Wisconsin: Police State, B'gosh

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The best story --

http://www.wisinfo.com/northwestern/news/local/stories/local_16971594.shtml
Posted July 20, 2004

On the web:

www.winnebagocrimestoppers.org

Search for shooting perpetrator becomes frustrating for Oshkosh neighborhood

By Jim Collar and Jeff Bollier
of The Northwestern

The ongoing search for a perpetrator continues to prove frustrating for residents of the otherwise quiet neighborhood near Smith Elementary School. Residents of the 1700 block of Minnesota Street had mixed things to say about the methods police used in searching homes Sunday morning in the aftermath of the shooting.

Terry Wesner said “a couple of shotguns and a rifle†were removed from his home by SWAT Team members after he consented to a search, though officers did not tell him they removed the firearms after they completed their search.

“That’s what makes me so mad,†Wesner said. “They had no reason (to remove the firearms) without a warrant. … I didn’t know they removed anything until my buddy, who’s staying with me, noticed they were missing. I thought you had to have a warrant to take someone’s guns.â€

Oshkosh Police Capt. Jay Puestohl said officers “don’t go into houses without consent or a warrant.†He acknowledged consent to search does “not necessarily†mean officers have consent to remove property.

Puestohl also said nothing illegal was done by removing the firearms and that investigators needed to examine them. He declined to say on what grounds officers had the right to remove the firearms, though.

“We’re getting into a lot of legal details if there’s evidence that can be seized. They (the firearms) could be,†Puestohl said. “As far as I know there was nothing inappropriate or illegal done.â€

Martin Gruberg, president of the local chapter of the American Civil Liberties Union, said some of the stories he’s heard from the neighborhood at least raise questions of whether rights were violated by investigating police.

“Search warrants are specific, and include information on why police are there and what they’re looking for,†Gruberg said. “If you give police consent to search, does that give them the right to come in, rummage around and take things? I’m not sure.â€

Gruberg said neighbors might have felt compelled to offer consent whether or not they were comfortable with a search because they didn’t want to give the appearance that they had something to hide.

Ron Kendall, a resident of the 1700 block of Minnesota Street, said residents of the house that has become the focus of the police investigation refused to consent to a search without a warrant.

He suspects it’s a reason why police are giving the home so much attention.

Detectives, who went to the home with a search warrant Sunday morning, were seen using a metal detector, sweeping through grass and cutting down shrubs and branches in the front yard Monday evening. Puestohl declined to say whether officers pursued the warrant because the residents refused a consent search.

Details of the search, probable cause for the search or any items taken from the home weren’t available on Monday. Court records show that one occupant of the home has no criminal record, while the other occupant’s record is limited to non-violent misdemeanor convictions.

Kendall said officers have shown neighbors disrespect during their investigation.

“I can understand: It’s one of their own, but they’ve been downright rude to us,†Kendall said. “You don’t treat so-called civilians this way.â€

Doris Eichel was another 1700 block resident whose house was searched, but she said officers were very polite.

“They were very courteous,†Eichel said. “I have no complaints.â€

Jim Collar: (920) 426-6676 or [email protected].
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More from activists on-scene:
I
also saw all the television reports: The man who was visibly shaken after
his guns were "stolen" without any warrant being issued or apparent probable
cause; the elderly woman who woke up to SWAT police doing a search in her
kitchen (she seemed to think they broke in); the man who came home after
working the night/weekend shift to find his home ransacked and his guns
missing...he said on camera, "They didn't even leave a note telling me what
was going on." The military-looking cops cutting down peoples' shrubs
looking for evidence; the other man who said he couldn't believe they'd
"take" his guns after he consented to a search; the look of terror on
neighbors' faces not from the perpetrator of the crime but from those sworn
to serve and protect! That attitude was so prevelent among neighbors that
the newspaper I linked
(historically rabidly anti-gun) was forced to cover at least some (they
still missed the boat by a wide margin) facts about the gun grab.

Nope -- it's for real. Unless we put on the George Orwell glasses and do a
classic "Un-think."
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07/22/04 Fourth posting from WI Gun Owners (summary of local TV newscast)
[10:28:08]:

Reporter Mark Leland interviewed Terry Wesner, a neighbor who reported early
on the police entered his home WITHOUT a warrant and seized his guns.
Tonight, Wesner said police returned the guns (ohh, apparently the man
wasn't guilty, oh
well) BUT police "acknowledged a lack of proper procedure [in not obtaining
a warrant]."

Wesner said, according the report, police offered an apology and he wasn't
going to press charges. Wesner did say: "They're [the police] are not going
to come in my home again [without a warrant]." Source: Fox 11, WLUK-11 at 9,
Green Bay, Wisconsin.

Contact information --

Corey Graff, Executive Director

Wisconsin Gun Owners Inc.
P.O. Box 338
Green Bay, WI 54305

http://www.wisconsingunowners.org
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Sgt. Bob, you nailed this on the head:

"Is it SOP to evacuate six block areas when a cop is wounded?
How about when a civilian is wounded?"

Excellent, excellent point.
 
He declined to say on what grounds officers had the right to remove the firearms, though.
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Well he had nothing he COULD say, because there were no grounds. Doh!
Or actually what I should say, if there was reasonable suspicion that a particular gun was used in the crime, a proper warrant should have been obtained to seize the property, consistent with the 4th amendment. In the absence of that we have a 'color of law' seizure of property/4th Amendment
Violation. But what the hell, its 'for your safety' ;)


Can anyone say 18 USC 242?

http://www4.law.cornell.edu/uscode/18/242.html

Sec. 242. - Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death
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Hell I'm surprised that didn't take DNA samples from the whole neighborhood as well ;)
 
Want to know one of the things that furthers the anti-LEO mindset? LEO actions such as yours here. There's a time to defend the actions of the police and there is a time to say something is over the top. This is an example of the latter and your "piling on" to defend it simply reflects an even worse light on yourself and your profession.
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2nd Amendment,

You are absolutely right.

LEO actions and reactions that may or may not be legal, but are not "right" - and the defense of such here or elsewhere has changed many a person's perceptions of LEO's.

The "minority" communities have talked about this stuff for YEARS. It/they exist and ought to be dealt with.

BTW, what kind of neighborhood did this take place in?


BB62
 
Say AZRickD I said in a few post with the bill 218 going through this will be just the start. When the goverment comes to get your guns and the day is coming the LEOs will the ones who will knock on your door we have made a special class of so they can carry anywhere. Here in AZ you can't legally carry in 98% of the restaurants but a retired LEO from out of state could. You live in Illinois or Wisconsin you can't carry but they can even if not from your state. This is just the beginning of things to come.Wouldn't this have to be the first step in a police state????????????? To do away with the 1st amendment you have to do away with the 2nd first.
 
OK.

After seeing the quotes from a news source--and apparently the individual affected---

1. Search each home? You could probably argue exigent circumstances to ENTER the home--but NOT to conduct an intrusive search. They balled that one up good. Even if they somehow FOUND the crime gun in this ham-handed method, it just became so much pot metal.

Apparently, someone forgot the "fruit of the poisonous tree" doctrine.

2. Seizure of property, not contraband or illegal, without a warrant?

I feel sick at heart for the victim. But I think he does not have too much to worry about.

After lawyering up with some of the most bloodthirsty advocates he can find--even on a contingency basis--he, and the other residents affected will be able to afford plenty of new guns with the settlement.

And, the idiots that conducted the seizure should have their badges seized, get fired, and forbidden to carry anything other than a water pistol for the rest of their lives.

What a bunch of MORONS!!!

If this plays out the way it was written, it flies in the face of EVERY THING that is pounded into your head from day one at any Academy worth its salt.

A sad, sad day for law enforcement. :(
 
Well, at the end of the day, the cops on the scene had reason to believe that a suspect ran into that area and whether you like it or not, the USSC has reuled again and again that under circumstances such as those, the exigent nature of the situation allows the officer to go into any building that they believe the suspect may be hiding in. It is just that simple. So, no, there will be no successful suits and nobody will get fired or even reprimanded. When you are chasing a suspect, you chase him to wherever he goes and the courts have upheld that principal time and again...
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Can you provide us with citations defining exigent circumstances as applicable to any residences within a 6 block area please? And if so, how that would meet the "reasonable person" standard?

If you in fact are simply defending the warrantless entry of one or two homes by police officers in fresh pursuit, then please say so, but it looks an awful lot to me like you're tring to defend the warrantless search of an entire neighborhood - and if that's the case you're not doing LEO's any favors with your argument.
 
=whatever we say it means
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Well I'm sure that some (although certainly not all, and I don't even believe the majority) police officers, would like for it to mean 'whatever they say it means', but fortunately that is not the case.

Exigent circumstances is defined by US v McConney as 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.'.

That might have been the case here in one or even several searches, but I don't believe warrantless searches on an entire neighborhood of homes looking for one or two suspects with nothing more than general geographic proximity as cause will come close to meeting that definition.
 
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see by some of the post here that I really believe 218 is just the start of things to come. Soon a police state Guess who will be going in your house to get your guns
 
If you don't like living in a civil society with law enforcement, feel free to move someplace like oh.....the Sudan. You could try practicing what you preach and fending off crime all by yourself without those annoying LEOs coming to help. After all, you would be able to get class 3 and live in the paradise that so many people on here seem to seek where there aren't any of those pesky LEOs to harass you...but then again, most people over there don't live long enough to worry about harassment.
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the USSC has reuled
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If you really want to play that game, the USSC has ruled that cops aren't responsible for protecting citizens. You can rant all you want about people not protecting their own households unless they move to some 3rd world ?????hole where cops are the judges and executioners, while at the same time not letting a 911 call interfere with your coffee break so that by the time you show up at the crime scene, a crime has already been committed, boddies will have to be wheeled to the morgue, and you still don't have a suspect in custody.

Sorry, Homey don't play dat!:fire:

Once again, stick to enforcing laws, not making them up as you go.
 
Why do "rules" always come up short - or too "long", giving a nebulous amount of power?

Here in the USC quoted everything but the kitchen sink is covered - except the use of drugs - a gaping hole in the protection intended.
Can anyone say 18 USC 242? I've added (in red) possible coverage.

http://www4.law.cornell.edu/uscode/18/242.html


quote:
--------------------------------------------------------------------------------
Sec. 242. - Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, or chemical or biological agents whether medically administered or in medical dosage, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
--------------------------------------------------------------------------------
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An example of potential nebulous amount of power, the "prevent physical harm to the officers or other persons" (hi-lited below) allows many open doors; for instance, the millions of guns existing in the U.S. suggests a ratio of some calculation respecting the real estate. In the case of six square blocks, a "reasonable person" would expect that one in four(?), one in three(?) buildings/apartments/rooms, would contain a gun. This surely would provide the trigger for "prevent physical harm to the officers or others persons" power. We have recently seen this open door of officer protection extended to vehicles. I am concerned that too much power has been granted (if not just assumed).

I must also ask about the "of other persons". I'm of the understanding that police have no responsibility to protect individuals (unless the persons are under some official status).
Exigent circumstances is defined by US v McConney as 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.'.
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Comments?
 
what I dont understand is...an officer got shot by perhaps a handgun?so why did the police seize other types as well and why from different homes?

the bit about the elderly lady waking to find swat in her kitchen..perhaps that suspicously looking cookie jar has something contraband in it.nice...they musta just let themselves in.....maybe they were hoping the lady will sleep right through it and not even notice they were there?

kinda nice using the search for a suspect to run on an entire bunch of private residences and seize things,isnt this exactly why the constitution was written?..oh,nevermind...thats not such a big deal.

im sure once it has been exposed to the public scrutiny or the media takes the story...it isnt going to look good.










I am concerned that too much power has been granted (if not just assumed).
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got that one right on the nose.
 
They have a suspect.

Investigators in Oshkosh are asking the public for help to find what's being called the "critical" piece of evidence in the shooting of a police officer.

Police distributed fliers to people who live in the area of Saturday's shooting, asking them to search their yards and other property for the bullet that struck Officer Nate Gallagher.

Gallagher was shot while talking to another officer outside his squad car after responding to a report of underage drinking. The bullet went through his right arm.

Police scoured the area with metal detectors, and we even saw officers searching the ground on their hands and knees Monday, to no avail.

"I think there's a possibility out there that a vehicle drove over it, got embedded in a tire, deposited it a little bit further, somebody walked by, picked up something, was kind of looking at it, then discarded it as they walked away," Sgt. Steve Sagmeister said.

Police say it's also possible the bullet could be lodged in one of the dozens of trees in the area.

If you find the bullet or fragments, or damage from a bullet or ricochet, DO NOT TOUCH IT. Call police.

The police don't have much of a case against the person who's considered the prime suspect in the shooting. Invesigators say they're confident the shot was fired from the home of Mark Jungwirth. Three rifles were confiscated from his home.

But without the bullet, the district attorney says it can't be proven what gun fired it. Then the shooting would probably end up in an "unsolved case" file.

People in the neighborhood say there is a strong willingness to look for that bullet.

"This afternoon I will go around and start looking for the bullet in my yard or if it did any damage to my house, so just to help out the police department," Hicham Medroum said.

The police department's plea for help wasn't helped when a street sweeper moved through the neighborhood Thursday morning. Police quickly ordered the sweeper out of the area.
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I looked the name up on the Circuit Court Access page to see if the name matched anyone sent thru the court system. One of the matches belonged to a guy with some drug convictions. Another had some traffic issues.
Public Case Search (the link may not work)
 
Let's keep on topic here: The overriding offense is that police appear to be throwing the presumption of innocence out the window completely.

Let's see your doctrinal dissertation on that topic, please.

Punk runs into neighborhood, therefore the constitition goes with it -- to "protect" everyone from themselves. So everyone in the neighborhood is GUILTY UNTIL PROVEN INNOCENT by virtue of where they live.

The searches begin. The seizures begin. The dogs bark.

And grandma's cookie jar gets raided.

Since everyone is guilty of the crime until proven innocent, that would also include the police themselves, no? Perhaps the good citizens of this quiet little town ought to demand to search the gun safes of the police force!

Afterall, if they don't consent, then, what do THEY have to hide?

Of course, if they don't consent, also, that must mean they REALLY are guilty.

So then we get a warrant.

This is tyranny.



Corey Graff, Executive Director

Wisconsin Gun Owners Inc.
P.O. Box 338
Green Bay, WI 54305

www.wisconsingunowners.org
 
I think you are misunderstanding the position of most LEOs about open carry. I never said it was in any way morally wrong to do it, I said it is retarded from a tactical standpoint and that it attracts unwanted attention from both the sheeple and the criminals. It has no advantages unless you are trying to make some sort of statement (Guns are like bombs, they should not be used to make statements or express oppinions) or in the case of the guys I know that open carry...they just want everybody to know they have a gun bc it is "cool". You won't see a lot of LEOs open carry off duty bc we know what a huge disadvantage it is. You constantly have to worry about retention and where you sit, how your gun is situated to the public walking by your table, it bangs on doorways, people stare. etc. Concealed, the gun only comes out for one purpose and until then, the carrier has the advantage of suprise which is key to winning any fight, whether it is with a gun, fists, or any other tool.
 
. . . whether you like it or not, the USSC has reuled again and again that under circumstances such as those, the exigent nature of the situation allows the officer to go into any building that they believe the suspect may be hiding in.
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So . . . the cops believed the suspect - singular - was hiding in every house in the neighborhood? Funny, I thought court rulings have been made such that if chasing a suspect, upon seeing him run into a building, the cops could continue their pursuit. Or something of the sort. Not carte blanche to suspend the 4th Amendment wholesale.

By your logic, if a suspect disappears into, say, Chicago, the Chicago PD could search ALL the apartments, ALL the homes, ALL the condos, EVERYTHING with no warrant . . . sorry, but I don't think we've sunk this far.

Yet.

What makes this more disturbing is the apparent meek acquiesence by almost everyone in a six block area to the cops' demands. I'd comply with a valid, legal warrant, but if Barney Fife just shows up and says "Lemme In" . . . uh uh.
 
The LEOs did NOT enter every house.

The LEOs did not seize evidence from every house, only 2 of them. What type of evidence, whether it was a gun, bloody knife, clothing, etc. is not relevant as the legal standard for seizure is the same for all of them. Nobody was searched for "Refusing" to consent and nothing was taken without probable cause in accordance with the Constitution and the laws of that state. Stop the knee jerk reactions aka, OMG, the JBTs are seizing everyone's guns. It isn't so. There are two sides to this and thus far, all we seem to hear is the side from the folks that may very well have been accomplices to the crime...for Pete's sake, the shot was most likely fired from one of the houses entered!

If you are going to bash the cops for chasing an attempted murder suspect, get it straight.
 
FedDC,

Could you please enlighten us as to the specific law which grants you as a police officer the authority to cordon off, evacuate and search - WITHOUT a signed warrant - a 6 block radius for ANY crime, much less something which could end up easily being an accident?

Additionally, please explain why such a response only appears to be warranted when a LEO is harmed, yet had the same thing happened to a "civilian", the LEO response would have been to merely take a report and go on.

Even the information we do have is indefensible. Police are NOT some superior class of people. "Civilians" do not answer to the police. Under NO circumstances is it acceptable for an officer to enter a home on the mere suspicion a criminal MIGHT have gone in that general direction. Confiscation of ANY firearm without a warrant was illegal - especially ones which could not possibly have been used in the crime.

Until the law enforcement community in general remembers exactly who answers to whom, we are going to have issues.
 
Eric-

Lose the inferiority complex and grow up. It doesn't matter if it is a cop that got shot or not. Those officers that rescued the 4 missing kids this morning didn't do it bc of any association that the kids had with LE, they did it bc they go to work to make the world a better place.

As to citing a bunch of laws and giving you a general education on legal issues, go to college. Study law for 5 years like I did and follow it up with 6 months of police academy and several; years on the job in and out of a courtroom, then feel free to tell me what the laws are in relation to search and seizure...but wait--- The officers only searched a couple of houses, not every one for 6 blocks so your argument is BS on its face. Better luck next time.
 
I can't believe this happened in Oshkosh, WI. I can't believe the police can get away with ???? like that!! There are going to be some serious lawsuits over this one. I hope the police loose some major cash.
 
Evacuated is not Searched. Bullets could easily travel that far.

I can see an alternate headline:

"Ploice fail to evacuate Citizens to safety before gun battle breaks out leading to death of small child"

Which is better, to be evacuated prior to a gunfight, or to just watch CNN while rounds come into your house...
 
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