person shall be sentenced to a term of imprisonment of no less than 12 years and no more than 45 years. A violation of subsection (a) (2) or subsection (a) (3) of this Section is a Class X felony for which the sentence shall be a term of imprisonment of no less than 20 years and no more than 60 years.
(c) For purposes of this Section, "firearm" is defined as in the Firearm Owners Identification Card Act.
(d) For purposes of this Section, "machine gun" has the meaning ascribed to it in clause (i) of paragraph (7) of subsection (a) of Section 24‑1 of this Code.
(Source: P.A. 91‑121, eff. 7‑15‑99.)

I thought that we wanted actions to be illegal; not objects?

Would you do away with Aggravated Kidnapping because one of the factors that causes it to be Aggravated and carry higher penalties is the use of a firearm?

(720 ILCS 5/10‑2) (from Ch. 38, par. 10‑2)
Sec. 10‑2. Aggravated kidnaping.
(a) A kidnaper within the definition of paragraph (a) of Section 10‑1 is guilty of the offense of aggravated kidnaping when he:
(1) Kidnaps for the purpose of obtaining ransom from the person kidnaped or from any other person, or
(2) Takes as his victim a child under the age of 13 years, or a severely or profoundly mentally retarded person, or
(3) Inflicts great bodily harm, other than by the discharge of a firearm, or commits another felony upon his victim, or
(4) Wears a hood, robe or mask or conceals his identity, or
(5) Commits the offense of kidnaping while armed with a dangerous weapon, other than a firearm, as defined in Section 33A‑1 of the "Criminal Code of 1961", or
(6) Commits the offense of kidnaping while armed with a firearm, or
(7) During the commission of the offense of kidnaping, personally discharged a firearm, or
(8) During the commission of the offense of kidnaping, personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person.
As used in this Section, "ransom" includes money, benefit or other valuable thing or concession.
(b) Sentence. Aggravated kidnaping in violation of paragraph (1), (2), (3), (4), or (5) of subsection (a) is a Class X felony. A violation of subsection (a)(6) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(7) is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(8) is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.
A person who is convicted of a second or subsequent offense of aggravated kidnaping shall be sentenced to a term of natural life imprisonment; provided, however, that a sentence of natural life imprisonment shall not be imposed under this Section unless the second or subsequent offense was committed after conviction on the first offense.
(Source: P.A. 91‑404, eff. 1‑1‑00; 92‑434, eff. 1‑1‑02.)

In many cases we, the pro RKBA community lobbied for these laws to enhance penalties for the criminal misuse of firearms. Were we wrong?

Jeff

[MikeB]

And just how many warrant applications have you submitted?

None. Not that is has any bearing on the discussion and the example given earlier. In my opinion if would be clearly unconstitutional to charge people with crimes based upon evidence of crimes not listed in the original search warrant. Note I don't believe you should be able to get a second warrant based on such evidence either. To me the 4th Amendment is clear in that a search warrant is required to list the items and location of items that are to be searched for. Equivocating the meaning of this 4th Amendment is again wrong in my opinion and one of the reasons for the loss of freedoms we've seen over the last several decades.

I have major problems with the use of CI's as well.

You of course are free to disagree.

[Deavis]

DMF, way to turn what could have been a great reply into a useless and insulting daitribe. Go THR! You never fail to keep me entertained with your whining. Do you deal with the public everyday in your job?

That said, I think he brings up a really good point. If the police serve a warrant for drugs and find out you are, say, counterfiting IDs, shouldn't they be allowed to bring that evidence as well? Of course, DMF uses emotionally charged situations to get you to feel stupid for disagreeing. Who wouldn't want to take a pervert with kiddie porn off the streets?

I would bet that most people here have no problem with tacking on charges for people commiting severe crimes. I think the main qualifier is that the crime will directly hurt someone. If a guy is making meth and has some illegal weapons, then they say ,"Add on those years baby!" Why not, he obviously wasn't holding those weapons to go target shooting, right?

I suspect that what most here disagree with is getting pulled over for a being in the wrong type of car and getting a ticket for excessive acceleration, failure to yield, changing lanes at an unsafe distance, or any number of subjective charges that all depend on your attitude towards the officer. I would guarantee that everyone here, including DMF, has and does violate many subjective laws each and everyday. When people get mad is when subjective laws are used against them for what they believe is "no good reason." That is a double-edged sword, right?

We all want the cop who pulls us over after we've done a rolling burnout or wheelie to say, "Hey man, listen, that looked good but you really need to slow it down a bit. This isn't a good area for doing that." On the other hand we want the same cop to pull that other crazy guy over who was riding one-wheel down the highway and throw the book at him. You can't have it both ways unless you are willing to remove those type of laws from the books and live like that. You can't get mad that an officer has no grounds to write a ticket to a teenager burning out at a stop sign in front of your house everyday if you don't give him a law to do it with. A law that could be used against you by a less than moral police officer with an authority complex.

However, I think that flechette's original post was more along the lines of, "If he is a murder, then shouldn't we be convicting him of that?" In the case of Capone, law enforcement fished around (note I am not denoting legality of their investigation techniques for fear of the semantics police coming out in force), and found enough evidence to nail him on a completely unrelated charge. A charge which some will argue violates your right not to incriminate yourself, i.e. you have to report illegal income to the IRS. That is not in the scope of my post.

I could be wrong but I think many people here view enhancers or whiny add-ons as ways to screw some honest joe caught up in a legal morass. For most people here, that would probably be the way it happens, but if you are careful it should not happen to you. However, are you willing to hamstring your prosecutors by not letting them take "bad guys" off the street with those extra charges? What if they could only tack-on for felonies, would that change your mind?

I, personally, think nailing Capone for tax evasion was both brilliant and cowardly. We should give our prosecutors as many weapons against criminals as possible as long as they cannot be used against honest citizens who get in a bind somehow. I think that LawDog addressed the safeguards really well and as long as we make sure that prosecutors must prove criminal intent, then we are balancing the two sides as best we can.

[DMF]

Yes they should ignore all that other evidence. After all the 4th Amendment does state that "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.". If the search warrant didn't list those fake SS cards and whatnot on the warrant as required by the 4th then those items should be inadmissable in court.Well Mike the 4th Amendment requires the search be based on PROBABLE CAUSE (not proof beyond a reasonable doubt), and that the items be specified. However, it does not say that once the government has legally begun a search they should ignore evidence of other crimes. In your world if I do a search for counterfeit documents, but find a recently murdered body then I can't use the body as evidence of the murder? The 4th Amendment only specifies what is required to make a search legal, but DOES NOT prohibit the government from seizing other evidence of crimes, as long as the search itself stays within the scope of the warrant. For example if I am searching for a baseball bat used in a murder, I can't look for that bat in areas where it can't logically be hidden. For example if a baseball bat won't fit in a cigar box, so I have reason to open a cigar box. However, it could be hidden in closet. If I open a closet and find see two pounds of meth on the floor next to the bat, well the meth is getting seized along with the bat. If I open the closet to find counterfeit Social Security cards, and driver licenses, those are getting seized too.

This concept is known as the "plain view" doctrine. If I have a right to be there, ie, searching based on a warrant, and see other evidence while remaining within the scope of my warrant, I won't ignore those other crimes.

For a detailed explanation of search warrants I suggest reading this:
http://caselaw.lp.findlaw.com/data/constitution/amendment04/02.html#1

Also, this about plain view: http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#4

The text is quite clear and heavily footnoted so you can easily get the source of those statements. I would also want an explanation from the LEO's if why I was judge; as to why there "PC" info involved something that didn't exist in the residence. Perhaps they should have done more police work and determined that the residence had nothing to do with drugs, but instead with fraud and actually get a search warrant based on that. Warrants are based on PROBABLE cause, not proof beyond a reasonable doubt. If cops establish PROBABLE cause to a judge, there is the possibility that the evidence will not be there when the search is done. It's only PROBABLE that the evidence is there, not guaranteed. The burden of proof goes up, as the consequences go up. PC to search and seize, proof beyond a reasonable doubt to convict. If you have a problem with those standards it's going to require an amendment to the Constituion, because the fourth amendment is clear what the governments burden is to search.

[DMF]

Of course, DMF uses emotionally charged situations to get you to feel stupid for disagreeing. No I use REAL situations that occur frequently, and I have seen on the job. That's the reality, you go in to search for a list of items, but there is other evidence laying around. Once the cops are legally there, they can seize the evidence of other crimes, and the prosecutor can use it in court. There is nothing in the 4th Amendment that prohibits that.
. . . honest citizens who get in a bind somehow.If they are honest how did they "get in a bind?" Oh, that's right they're honest about everything but the laws they break.

[Deavis]

DMF...

If they are honest how did they "get in a bind?" Oh, that's right they're honest about everything but the laws they break.

And so are the cops who abuse their authority and are protected from prosecution by law and covered up for by their fellow officers, right? Good honest hard working guys just trying to make a bust? As if a warrant has never been issued under questionable or illegal circumstances. As if an innocent person has never been illegaly detained, jailed, harrassed, or killed by a person with a badge.

I'm not trying to start a JBT v. Us thread, but your comment is not only ridiculous, it shows how biased you truly are against the non-leo community. Here is an easy one, go on, enjoy... Give me a big fat rolly-eyes too while you are at it, I miss seeing them in threads.

http://www.cato.org/dailys/11-30-98.html

After that, we can talk about a case from an Custom's IA investigation that I learned about directly from the man who was forced out because he refused to change his investigation's results to favor the agents. Really cool stuff about how the agents got a warrant signed by a magistrate at a gas station just prior to a raid on a suspected drug house, based on information attained from a convicted felon who had provided them bogus information in the past for money. We can then talk about how they shot an innocent man, allowed him to nearly bleed out before they called an ambulance 30 minutes after they shot him, and how he is now physically reduced due to their actions. Yeah, they didn't do anything wrong. :rolleyes:

My post in no way condoned people getting away with breaking the law. I simply raised some questions about how the multitude of laws on the books can help and hurt society. I was quite specific in my support for laws that punished criminals but protected innocent people from abuse and mistakes.

JeffWhite, I've never filed for a warrant but that doesn't change the fact that I don't think we should be filling warrants on less than credible information. I'm sure you have never filed a warrant based on bogus information but that doesn't mean that other people haven't done it. My point is that safeguards have to be in place to catch as much abuse as possible. I believe, based on things posted by LEOs here, that by and large those saftey features are working and warrants are being filed legally. Mistakes happen, let's just not act like they only happen on one side of the table.

[DMF]

And so are the cops who abuse their authority and are protected from prosecution by law and covered up for by their fellow officers, right? Well the premise of your question is false, because there is no legal protection for cops who abuse their authority. Also, as I've said on this forum before, no one hates bad cops more than good cops. Good cops don't "cover up" for bad cops. But suspected bad cops are treated by the law like any other suspected criminal. They have due process rights, and the government must prove it's case beyond a reasonable doubt.

As for the CATO editorial, where are the sources for the claims made there? Having served some warrants, I don't know ANY cops I've worked with, state, local, or fed who would force entry without a warrant, or exigent circumstances. BTW, a snitch calling someone a drug dealer isn't exigent circumstances. Add to that I don't know any cops that would even apply for a warrant having just pinched a guy who gave up a name to get out trouble. So I'd like to see some PROOF that things went down as Mr. Lynch describes.

As for your Customs IA story, I seriously doubt that too. Sorry, but again, in the world I work in we need more than the uncorroborated hearsay story of a disgruntled ex-employee. However, feel free to provide something which might corroborate it.

[Telperion]

DMF, are the court findings (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=0120189cv0) from the Fifth Circuit Court of Appeals, enough proof for you?

On July 11, 1998, Houston police officers and members of the Southwest Gang Task Force Pete Herrada and J.R. Willis were patrolling in southwest Houston when they stopped a car for a traffic violation.(1) This stop led to the arrest of the driver, Ryan Baxter, who volunteered to give information about his drug supplier, a person called Rogelio, in exchange for lenient treatment. The two officers contacted the other members of the SWGTF. Sergeant Darrell Strouse and officers David Perkins, Lamont Tillery, and David Barrera, also members of the task force, joined Herrada and Willis. Together they devised a plan for expanding the catch.

By the initial plan Baxter was to meet Rogelio at a local fast-food establishment, setting up a search of his car. It didn't work--Rogelio did not appear. Baxter paged Rogelio again, this time confirming that Rogelio would be at his apartment and would make the sale there. The officers went to the apartment, but no one was home. After waiting until 1:30 a.m. on July 12, the officers returned to the apartment and, without obtaining a search warrant, had Baxter knock on the door. When the door opened, Baxter dropped to the ground and the GTF officers, waiting at the foot of the stairs, rushed into the apartment. There were several people in the apartment, and in the commotion one of the officers apparently shot another in the back, followed by a fusillade from the officers killing Pedro Oregon Navarro. A pistol found near Oregon's body was identified as belonging to Oregon.(2)

[DMF]

Yep, that's just dandy. So what happened to the officers who made the "unconstitutional warrantless entry?" Anyone have any information on that?

EDIT TO ADD: I found it. An article from the Houston Chronicle: http://www.lulac.org/advocacy/issues/rights/hc11-3.html

Hey Deavis it doesn't appear the prosecutor or cops were trying to "cover up" this one, and there was no "legal protection" for the cops.

The IA investigation said they broke the law, and the prosecutor took it to a Grand Jury. However, the GJ refused to indict. Can't say the cops and prosecutors aren't doing their job on this one. However, even though the GJ refused to indict, the cops all lost their jobs. Where's the cover up?

Reference my earlier statement, no one hates a bad cop more than a good cop.

[Fletchette]

In many cases we, the pro RKBA community lobbied for these laws to enhance penalties for the criminal misuse of firearms. Were we wrong?

Yes. I have always disagreed with the principle of programs like Project Exile. A murderer should go to prison or face capital punishment based on the fact they committed MURDER. Whether they accomplished thier crime by using a gun or a toothbrush is simply irrelevant.

If they are honest how did they "get in a bind?" Oh, that's right they're honest about everything but the laws they break.

Ahh, this says so much with so few words...

It is clear to me that you have a "it is against the law so it must be bad" attitude. My entire arguement is based on the premise that we now have so many laws that honest people cannot help but to run afoul of them. These people are not "bad"; the laws are bad!

So you think you aren't breaking ANY laws? Think again:

http://www.foxnews.com/story/0,2933,149955,00.html

Consider the following laws, either introduced or passed in only the first three months of 2005:

—After hearing complaints from the boys at his barbershop, Virginia legislator Algie Howell introduced a bill that would criminalize the trend of teenagers wearing their pants low on their hips. He isn't even the first. A similar bill was introduced in Louisiana last year. Howell has also sponsored bills putting restrictions on tricked-out automobiles and overly noisy stereo systems.

—The Montana legislature may ban the use of aluminum bats at baseball games.

—West Hollywood, Calif., has banned cosmetic surgery for pets, including cat declawing.

—A new machine that emits an alcohol mist has state lawmakers in Illinois, Missouri and Maryland scurrying to ban it, even though its effects are milder than actually drinking.

—New Jersey may ban anyone under 21 from owning a credit card.

—California and Illinois want to prohibit teens from using tanning beds.

—Colorado is considering designating a state-sponsored "No Name-Calling Week."

—San Francisco recently passed a new housing code — for doghouses.

This type of crap is rampant. You are probably breaking a law while you are reading this.

[MikeB]

This concept is known as the "plain view" doctrine. If I have a right to be there, ie, searching based on a warrant, and see other evidence while remaining within the scope of my warrant, I won't ignore those other crimes.

In the original example, it turned out there were no drugs as the warrant was issued to search for. It is my belief that based on that example as I have stated before, once no drugs were found the LEO's didn't have a "right to be there". And thus whether or not anything was in "plain view" doesn't come into it. When the facts don't stand up to what's listed in the warrant the warrant shouldn't be any good. Let's be clear here too, my arguments have nothing to do with any LEO. My arguments are against the interpretations of the law itself. I expect LEO's to use the tools they've been given by the legislature and courts. They aren't supposed to interpret the law; only enforce the laws as they are interpreted. If a judge and the legislature says it's ok, then as far as their job goes it's ok. That doesn't make the judges and/or the legislature correct. If we all want the State and Federal governments to take the second amendment at face value; then why not the other amendments.

[DMF]

Actually Mike, I am the one who talked about the plain view doctrine, not Jeff. Regardless, this idea of yours: In the original example, it turned out there were no drugs as the warrant was issued to search for. It is my belief that based on that example as I have stated before, once no drugs were found the LEO's didn't have a "right to be there". And thus whether or not anything was in "plain view" doesn't come into it. When the facts don't stand up to what's listed in the warrant the warrant shouldn't be any good. . . . it just doesn't agree with what the fourth amendment say. As I stated earlier the burden of proof established by the fourth amendment is PROBABLE cause, NOT proof beyond a reasonable doubt. If the cops establish PC they've met the burden established by the fourth amendment. Just because it's PROBABLE that the items specified will be there does not guarantee it. However, the warrant issued under the fourth amendment gives them the right to be there to look and see whether the items are there or not. Therefore they have the right to be there, and any evidence they find can be legally seized. Again, if you don't like the requirements of the fourth amendment I refer you to Article V of the Constitution.

[MikeB]

Actually Mike, I am the one who talked about the plain view doctrine, not Jeff. Regardless, this idea of yours

In the original example, it turned out there were no drugs as the warrant was issued to search for. It is my belief that based on that example as I have stated before, once no drugs were found the LEO's didn't have a "right to be there". And thus whether or not anything was in "plain view" doesn't come into it. When the facts don't stand up to what's listed in the warrant the warrant shouldn't be any good.
. . . it just doesn't agree with what the fourth amendment say. As I stated earlier the burden of proof established by the fourth amendment is PROBABLE cause, NOT proof beyond a reasonable doubt. If the cops establish PC they've met the burden established by the fourth amendment. Just because it's PROBABLE that the items specified will be there does not guarantee it. However, the warrant issued under the fourth amendment gives them the right to be there to look and see whether the items are there or not. Therefore they have the right to be there, and any evidence they find can be legally seized. Again, if you don't like the requirements of the fourth amendment I refer you to Article V of the Constitution.

My apologies to Jeff, I thought I was quoting him. This forum really needs an actual "quote" button.

Regardless, DMF I don't need article V. I also don't believe making more laws/amendments is the way to correct misinterpretations of a previous Amendment. If the 4th Amendment was interpreted correctly in my opinion, it states exactly what I've been arguing. Just as if we correctly interpret the 2nd, we wouldn't have any of our current gun laws. Just look at the inconsistency in the Miller decision and other decisions that have incorrectly cited Miller. I believe the same thing has happened with the 4th.

I suppose we'll just have to agree to disagree.

[John Ross]

IANAL, but lawyers have told me many times that when a warrant specifies something, and the police find something else illegal while looking for it, the test is whether they could reasonably claim to have been looking for the item on the warrant when they found the other illegal thing.

If the warrant allowed the cops to search for the body of a murder victim or a stolen 32" TV, and they found counterfeit money piled loose in a closet, that would be fine. But counterfeit money found in a desk drawer or a sealed envelope would not be admissable, as no one could reasonably claim to be looking for a dead body or a TV set in a desk drawer or envelope.

I would assume that if the warrant was for drugs, anything found would be admitted as drugs can be small and the cops would have a license to look everywhere.

JR

[Deavis]

Hey Deavis it doesn't appear the prosecutor or cops were trying to "cover up" this one, and there was no "legal protection" for the cops.

Reference my earlier statement, no one hates a bad cop more than a good cop.

Who ever said they were? You are so busy trying to prove to yourself that you can never be wrong you miss the whole point of my post. You post sniveling little comments and I simply point out the blatant idiocy of what you are saying. You made a completely ridiculous statement about honest citizens never getting into a legal bind and I made an equally ridiculous statement about police officers breaking the law and getting away with it. Then you go on and on and on and on and on about some tangent completely unrelated to the point of my post because you swear it is in some way anti-LEO. Let me be a little clearer for you, Mr. Useless Semantics Man, lest you not realize you are off-topic and inventing things that have no relation to my posts.

My points were the following:
- Honest people do get caught up in situations with the police that are not their fault, despite your ascertation that they do not.
- There are bad cops as well as good cops and sometimes bad cops do abuse their authority and do illegal things which hurt innocent people.
- There are procedures in place to help prevent abuses and it is a fine line to walk.

The Houston episode was a simple example of a cops doing something that put an innocent person in a permanent bind, i.e. DEAD (which you said never happens). I made no judgment on the legality of the what the police did, I simply used it to back up my point, see 1 above. I knew the outcome of the GJ, I lived in Houston, and followed the case. The Chief won't take them back, which I think is great on his part.

Its funny that no matter what anyone else posts, it just isn't good enough evidence for you. "IWhatever source it comes from just doesn't meet the muster of DMF (henceforth in my posts USM). "I doubt it happened that way because I've never seen it happen that way and I've seen everything. Nothing you say can be true but everything I say is!"

Anytime you want the full story on the Customs investigation, PM me you phone number and we'll set up a FTF with the man when you are ready. I'm sure he would be happy to take a little time to talk when he is on break from teaching law school. Then again, why would I bother him when you are just a keyboard commando, who doesn't even really work as a LEO? :confused: I mean, I have no proof you are what you say, so it can't be true. There are no honest people out there, I know it. :rolleyes:

[DMF]

Ah the hypocrisy:

First Deavis complains that he thinks I don't follow the high road: DMF, way to turn what could have been a great reply into a useless and insulting daitribe. Go THR! But then he spits out this stuff:
You post sniveling little comments and I simply point out the blatant idiocy of what you are saying. :rolleyes:

Anyway, you say:
Who ever said they were? Well you did:And so are the cops who abuse their authority and are protected from prosecution by law and covered up for by their fellow officers, right?Don't try to tell me that was unrelated to the stories you posted. If you knew the outcome then you shouldn't give the impression that someone covered up for those cops. Instead you should have either left out your comment about cops covering up for people, or being legally protected despite breaking the law, or you should have explained that no one covered for the cops in Houston.

You say I'm missing the point of your posts, but I answered it directly, no one covered up for those cops, and they did not get protected for their illegal acts, as your post implied.

You say I'm missing your point about, "There are bad cops as well as good cops and sometimes bad cops do abuse their authority and do illegal things which hurt innocent people." Not true, I've said many times, no one hates a bad cop more than a good cop. Obviously I recognize some bad cops exist, despite the best efforts of good cops to get rid of them. However, I did address your concerns about this by pointing out that the illegal acts of those Houston cops were not covered up. Good cops, and good prosecutors went after them.

You lie about my posts, with comments like, "which you said never happens" and "its funny that no matter what anyone else posts, it just isn't good enough evidence for you." What I said was I doubted it happened the way it was described by Lynch, because it was so outrageous and doesn't come close to things I've experienced, and I asked for proof to back up that story. Then when the link to the Circuit Court decision was posted as proof, asking if that was acceptable to me, I said, "Yep, that's just dandy." So obviously people can provide proof I find acceptable.

[Fletchette]

Note the part about intent. The states attorney can't make a felon out of you for possessing a screwdriver, unless he can prove you intended to use it in a burglary. So if you're an average THR member and have a large screwdriver in the tool kit in your car, you're just fine. But if you have previous arrests and convictions for burglary, and you're found lurking about a warehouse at 2:30 am with said long screwdriver shoved down your pants and matching prymarks on the door jamb, guess what?

In this situation, the charge should be "attempted burglary", not possession of a tool. Note the other negative that I cited in my original example: people associating lawful actions with illegal actions.

Screwdrivers are no more moral or immoral than a gun. But by prosecuting someone based on the possession of a screwdriver, the government is implying (or flat out stating) that merely possession is somehow wrong.

The fact that the suspect attempted burglary is the crime, not the fact that he had a screwdriver, a gun, or was wearing sneakers.

[Jeff White]

Attempted burglary is going to be hard to prove if you don't observe him trying to jimmy the door open. :uhoh:

Jeff

[Fletchette]

Attempted burglary is going to be hard to prove if you don't observe him trying to jimmy the door open.

...and what are we supposed to do if we cannot prove a crime? What do we call a suspect before they are proven guilty?

[Jeff White]

A suspect is still a suspect until you can prove him guilty. If you can't prove him guilty then he's no longer a suspect. Although sometimes, you know they really are the perp, but you also know you'll never prove it....

Say you owned a warehouse and one day you came to work and found a side door jimmied open and many valuable items hauled out. So you called the police and they came down and looked around and one of the detectives mentions that two mornings ago the midnight shift had contact with Joe Dirtbag just outside that door. He wasn't breaking into the place, but when they patted him down for weapons (Joe Dirtbag has an extensive criminal history and his presence in the alley next to the warehouse door at 0230 let the midnight shift officers to reasonably believe there might be a crime in progress so they patted him down as provided by the Terry Decision) they found a 16" Craftsman screwdriver in his waistband. The blade of the screwdriver matched some impressions in the door jamb, but when they asked Joe Dirtbag if he was trying to break into your warehouse, he said no. So they let him go....

So the detectives go by Joe Dirtbag's last known residence and Joe says he went straight home after his encounter with the midnight patrol officers and has been home sick ever since. Said his live in girlfriend Julie Crackbabiemom will verify that, as will her mother and older brother...Joe says he found the nice Craftsman screwdriver laying there in the doorway and he gave it to some guy who was changing his tire on the side of the road the other day because he was having trouble getting the wheelcover off (after all, Joe is a helpful guy).

So now Mr. Flechette is out everything that was taken from his warehouse and it's another unsolved burglary and he's rather upset because with all the money he pays in taxes, and all the neat cop stuff he sees on CSI, the local police can't even solve a simple burglary. And Joe Scumbag, he buys some more crack for Julie with the proceeds from the sale of Mr Flechette's property.

Jeff

[Fletchette]

Ok, to continue the example,

The detectives were correct in letting Joe Dirtbag go at 2:30 am, as there was no evidence of Joe committing a crime. Afterall, Mr. Fletchette had not reported a burglary yet. Upon receiving the call from Mr. Fletchette that his shop was robbed, the detectives were again correct in paying Joe a visit, as he would be suspect.

Since Joe answered the door and voluntarily answered the detectives questions, it would be perfectly legal for the detectives to look past Joe into his house. If they noticed any of Mr. Fletchette's property, they could arrest Joe.

However, it is more likely that even Joe Dirtbag is not so stupid to leave stolen property in plain view, so the detectives would probably not see anything. They would have to leave after the conversation with Joe ends. The detectives now have two options.

1) If they feel strongly that Joe committed the crime, based on his sighting and on prior history with him, the detectives can ask a judge for a warrant to search Joe's house for Mr. Fletchette's property. If the judge says 'no', then that's that. The detectives have done their job and Mr. Fletchette will be angry with the judge. If he says yes and issues the warrant, the detectives then have the right to again visit Joe Dirtbag, present him with the warrant, and then search his house for Mr. Fletchette's property. If they find said property, they can arrest Joe. If not, they will have to leave. Mr. Fletchette may be angry but the police did their jobs.

2) The other choice would be that the detectives could simply frame Joe for a crime that they are "sure" he committed, call it something else so it sounds good, and throw him in jail just to make everyone feel better.

Except for Joe.


...and for screwdriver owners

[Jeff White]

1) If they feel strongly that Joe committed the crime, based on his sighting and on prior history with him, the detectives can ask a judge for a warrant to search Joe's house for Mr. Fletchette's property. If the judge says 'no', then that's that.

That will be that then, because, at least around here, no judge is going to sign a warrant to search Joe's house unless someone is prepared to swear they saw Mr. Flechette's property in the house.

Jeff

[gc70]

"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 4th Amendment is an elegantly written part of the Constitution - clear and to the point. But the 4th Amendment does not say anything about the police being required to be blind to plainly visible evidence of other unlawful activities not specified in the warrant.

The view that the 4th Amendment is constrained to its exact words and absolutely nothing else is ridiculously dogmatic. Applying the same logic to the 2nd Amendment would mean that criminals would be allowed to be armed while in custody and imprisoned, since "the right of the people to keep and bear arms, shall not be infringed" has no specific exception for people who are jailed.

[Deavis]

:rolleyes:

I'll take it offline, I don't want to thread hijack since my points no longer deal with the subject. Sorry for the mild diversion.

[Fletchette]

Quote:
1) If they feel strongly that Joe committed the crime, based on his sighting and on prior history with him, the detectives can ask a judge for a warrant to search Joe's house for Mr. Fletchette's property. If the judge says 'no', then that's that.


That will be that then, because, at least around here, no judge is going to sign a warrant to search Joe's house unless someone is prepared to swear they saw Mr. Flechette's property in the house.

...and so what is so bad about this conclusion? I'd much rather have an unsolved crime than for the government to wrongfully convict an innocent person.

Furthermore, it is entirely possible that the burglar would be caught a few days later when he/she tried to fence the goods. If Joe Scumbag is actually innocent, arresting him on "possession of burglary tools" would not only convict the wrong man, but also close the trail to the real criminal.

[Fletchette]

The view that the 4th Amendment is constrained to its exact words and absolutely nothing else is ridiculously dogmatic. Applying the same logic to the 2nd Amendment would mean that criminals would be allowed to be armed while in custody and imprisoned, since "the right of the people to keep and bear arms, shall not be infringed" has no specific exception for people who are jailed.

The 4th Amendment is indeed constrained to it's exact words. There is nothing in it that prohibits a law officer from arresting a person when they directly witness a crime in progress. In my example, I specifically mentioned that the detectives could arrest Joe, without a warrant, if they noticed Mr. Fletchette's property when looking past him into his room.

What the 4th Amendment does do is restrict law enforcement officers from launching fishing expeditions on flimsy evidence. If a judge is convinced that there is sound enough reason to suspect that a specific crime has been committed, and thus issues a warrant, then the 4th Amendment has not been violated.

By the way, criminals in prisons DO have the right to keep and bear arms, but that right has been lawfully repressed by a jury of the citizen's peers.

[Jeff White]

If possession of burglary tools is a crime, and it is here in Illinois, and he is convicted of that crime afer being found outside Mr. Flechette's warehouse with a screwdriver matching the pry marks on the door and jamb, shoved down his pants, how is he innocent? Seems to me he's committed the crime of possession of burglary tools. Of course if his attorney is really good and convinces the jury that the state didn't make it's case as to his intent to commit a crime. Now the forensic report that the blade of the screwdriver matched the marks on the door and jamb, might make that arument problematic for some jurys, there is still a chance they could believe that he didn't intend to break into Flechette's warehouse and aquit Joe.

If the midnight shift arrests Joe the morning that they found him standing next to the door with the screwdriver that matches the pry marks shoved down his pants, and the states attorney doesn't think he can convince the jury that Joe Dirtbag was going to break into Mr. Flechette's warehouse, then he's free to drop the charges.

I lost a convicted felon in possession of a firearm charge several years ago. The firearm was seized in an inventory search of a car that was being towed after a DUI arrest. I found it in the tool box as I was noting everything of value for the tow sheet. Methamphetimine was also found. Since the gun charge meant some serious time for the offender, (he had a very long criminal history) he got his brother to swear that the gun was his and the offender had no knowledge that it was in the toolbox. The states attorney, not wanting to chance losing in court in an expensive jury trial (offender offered to plead to the DUI and possession of controlled substances charges, not much mandatory time for him), dropped the convicted felon in possession of a firearm charge. Prosecutors drop charges all the time.

Jeff

[Fletchette]

If possession of burglary tools is a crime, and it is here in Illinois, and he is convicted of that crime afer being found outside Mr. Flechette's warehouse with a screwdriver matching the pry marks on the door and jamb, shoved down his pants, how is he innocent? Seems to me he's committed the crime of possession of burglary tools.

I guess this brings me back to my original question - why not just convict him on "attempted burglary" with this evidence?

[2nd Amendment]

*waves hand to clear the gathering dust of...could it be...is it possible yet again...?

Yup, the wagons, they are a-circling...*


:banghead:

[gc70]

Thanks, Fletchette, but I was responding to someone else's post rather than yours. :neener:

MikeB said Yes they should ignore all that other evidence. After all the 4th Amendment does state that "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.". If the search warrant didn't list those fake SS cards and whatnot on the warrant as required by the 4th then those items should be inadmissable in court.I respondedThe 4th Amendment is an elegantly written part of the Constitution - clear and to the point. But the 4th Amendment does not say anything about the police being required to be blind to plainly visible evidence of other unlawful activities not specified in the warrant.

The view that the 4th Amendment is constrained to its exact words and absolutely nothing else is ridiculously dogmatic. Applying the same logic to the 2nd Amendment would mean that criminals would be allowed to be armed while in custody and imprisoned, since "the right of the people to keep and bear arms, shall not be infringed" has no specific exception for people who are jailed.To recap: MikeB contended that the exact words of 4A did not allow police to legally recognize evidence of a crime if it was not listed on a warrant
I contended that 4A is not constrained to its exact words, so that police can legally recognize evidence of a crime not listed on a warrant
You may have been in a rush to disagree with me, but I do appreciate the example you provided (supporting my argument) that police can make an arrest when they recognize evidence of a crime not listed on a warrant.

Fletchette said:By the way, criminals in prisons DO have the right to keep and bear arms, but that right has been lawfully repressed by a jury of the citizen's peers.Shall we split hairs? Incarcerated criminals may have a God-given or 'natural' right to keep and bear arms, but they have no legal right to keep and bear arms (which you correctly note has been judicially suspended) during the term of their incarceration. Nevertheless, thanks for supporting my argument that 2A is also not constrained to its exact words. :)

[Fletchette]

Well, we could go around and around on this, but it is my opinion that if you can arrest and prosecute someone of "possession of burglary equipment" then you can just as easily prosecute for "attempted burglary".

Why is this important? Because it leaves other screwdriver owners out of the mix. By establishing a precident that merely possessing a tool is a crime the government can much more easily persecute non-criminals for made up crimes.

I am not necessarily disputing that Joe Scumbag in the above scenario would be guilty given the evidence, I am just concerned that the way he is prosecuted would eventually affect law abiding citizens adversely.

[richyoung]

Shall we split hairs? Incarcerated criminals may have a God-given or 'natural' right to keep and bear arms, but they have no legal right to keep and bear arms (which you correctly note has been judicially suspended) during the term of their incarceration. Nevertheless, thanks for supporting my argument that 2A is also not constrained to its exact words.

Specious reasoning, at best. The 2nd guarantees that a "right" "of the people" "shall not be infringed". Denying arms to prisoners can pass muster under the 2nd in any number of ways without having to abuse the wording of the 2nd. First of all - property rights, and the powers of soveriegn governments - who owns the detention facility? If I have the authority to prevent others from carrying a gun inside my house, or in my place of business, then surely the "owner" of the prison has the same right to deny the carrying of arms not only to detainees, but to visitors and employees, especially when necessary 1. for safety, and 2. to exercise a legitimate power of the state. So in a way, you aren't saying the prisoner can't "bear arms" - he just can't bear them while in detention, and he also can't leave detention. (As for post-release, where prohibited, that can be considered a type of life-long "semi-detention" unless one's pre-felonius rights are restored by an act of government, or the conviction is "undone" - a pardon, for example. Alternately, one can examine who constitutes "the people" - just as we don't extend the right to vote universally, (children, the mentally incompetent, felons), one could argue that prisoners don't fall under the definition of "people" as it applies to the 2nd am. (interstingly enough, neither do soldiers, nor the milita when federalized...but visiting foreign nationals do!). A third line or reasoning would examine whether a prohibition to access of arms during the punishment of a crime constitutes an "infringement", as intended by the authors of the Bill of Rights. See - numerous ways to justify disarming prisoners without having to "creatively" interpet the ammendment.

[richyoung]

As to evidence of another crime found during a search, imagine this scenario - Sgt. Friday and Frank are working day watch out of the "bunko" squad, ..sorry, all that TV growing up rotted my brain :) ) when they execute a warrant on the house next door to Federal Magistrate's residence. Probable cause for the search? Numerous ticket scalpers have been apprehended and found to have in their possession counterfeit tickets to tommorrows KISS concert. Upon questioning, several of scalpers name "Slick Willy", at the address nest to the Federal Magistrate, as the source for the tickets, claiming he makes them using a computer and a color laser printer. A local judge issues a warrant, and "Slick Willy's" accomplice/assistant/gun moll Monica admits the police. During the course of the search, no KISS tickets are found, but a color laser printer is found, and in the paper cutter next to the laser printer are found what are labeled (and appear to be) Social Security cards. Now pay attention, (and for argument, ignore the "plain view" doctrine):

1. Could Joe Friday go next door in this scenario, and based on his (sworn LEO) testimony, get a federal warrant? Answer - of course.
2. Could Joe have Frank "detain" the alleged crime scene (prevent Monica from detroying the fake SSN cards)and evidence in these circumstances long enough for Joe to walk next door and get the warrant - Answer - of course.
3. Would the evidence then be admissible against "Slick Willy"? Answer - of course.

All the "plain view" doctrine does is acknowledge that if a magistrate was available in a timely manner, the word of the LEO about what he saw would be considered "probable cause" enough to issue a warrant anyway, so the "presumtion", (granted, not always valid - see "Texas fake drug scandal"), is that a sworn LEO isn't going to lie about something like that he saw first hand, and in the interest of justice such evidence must be preserved in a timely manner.

[gc70]

Specious reasoning, at best.I beg to differ; I thought my entire argument was an elegant exercise in hyperbole. :cool:

[richyoung]

Perhaps it can be both? :neener: