Interesting call from a student...


PDA






Havegunjoe
April 18, 2011, 03:11 PM
Seems he was on his way home from the National Guard when he got into a bit of an altercation with another driver. Flipped each other the bird and called each other names then went on his way only to be followed by the other driver for awhile. (Yes I told him he should not have exchanged words to begin with, he should have just driven off since no damage was done. That was covered in class too but apparently in the heat of the moment he forgot.) After awhile he turns off and the other guy drives on. Soon he is surrounded by cop cars and is ordered out of his truck. The other guy apparently called the cops and reported he threatened him with a gun. Cops asked if he was carrying which he wasn't. Asked if he had one in the truck which he didn't. They cuff him and proceed to search his truck and find nothing. No permission was asked for or received. Eventually send him on his way. I told him he should call the police and find out if they charged the other drive as he apparently made a false report.

If you enjoyed reading about "Interesting call from a student..." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
Nushif
April 18, 2011, 03:33 PM
He definitely should. Lying to a police officer is a crime, too.

AirForceShooter
April 18, 2011, 03:35 PM
I'd be in the cop shop asking to see the CO.
Warrantless search? Cuffed?

Let's see the field report.

Don't do a formal complaint. Unless the CO tells you to go pound sand

AFS

Hamilton Felix
April 18, 2011, 03:39 PM
Yes, terrible harm, up to and including attacks by SWAT teams, can be caused by false reports. And the one making up the lies seldom suffers at all.

I can't help wondering: What if someone made that false report about me; I DO carry when driving. How would I convince the cops I never showed my gun to the other driver? They will always want to believe the worst, and if the other guy is a convincing liar, where would that leave me? Never mind that I don't get into namecalling contests or rude gestures (well, not in a couple of decades, anyway).

The very least a false accusation will accomplish is to put you into a situation where you may very well be killed by gung-ho Enforcers, who have been made edgy by the report (and they will not suffer for it).

DustyVermonter
April 18, 2011, 04:41 PM
Sounds like something that would happen to me, except I would have had my gun on me so in this case I would have made it verbally apparent that I would not consent to a search and after being cuffed would be practicing my right to remain silent because at that point, they obviously got it all wrong and its time to lawyer up.

BTW, here in Vermont I'm pretty sure brandishing a firearm is like a $15 fine or something like that.

I would definitely instruct this fellow to follow this up with the PD, sounds like his rights were non-existent at the mention (false accusation) of a firearm being involved.

kingpin008
April 18, 2011, 05:28 PM
Warrantless search? Cuffed?

I would think that a report of a gun being brandished would provide sufficient probable cause for a car search.

txhoghunter
April 18, 2011, 06:21 PM
I would think that a report of a gun being brandished would provide sufficient probable cause for a car search.

It does. Which is another reason false police reports are crimes. You are causing the police to infringe the rights of others when they have not broken the law, thereby, you are infringing on their rights.

InkEd
April 18, 2011, 07:22 PM
Inquire if the other individual was charged with filing a false report. And request a written and signed letter of apology from the police department. Neither will probably happen BUT at least you will have tried to make things right.

kingpin008
April 18, 2011, 07:26 PM
And request a written and signed letter of apology from the police department.

You've gotta be joking.

Look - If the police are called to respond to a call of a man in a car brandishing a firearm, it makes sense for the responding officer to search the car for said firearm. Probable cause, and all that. There is ZERO reason to expect an apology from an officer for doing exactly what his job requires of him.

BENBRU
April 18, 2011, 09:21 PM
I agree with the above that there is no reason to expect an apology from the PD. The apology should come in the form of prosecuting the false statement made by the "victim."

Another route might be to seek civil action... probably would take quite a bit of time and would probably involve paying an attorney. I wouldn't but hey... I think he could.

Allowing these kinds of things to happen and to go unpunished will continue to make it ok. Keep us updated if your student does decide to take action.

Aaron Baker
April 18, 2011, 09:24 PM
Probable cause, and all that.

If there's probable cause in this situation, I need to go back to law school.

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

Just because a person calls and says that another driver showed/pointed a gun at them, does not mean that if you find that car, you have probable cause to believe that the person actually possesses a gun. It's NOT probable cause precisely because there is nothing to corroborate.

It seems like people here think that just because a gun was mentioned, that's automatically going to give the police probable cause to search. God help us if it is.

The guy should definitely file a complaint. Had he been injured/had property damage in any way because of this search, he would be within his rights to sue the police department in question.

Aaron

M-Cameron
April 18, 2011, 09:27 PM
I can't help wondering: What if someone made that false report about me; I DO carry when driving. How would I convince the cops I never showed my gun to the other driver? They will always want to believe the worst, and if the other guy is a convincing liar, where would that leave me? Never mind that I don't get into namecalling contests or rude gestures (well, not in a couple of decades, anyway).


im kind of wondering the same thing myself.......

now chances are you would most likely be arrested.........but does any one know what would happen after that?

.....now in most states you are innocent until proven guilty......and i cant help but think this would turn into a 'he said, she said' situation.........so would this ultimately boil down to what mood the judge is in that day?

TexasRifleman
April 18, 2011, 09:27 PM
If there's probable cause in this situation, I need to go back to law school.

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

I didn't go to law school at all but I agree, there doesn't seem to be probable cause for a search here. If that had happened to me I'd be looking for some kind of remedy.

If anonymous calls were probable cause for warrantless searches we'd be in big trouble, and you'd read about it daily in the news.

ljnowell
April 18, 2011, 09:32 PM
If there's probable cause in this situation, I need to go back to law school.




How do you know it was an anonymous report? If the person gave a name and info and claimed that someone pointed a gun at them, why wouldnt there be probable cause to search?

GRIZ22
April 18, 2011, 09:42 PM
An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

There is nothing in the OP that says it was reported anonymously. The guy apparently told the police who he was and made the report. Search w/o warrant would be appropriate in those circumstances.

Remo223
April 18, 2011, 09:51 PM
I didn't go to law school at all but I agree, there doesn't seem to be probable cause for a search here. If that had happened to me I'd be looking for some kind of remedy.

If anonymous calls were probable cause for warrantless searches we'd be in big trouble, and you'd read about it daily in the news.
Actually, in certain situations, anonymous calls ARE probable cause for searches.

1. If you call and say that so-and-so is a danger to themselves and is contemplating suicide via drug overdose, the cops can bust into their house to save them from themselves without permission.

2. If you see on TV a description of a car or person that the cops are looking for and then call the hotline and tell them you saw that car/person at such-and-such address, the cops will do a search of that house and will not ask permission.

M-Cameron
April 18, 2011, 10:00 PM
2. If you see on TV a description of a car or person that the cops are looking for and then call the hotline and tell them you saw that car/person at such-and-such address, the cops will do a search of that house and will not ask permission.

ok, i am almost certain that is against the law.

there may well be a mass murder in a house, and the police are 100% certain they are in there.....they cant go in without a warrant.



now i am not certain....but i believe the only time police are allowed in a home/ car/ property without a warrant is if someones life is in eminent danger.

Aaron Baker
April 18, 2011, 11:15 PM
1. If you call and say that so-and-so is a danger to themselves and is contemplating suicide via drug overdose, the cops can bust into their house to save them from themselves without permission.

2. If you see on TV a description of a car or person that the cops are looking for and then call the hotline and tell them you saw that car/person at such-and-such address, the cops will do a search of that house and will not ask permission.

Like I said, maybe I should go back to law school. But just in case, why don't you go ahead and cite me any cases where those types of warrantless searches were upheld.

In the first situation, they will knock on the door first and speak to the person and ask for consent to come in. However, absent a warrant and something more than someone's say-so, they're not legally allowed to just bust the door down.

In the second situation, they can only search the house with a warrant. And during the short period that I was a judge, I would need more than just "a citizen called and said so-and-so/this car was at this house" before I would have issued a search warrant. I want corroboration.

As to the question about anonymous versus non-anonymous reports, there's a whole line of case law about how much weight to give citizen complaints in determining probable cause. Anonymous reports are given very little weight at all, whereas complaints from non-criminal citizens are given more weight, but you still generally need some amount of independent corroboration before you can get a warrant.

In my opinion, part of the problem with our legal system is that the only thing keeping the police from violating the 4th amendment rights of citizens is the exclusionary rule (and much more dimly, the threat of a Section 1983 federal lawsuit). If they don't discover anything illegal in an illegal search, then there's nothing to exclude from evidence in court, and therefore there's no penalty for the cops that trampled all over a citizen's rights.

That's plain wrong.

Aaron

blarby
April 19, 2011, 12:12 AM
"now i am not certain....but i believe the only time police are allowed in a home/ car/ property without a warrant is if someones life is in eminent danger."

That is true- but the power in my eyes is questionable at best... I give my personal example :

I walked out of a shower once to a living-room full of policemen wanting to know why my stereo was so loud, and rifling and in fact seizing my property.

Their assertion was that I may have been being held hostage or injured, and that was the only way I might have had to notify them.

When I asked how long they had been there, and was informed in excess of 5 minutes- but had not reached the second door on the right ( my bathroom ) but had time to secure property they considered objectionable is when it got heated. Me finding them and not the other way around led to a CO getting involved, to no avail.

End result, no charges were ultimately filed, however property was not returned.

No, it (property) was not narcotics or of a heinous nature.

No remedy. They do what they want, often with the backing of the bench in their jurisdiction.

Aaron Baker
April 19, 2011, 12:41 AM
And Blarby's situation is why the 4th Amendment needs more teeth.

Since you were damaged (unreturned property) and since their entry was unlawful, you could file a federal lawsuit under Section 1983. However, is it worth suing someone for what is probably a small amount of damages just to make the point that the police shouldn't be violating your rights? Probably not.

There are plenty of good cops out there, but the bad ones who don't know the law and violate people's Constitutional rights in the name of public safety are the ones that give cops a bad reputation.

Aaron

medalguy
April 19, 2011, 01:00 AM
This is just another really good reason to keep your fingers (and other body parts) to yourself.:rolleyes:

Diggers
April 19, 2011, 01:24 AM
I'm suprised they didn't just ask to look in the cab of the truck. 99% of people out there would allow the search in that situation.

The police in this situation really must not be very well trained because if there was a gun they would of blown the case with a bad search....interesting.

I do wonder if they had the reporting parties true name and info...I'm betting they didn't so they just went ahead and searched with hopes they could fine something.

The cuffing part is pretty standard OP these days for an individual who could be dangerous.

avs11054
April 19, 2011, 01:42 AM
If there's probable cause in this situation, I need to go back to law school.

An anonymous report with no corroborating information does not equal probable cause. Probable cause to believe what?

Just because a person calls and says that another driver showed/pointed a gun at them, does not mean that if you find that car, you have probable cause to believe that the person actually possesses a gun. It's NOT probable cause precisely because there is nothing to corroborate.

It seems like people here think that just because a gun was mentioned, that's automatically going to give the police probable cause to search. God help us if it is.

The guy should definitely file a complaint. Had he been injured/had property damage in any way because of this search, he would be within his rights to sue the police department in question.

Aaron
First, OP says nothing about the call being anonymous.

Second, "probable cause" to search the car just based on the story presented in the OP...definitely not. But there is definitely reasonable suspicion to "frisk" the accessible area to where the student was sitting in the vehicle.

None of us were there, so we can't be sure of what exactly happened, but the cops cuffing the student, and then looking under his seat, in the console, in the glove box, etc, could be seen as a "search" to the student, when in reality, it was a "frisk" of his accessible area.

Davek1977
April 19, 2011, 04:24 AM
Probable cause, as many have already stated, has to meet certain standards. The police cannot randomly search any house they have a tip a wanted person may be in just on general principal. They can "knock and talk" hoping to gain permission, or they can get a warrant. They cannot just barge in becasue someone told them a criminal was hiding on the premises. The 4th Amendment protects us against such unreasonable searches, and a "tip" does NOT meet the standard necessary for probable cause. While INFORMANTS...with ESTABLISHED HISTORY....can provide info to police that can CONTRIBUTE to their probable cause, an anonymous tip...or ANY tip.... from a random person the police have no reason to either believe nor disbelieve, in and of its own, does NOT meet the standards of probable cause and no judge in his right mind would issue a warrant on hearsay alone. Anonymous tips and the like can CONTRIBUTE to probable cause, but they absolutely do NOT CREATE it in and of themselves. Remo's information is, as pointed out, erroneous, as is Kingpins. Both show a marked misunderstanding of what it takes to actually have probable cause in the real world. Tips, without any sort of collaboration or supporting facts, does not equal probable cause and for good reason.

(no I'm not a lawyer, but I do have a BA in Criminal Justice, and spend many nights a year at a Holiday Inn Express!!)

Diggers
April 19, 2011, 05:06 AM
Yes it's not sensible to think a tip, and especially an anonymous tip, is enough for PC to search. If that were the case then the police could basically search anything any time. “Hey we got an anonymous tip that there are illegal guns here. Open up we are coming in.”

HOWEVER, do keep in mind that the student was in a car and not a house. That does make a difference in the eyes of the law as to how much privacy a person can expect.

What avs11054 said is very true. An officer can search “frisk” the person and the area with in arms reach they had occupied for weapons if the officer has reason to feel threatened by that individual. This situation certainly qualifies for the frisk of the inside of the vehicle where a gun could have been hidden. It does not qualify the trunk of a car or anything in the bed of a truck.

Davek1977
April 19, 2011, 05:23 AM
yes, there certainly IS an "automobile exception" to the 4th Amendment. However, that exception doersn't eliminate the requirement for PC (probable cause). It eliminates the requirement of a warrant to search for evidence that could easily be moved or destroyed by the time a warrant was issued. The Terry frisk only requires REASONABLE SUSPICION, a much lower standard than probable cause) that the subject is armed to frisk him and the areas within his immediate reach. Being handcuffed outside of the car eliminates the possibility he can reach for a gun in the center console or glovebox, making that line of reasoning null. Once he was removed from the car and could no longer access it, any search would have to meet the PC standard, not the reasonable suspicion standard. It doesn't make any sense that an officer is concerned about his safety if the potentially armed person is restrained in handcuffs. At that point, its no longer a frisk, but a search, and the officer darn well better have PC(that he can explain to the judge in detail), permission, or a warrant if he plans on using any of the fruits of that search. Otherwise, the handcuffed students rights were violated under the 4th Amendment. The search of the glovebox, console etc would be valid IF the subject has easy access to them....which, being handcuffed outside of the vehicle, he did not

TexasRifleman
April 19, 2011, 09:25 AM
Actually, in certain situations, anonymous calls ARE probable cause for searches.

1. If you call and say that so-and-so is a danger to themselves and is contemplating suicide via drug overdose, the cops can bust into their house to save them from themselves without permission.

2. If you see on TV a description of a car or person that the cops are looking for and then call the hotline and tell them you saw that car/person at such-and-such address, the cops will do a search of that house and will not ask permission.

Neither of those would likely stand in court. Cops may DO those things on occasion, as blarby says happened to him, but that doesn't make it legal. That's why any time this happens to someone they need to contact an attorney and seek remedy if the attorney believes it was improper. That's the only way to stop these kinds of abuses of power.

avs11054
April 19, 2011, 09:30 AM
yes, there certainly IS an "automobile exception" to the 4th Amendment. However, that exception doersn't eliminate the requirement for PC (probable cause). It eliminates the requirement of a warrant to search for evidence that could easily be moved or destroyed by the time a warrant was issued. The Terry frisk only requires REASONABLE SUSPICION, a much lower standard than probable cause) that the subject is armed to frisk him and the areas within his immediate reach. Being handcuffed outside of the car eliminates the possibility he can reach for a gun in the center console or glovebox, making that line of reasoning null. Once he was removed from the car and could no longer access it, any search would have to meet the PC standard, not the reasonable suspicion standard. It doesn't make any sense that an officer is concerned about his safety if the potentially armed person is restrained in handcuffs. At that point, its no longer a frisk, but a search, and the officer darn well better have PC(that he can explain to the judge in detail), permission, or a warrant if he plans on using any of the fruits of that search. Otherwise, the handcuffed students rights were violated under the 4th Amendment. The search of the glovebox, console etc would be valid IF the subject has easy access to them....which, being handcuffed outside of the vehicle, he did not
Officer's can definitely "frisk" a car once the occupants are removed. No police officer in his right mind would start looking for guns inside a car that is still occupied.

Also, numerous officers have been shot by handcuffed people, and plenty of people carry handcuff keys in their pockets. Being handcuffed outside a vehicle does not prevent entry to that vehicle, and the officers were still justified to frisk the accessible area.

Back to the OP's statement, my recomendation for your student is to tell him to keep his mouth shut and his fingers to himself when he is driving, especially if he is unarmed. Plenty of people have been killed over road rage incidents. He has no way of knowing whether or not the other person is armed.

Remo223
April 19, 2011, 10:59 AM
Neither of those would likely stand in court. Cops may DO those things on occasion, as blarby says happened to him, but that doesn't make it legal. That's why any time this happens to someone they need to contact an attorney and seek remedy if the attorney believes it was improper. That's the only way to stop these kinds of abuses of power.
It doesn't matter how legal or illegal it is if they find something illegal there when they do their search. In my first example, drugs were involved. If the cops think they will have a drug bust, they won't care about the possibillity of violating someone's rights. If the individual has small kids, they will be even more likely to risk it.

I didn't make these two examples up out of thin air. I know of one instance each when these examples happened and there was no lawsuit against the cops. Both times the cops found illegal narcotics.

Even though I am not in favor of drug use, I am beginning to believe drugs should be legalized because I think the law is using drug laws as an excuse to violate peoples' rights.

zxcvbob
April 19, 2011, 11:12 AM
Officer's can definitely "frisk" a car once the occupants are removed. No police officer in his right mind would start looking for guns inside a car that is still occupied.
Also, numerous officers have been shot by handcuffed people, and plenty of people carry handcuff keys in their pockets. Being handcuffed outside a vehicle does not prevent entry to that vehicle, and the officers were still justified to frisk the accessible area.

In other words, they can perform an illegal search because they know they'll get away with it.

avs11054
April 19, 2011, 11:33 AM
In other words, they can perform an illegal search because they know they'll get away with it.
illegal says who??? Not the supreme court.

avs11054
April 19, 2011, 11:36 AM
It doesn't matter how legal or illegal it is if they find something illegal there when they do their search. In my first example, drugs were involved. If the cops think they will have a drug bust, they won't care about the possibillity of violating someone's rights. If the individual has small kids, they will be even more likely to risk it.

I didn't make these two examples up out of thin air. I know of one instance each when these examples happened and there was no lawsuit against the cops. Both times the cops found illegal narcotics.

Even though I am not in favor of drug use, I am beginning to believe drugs should be legalized because I think the law is using drug laws as an excuse to violate peoples' rights.
just because the cops weren't sued, it does not mean what they did was legal. In regards to those two situations, I would say the first one might be a legal entry into the house, depending on the circumstances of the situation. The second scenario is definitely an illegal entry and there's plenty of case law to back that up.

Aaron Baker
April 20, 2011, 12:39 AM
I have to say that avs11054 is, unfortunately, right. I was thinking solely in terms of probable cause, and neglected to realize the expansive bounds that cops are given when doing a "frisk" for "officer safety."

I personally believe that it's just another erosion of our 4th Amendment rights. As was pointed out, a handcuffed person cannot currently access his "grab area" (as they called it in Chimel) and therefore doing a frisk of that area is illogical. I don't buy the "people carry handcuff keys" or "cops can be shot while someone is wearing cuffs" arguments. If the cop is alone, then he shouldn't be turning his back on a suspect to search anything. And if he's not alone, as he wasn't in the OP's scenario, then there's no risk. One cop can be watching the "perp" at all times.

I fail to see how a handcuffed person is going to regain access to their vehicle in order to grab a gun if the cops are doing their jobs correctly. So frisk the guy, but leave the car alone once the person is cuffed. Otherwise you're just using "officer safety" as a pretext for the violation of the 4th Amendment.

But, like I said, avs11054 is correct. The Supreme Court has upheld this BS.

On the other hand...

It doesn't matter how legal or illegal it is if they find something illegal there when they do their search.

This is just bull. Any cop who doesn't care to trample someone's right against an illegal search of their home in order to make a drug bust is a rookie who has never been to a suppression hearing. The exclusionary rule is exactly why the quoted statement is wrong. It DOES matter how legal a search is. If it's illegal, anything found will be suppressed and not entered into evidence. That means that the kilos of cocaine will never see the inside of a courtroom and the cops can't even say what they found. The "perp" walks. That's the protection afforded to criminals whose rights are violated.

My complaint is that there's no real protection for NON-criminals whose rights are violated. If a cop wastes your time with a bad search and finds nothing, then you don't end up in court and there's no evidence to suppress in order to teach that cop a lesson. You just have your time wasted and your rights violated.

It's a sad state of affairs.

Aaron

withdrawn34
April 20, 2011, 01:04 AM
. Lying to a police officer is a crime, too.

Strange how the opposite scenario is not illegal.

Pigoutultra
April 20, 2011, 10:02 AM
Since when is it illegal to lie to a police officer? If they ask you a non-crime related question and you refuse or lie, then what's the problem. If they ask if you committed a crime and you lie, you are protected by the 5th amendment. If they could prosecute you for lying that would be one heck of a slippery slope. Imagine a cop telling you, "Don't answer yes or no if you committed a crime. Did you rob this store?" that would force you to either lie or self-incriminate if you actually committed the crime.

M-Cameron
April 20, 2011, 10:07 AM
Since when is it illegal to lie to a police officer? If they ask you a non-crime related question and you refuse or lie, then what's the problem. If they ask if you committed a crime and you lie, you are protected by the 5th amendment. If they could prosecute you for lying that would be one heck of a slippery slope. Imagine a cop telling you, "Don't answer yes or no if you committed a crime. Did you rob this store?" that would force you to either lie or self-incriminate if you actually committed the crime.

its not the legal crime of lying they use against you.......they use it as a show of character.

as in, in court, they can say....." we have proof hes lied before, why should we trust him now" kind of routine

Pigoutultra
April 20, 2011, 10:29 AM
its not the legal crime of lying they use against you.......they use it as a show of character.

as in, in court, they can say....." we have proof hes lied before, why should we trust him now" kind of routine

I've never heard that argument standing in a criminal case. I'm sure it's used in civil cases all the time though.
I've seen and heard police lie and their character wasn't questioned in court.
And how can they prove you were lying about the crime if you are still on trial and you haven't been convicted yet?
Even if you lie about being at a certain place at a certain time in relation to a crime, you are still protected as you would potentially be incriminating yourself with evidence you were at the scene of the crime. The supreme court has held that it is reasonable for an innocent person to lie to the police in relation to a crime for fear of prosecution.

M-Cameron
April 20, 2011, 10:35 AM
I've never heard that argument standing in a criminal case. I'm sure it's used in civil cases all the time though.
I've seen and heard police lie and their character wasn't questioned in court.
And how can they prove you were lying about the crime if you are still on trial and you haven't been convicted yet?
Even if you lie about being at a certain place at a certain time in relation to a crime, you are still protected as you would potentially be incriminating yourself with evidence you were at the scene of the crime. The supreme court has held that it is reasonable for an innocent person to lie to the police in relation to a crime for fear of prosecution.

when they say, "everything you say can and will be used against you in the court of law"......they mean everything.

the 5th amendment gives you the right not to act as a witness against your self......it doesn't mean that what ever you say is not admissible in court.

Pigoutultra
April 20, 2011, 10:44 AM
when they say, "everything you say can and will be used against you in the court of law"......they mean everything.

the 5th amendment gives you the right not to act as a witness against your self......it doesn't mean that what ever you say is not admissible in court.

With that argument it is alright for the prosecution to bring into question in court your character if you decide to lawyer up. They could argue that an innocent person would have nothing to fear and wouldn't opt for a lawyer.
That would never hold in court because it is to be assumed that the charged is innocent until proven guilty and the assumption that they are guilty because they lied is a logical fallacy.

M-Cameron
April 20, 2011, 10:52 AM
With that argument it is alright for the prosecution to bring into question in court your character if you decide to lawyer up. They could argue that an innocent person would have nothing to fear and wouldn't opt for a lawyer.

oh believe me, im sure, somewhere....some scumbag lawyer has tried that before.


That would never hold in court because it is to be assumed that the charged is innocent until proven guilty and the assumption that they are guilty because they lied is a logical fallacy.

they dont use it as proof, they use it as evidence to support their case.....it brings into question the legitimacy of the defense


just the same way a foot print at a crime scene isnt proof the defense is guilty...

...you couple that footprint with a bloody knife they found, along with some bloody rags at their home........and then for good measure toss in some proof the defense has lied before......starts to look pretty convincing to the jury.


that is why every lawyer in history has always advised you to NEVER SAY ANYTHING.

Pigoutultra
April 20, 2011, 10:57 AM
I understand what you're saying about it being used as supporting evidence to convict. I thought you meant that it could be used as main evidence such as if you lied about being at the scene and they found video tape proving otherwise, they could assume that you lied about killing the person without other non-circumstantial evidence.

M-Cameron
April 20, 2011, 11:03 AM
I understand what you're saying about it being used as supporting evidence to convict. I thought you meant that it could be used as main evidence such as if you lied about being at the scene and they found video tape proving otherwise, they could assume that you lied about killing the person without other non-circumstantial evidence.

oh god no.......if that was the only evidence they had, the defense would be laughing their way out of the court room in a matter of minutes.

and this is the one thing i hate about the internet......its like a large game of Telephone........

Pigoutultra
April 20, 2011, 11:11 AM
I also understand that there is a fair amount of convictions based on nothing but circumstantial evidence due to one or more of the following: a bad defense lawyer, an ignorant and eager-to-believe-that-the-prosecutor-knows-best jury, a "tough on crime" judge and DA, and a prejudice against the accused. It is said that "it is better that 100 guilty men go free than one innocent be imprisoned"(paraphrased) and I agree with that. I am also a staunch supporter of jury nullification. If society is capable of seeing that a "crime in statue" isn't really a crime in the definition of the necessity that their be a victim, they should nullify.

2000Yards
April 20, 2011, 12:28 PM
Since when is it illegal to lie to a police officer?

Federal drug and terrorism cases are sometimes built on little more than a mountain of lies. That is correct - no other wrongdoing than lying to a Federal agent. A friend of mine, who is a Fed and assigned to a CT group, has spent years collecting people's lies, with no other evidence of wrongdoing (to be fair, sometimes those charges are used to leverage their cooperation - but sometimes not). You mentioned police, and state LEO powers will vary, but the Feds have 18 U.S.C. sec 1001, making it a "crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is "within the jurisdiction" of the ever expanding federal bureaucracy. Though the falsehood must be "material" this requirement is met if the statement has the "natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed." United States v. Gaudin , 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is "within the jurisdiction" of a government agency. United States v. Yermian , 468 U.S. 63, 69 (1984). For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable. "

sourced from - http://library.findlaw.com/2004/May/11/147945.html

sig220mw
April 20, 2011, 12:42 PM
I have called the police before to report reckless driving and the response I got was that they had to witness it themselves and could not act on a phone call even though I did give them my name and address. The point the officer on the phone made to me was that I or anyone else could be lying in order to cause some one else a problem or embarrassment.

That certainly sounds like what happened in this case. Maybe different policies exist in different states or these particular police don't know the law or they have an anti-gun bias or their chief does.

I do know that a surprising number of police officers don't know nearly as much about the law as they should.

Havegunjoe
April 20, 2011, 01:46 PM
Police can lie, you cannot and therefore you can keep your mouth shut. That is the best course of action.

Havegunjoe
April 20, 2011, 01:50 PM
Interesting what everyone is saying. Just a couple of observations and facts. MY student didn’t know if the call was made anonymously or not. The police didn’t say. Second if the call was anonymous I would think that the police would follow and observe first instead of surrounding with multiple vehicles. It seemed to me to be an overreaction to the situation. My thought on this from the beginning was sans an independent witness to the incident it is a “he-said-she-said” situation and they did not have a legal right to search unless they happened to look in and see something that would warrant such a search. Last, lawyering up is not proof of guilt in any court I ever heard of, it’s a right. I would have exited the vehicle upon request, locked my doors and put the key in my pocket. Name, rank and serial number is all they get along with I don’t consent to any search of my person or vehicle, and I would have kept asking, “Can I go now”. If I am detained I would view that as an arrest and ask for a lawyer before any further questioning. I'm sure that would PO the police but so what?

avs11054
April 20, 2011, 06:12 PM
Interesting what everyone is saying. Just a couple of observations and facts. MY student didn’t know if the call was made anonymously or not. The police didn’t say. Second if the call was anonymous I would think that the police would follow and observe first instead of surrounding with multiple vehicles. It seemed to me to be an overreaction to the situation. My thought on this from the beginning was sans an independent witness to the incident it is a “he-said-she-said” situation and they did not have a legal right to search unless they happened to look in and see something that would warrant such a search. Last, lawyering up is not proof of guilt in any court I ever heard of, it’s a right. I would have exited the vehicle upon request, locked my doors and put the key in my pocket. Name, rank and serial number is all they get along with I don’t consent to any search of my person or vehicle, and I would have kept asking, “Can I go now”. If I am detained I would view that as an arrest and ask for a lawyer before any further questioning. I'm sure that would PO the police but so what?
Without a gun (maybe), admission of guilt by your student, or an independent witness, there's definitely not probable cause to arrest your student. That being said, exiting the car, locking the doors, and keeping the keys does and will not prevent the officers from frisking the area within arms reach of where your student was sitting. As stated earlier, people carry handcuff keys and cops have been shot by handcuffed prisoners. For those reasons, just merely handcuffing your student and sitting him on the curb does not necissarily prevent him from accessing the passenger compartment of the car. ESPECIALLY if he still has the car keys in his possession.
None of us were there, so we can only guess as to how much of a search or frisk the officers did.

Right or wrong, the supreme court currently allows officers to frisk a car for weapons, and a call of a road rage situation where somebody pointed a gun at someone else definitely would warrant a frisk of the car.

JDBoardman
April 20, 2011, 09:42 PM
Lets take this scenario a little further. Under what right does the TSA have to search me, my bags or my possessions? I understand that there is federal regulation that establishes the TSA, and mandates the search to "prevent" hijacking. However, the Constitution not only prohibits "unreasonable search and seizure", but the presumptive action that everyone who evidences desire to board an airliner is a possible hijacker, and will act as such unless stopped before he can act violates the concept of "innocent until proven guilty". And the fact that SCOTUS has upheld it doesn't make it either right or valid - witness, for example, Dred Scott or "Separate but Equal". SCOTUS overturns previous decisions not infrequently. Hence the Lefty Senators' concern for Stare Decisis.

Now prior to the establishment of the TSA and Federal usurpation of airport security, it could be argued that I had entered into a contractural agreement with the airline; and that part of the contract for carriage was implied consent to search of my person, papers and property. There is no 4th Amendment issue - UNTIL the Feds step in. Then that 220 year-old piece of parchment takes effect, and my rights should become supreme. But our benevolent government has decided, don'tcha know, that us peasants must be protected against our wills and through whatever invasive tactics the overloards deem necessary. Ever since United Flight 93, my money is on the passengers.

Davek1977
April 20, 2011, 11:37 PM
Actually, you STILL have a choice on whether to fly or not. No search is being "forced" upon you. If you don't want the search, you don't fly. While it could be argued that in today's world air travel is necessary, ultimately YOU have a CHOICE on whether to utilize air transportation, or to travel in a manner that doesn't require such stringent security. If you were being FORCED to travel by air, that would be one thing, but at this point, getting on an airplane is voluntary, and you agree to the terms when you buy your ticket. Its really not much different than being wanded or patted down entering a concert venue or club. You don't HAVE to be there, but if you choose to, you are agreeing to abide by the security arrangements in place

Greg528iT
April 21, 2011, 09:35 AM
Actually, you STILL have a choice on whether to fly or not.

Exactly.. I am meetin a buddy in Vegas next month.. he's driving, I'm flying.

Havegunjoe
April 21, 2011, 02:27 PM
A Terry Search is for the immediate safety of the officer. In-other-words he can search your person if he thinks you may have a weapon on you. I would argue that a locked car poses no danger to the officer. I have never heard of anyone carry a handcuff key and a cop being shot by someone was because he didnít restrain the person properly. I didnít mention it but he was placed in the back of a squad while they searched his truck.

zxcvbob
April 21, 2011, 03:08 PM
I would argue that a locked car poses no danger to the officer.I think maybe the lame excuse for searching the vehicle when the driver is handcuffed (and therefore cannot access anything) is when they release him at the end of the ordeal and he goes back to the vehicle he could retrieve a weapon.

NavyLCDR
April 21, 2011, 04:39 PM
You guys arguing the search of the vehicle might want to look at Arizona v. Grant. The search of the car was illegal.

http://www.patc.com/weeklyarticles/az_v_gant_vehicle_search_final.shtml

Key Question: Can officer conduct a search of a vehicle incident to arrest after an arrestee has been secured in handcuffs and placed in a locked police vehicle?

The Court went on to hold that: a search incident to arrest in a vehicle is only authorized “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”

The Court held: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

Sorry, but a search of the vehicle for "officer safety" AFTER the subject is in handcuffs is illegal, according to the US Supreme Court decision in Arizona v. Grant.

In the case of the OP, the search was also illegal because they had the subject in custody, they had the vehicle in custody, and without fear of evidence being destroyed or tampered with, they would require a search warrant to search for evidence of the crime of threatening with a firearm.

Davek1977
April 21, 2011, 05:13 PM
THANK YOU NavyLT....I thought that was the case!!! I feel vindicated! I KNEW i had read that ruling at one point......

Gaiudo
April 21, 2011, 06:29 PM
And during the short period that I was a judge...

BAM.... pocket cowboys.

avs11054
April 21, 2011, 09:36 PM
http://criminal.lawyers.com/traffic-violations/Unlawful-Vehicle-Searches-and-Seizures.html

http://blogs.laweekly.com/informer/2010/07/burbank_officers_shot.php

http://www.click2houston.com/news/14445413/detail.html

http://zovalente.wordpress.com/2011/02/24/chicago-police-officer-shot-by-suspect-in-handcuffs/

The first link is to an article on lawyer.com that discusses illegal search and seizure. At one point in bold letters it states that an officer may frisk a car even if the car is unoccupied. I've been unable to find any case law about frisking a car that says when an officer can and can't frisk a car, but in my law classes about search an seizure, a frisk is still legal if the suspect is outside the car. Now that havegunjoe states his student was placed in the back of the police car, I think it's iffy at best if the search/frisk was legal.

The next three links are articles about officers who were shot by people who were already in handcuffs.

AZ vs Gant deals with people who have already been arrested. In the OP's scenario, it seems his student was detained, and not under arrest, as there was no PC to arrest him.

NavyLCDR
April 21, 2011, 10:13 PM
In the OP's scenario, it seems his student was detained, and not under arrest, as there was no PC to arrest him.

Which means there was even less reason for a warrant less search of the vehicle.

The police were looking for the gun which the other driver said he saw. They were looking for evidence of a crime. In order to search for evidence of a crime, police must obtain consent to search or a search warrant, unless an immediate need exists to obtain the evidence before it is destroyed or tampered with. With the OP in handcuffs, there was no way he could destroy or tamper with any evidence of the crime, therefore a warrant or consent to search would be required.

If the OP refused to give consent, they could simply detain him until they attempted to obtain a search warrant based on the testimony of the other driver.

Also, BTW, a traffic stop IS an arrest. The person is arrested long enough for the officer to issue the citation, which is a promise to appear in court, or pay a fine in lieu of appearance. But it is still an arrest.

Example:
http://apps.leg.wa.gov/rcw/default.aspx?cite=46.64.015

RCW 46.64.015
Citation and notice to appear in court — Issuance — Contents — Arrest — Detention.


Whenever any person is arrested for any violation of the traffic laws or regulations which is punishable as a misdemeanor or by imposition of a fine, the arresting officer may serve upon him or her a traffic citation and notice to appear in court. Such citation and notice shall conform to the requirements of RCW 46.64.010, and in addition, shall include spaces for the name and address of the person arrested, the license number of the vehicle involved, the driver's license number of such person, if any, the offense or violation charged, and the time and place where such person shall appear in court. Such spaces shall be filled with the appropriate information by the arresting officer. An officer may not serve or issue any traffic citation or notice for any offense or violation except either when the offense or violation is committed in his or her presence or when a person may be arrested pursuant to RCW 10.31.100, as now or hereafter amended. The detention arising from an arrest under this section may not be for a period of time longer than is reasonably necessary to issue and serve a citation and notice, except that the time limitation does not apply under any of the following circumstances:

(1) Where the arresting officer has probable cause to believe that the arrested person has committed any of the offenses enumerated in RCW 10.31.100(3);

(2) When the arrested person is a nonresident and is being detained for a hearing under RCW 46.64.035.

Next time you get a traffic ticket, read it. There will be a space there for "arresting officer".

avs11054
April 22, 2011, 09:46 AM
There are multiple exceptions to search warrants when it comes to vehicles though. One of which is a frisk of the vehicle if the officer has reasonable suspicion to believe the occupant of the vehicle might be armed, he can search the area accessible to the person he believes to be armed. As stated in the link provided, there is no need for the person to still be in the car to frisk the car.

And a traffic stop is a seizure. It is not an arrest. If a traffic stop were an arrest, while the officer may or may not be justified in searching the car, the officer would be completely justified searching the driver of the vehicle "incident to arrest," as that is one of the exceptions to the search warrant requirement to searching people. And this is definitely not the case on every traffic stop.

If you enjoyed reading about "Interesting call from a student..." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!