posted on March 7, 2001 10:25:24 PM
You're drawing a fine line here. If you are looking to the Fourth Amendment as a basis for your contention, I'd have to research actual case law to counter or agree with your position. My understanding of the law leads me to believe that a person can rightfully expect to be free from unlawful searches of their home and their bodies. A shopping cart in a public place does not appear,IMO, to qualify for this reasonable expectation of privacy. Reasonable suspicion and good faith are often deciding factors, even for civilans.
If this case were to be taken to court, a ruling in either parties favor may have resulted. It is also possible that a contrary ruling could be issued at a later time. It would be my expectation that a court would find for the store.
I'll allow that you've made a point and that you would have a case, albeit a shaky one. I'll also grant that your reputation as a master baiter remains intact.
posted on March 7, 2001 11:00:18 PM
Actually, Zazzie, I was saving that for later. Now that it's out there, that test of reasonableness was flunked by the merchant, or in this case the merchant's employees, by the fact of the abusive nature through which it was performed. As I said earlier, detention pending investigation by persons trained both in doing that and in the scope of individual protections (i.e. the police) would be reasonable. But this invasion by authoritative persons who actually lack due authority is not. This is not simply a shopping cart in a store; it is a part of the individual's property once purchased. A store may have a person at the door to confirm the contents of shopping bags by perusal of the receipt for payment; it may hire trained security personnel to handle any such situation until the arrival of the police; but it steps into dangerous ground when it has it's various no doubt youthful and untrained employees descend upon an individual and rip asunder the person's property or in any way accost the person with anything but the civility which is due the person in his or her standing as a free individual.
Your (intentional) demonstration of your learned vocabulary was (is) impressive. However, your bombastic display of borrowed words is quite nonsensical, somewhat graffiti-like, and does not accord all readers a fundamental, acceptable, and coherent articulation of facts and of your opinion.
As a veteran law enforcement officer, I suspect that you might have a professional flaw that a layperson might not detect; a flaw that is intellectually produced but is (also) as oppressive, abusive, and bigoted, as from an officer whom (simply) is emotionally intolerant, ignorantly bases his or her actions and reactions on the status of the citizen, ignorantly bases his or actions on his or her personal status, deliberately ignores the law and the rights of certain people by personal selection, and is too quick with the stick.
Your seemingly condescending attitude indicates that you might, consciously or unconsciously, serve and deal with the people in your community with a “Holier than thou” belief and manner, and that you must force yourself to appropriately interact and assist someone that does not meet your intelligence and lifestyle criteria. If I am correct, many citizens you personally deal with, or in some other manner are able to affect the outcome of their problem or their future, are being maltreated.
An officer’s role is to (unbiasedly) assist, ascertain, and direct. It is also proper, and common, for an officer to enable (certain) matters to be resolved between involved parties in a non-judiciary setting and manner. It is never acceptable for an officer to believe he or she is judge and jury.
Krs is correct, a violation of a person’s civil rights does not necessarily require a police officer to be involved to validate the offense. Civil rights, although set out in various ways and laws, remains the same. A law enforcement officer (just) has more pitfalls to avoid, and some of the disciplinary consequences are different, additional, and designed for police officers only.
RE: "My understanding of the law leads me to believe that a person can rightfully expect to be free from unlawful searches of their home and their bodies."
Not correct!
"The right of the people to be secure in their persons, (AND) houses, (AND) papers (AND) effects,
...against unreasonable searches and seizures, shall not be violated,
Does not say, "shall not be violated by law enforcement officers only."
...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."
I do not read where providing reasons and grounds for a search warrant, and the obtaining of a search warrant, is restricted to a law enforcement officer.
Non-law enforcement citizens do instigate and provide probable cause for the issuance of a search warrant for personal reasons regardless the seized property may also serve the interest of the police and the law.
I often had “civilians” swear to the accuracy and validity of a search warrant affidavit based on his or her complaint and what he or she witnessed and knew, and place (their) signature on the document.
Obviously, it does not require much explanation why the warrant would be executed by police officers.
posted on March 8, 2001 02:38:22 AM
I was somewhat confused as to what "Reasonable suspicion and good faith are often deciding factors"
might mean to a police officer, xardon. Is 'reasonable suspicion' a normal state of mind, in your view?
posted on March 8, 2001 04:30:59 AM
You Go Girl! Congratulations on your new microwave.Your good karma is working!
Since any other advice is now moot, I just want to add that in an incident like this or one invoving pushing or shoving someone, it doesn't matter how many lawyers they have unless you really intend to follow it thru to a lengthy end. Most of the time when they know they are in the wrong, they want it settled quickly and quietly. It's the bad publicity they want to avoid!
posted on March 8, 2001 10:16:57 AM
A coup de'grace:
Xardon’s statement, ”Reasonable suspicion and good faith are often deciding factors...,” is (somewhat) correct but misapplied pertaining to search and seizure, with a search warrant or without a search warrant.
Unless xardon can show me case law that has upheld that reasonable or mere suspicion is Constitutionally sufficient to affect a warrantless arrest, perform a warrantless search, or acceptable to obtain a search warrant, I cannot concur with his statement.
I believe he is intermingling, though the grounds are incorrectly stated, what is meant to assess whether an officer temporarily detained or arrested w/o warrant within the Constitutional parameters.
The courts have (generally) upheld, that a temporary detaining or a warrantless arrest, even though the defendant might be released later, by the officer or by the court, is Constitutionally valid if an officer(s), acting in good faith and in a prudent manner, reasonably believed (has reasonable grounds/probable cause) that an offense has been committed or is being committed, and that the person to be temporarily detained or arrested is the person who has committed or is committing the offense,
Reasonable or mere suspicion or belief has never been judicially acceptable to perform a warrantless search and seizure, or to obtain a search warrant.
Regardless an officer was acting in good faith, if any aspect of a warrantless search, or any part of the information provided to obtain a search warrant, is later found to be erroneous or flawed, the warrantless search will be deemed illegal, and in a case where a search warrant was issued, the warrant will, most likely, be found to be tainted. In both situations, all evidence seized pursuant to the illegal (warrantless) search or the execution of the search warrant, will be thrown out.
posted on March 8, 2001 10:27:45 AM
AS I grow older, Mike, my ability to gladly suffer fools and poseurs has become seriously impaired. I regret any inconvenience this has caused you.
I do not understand why you have become upset and (evidently) have lost your composure.
You have (now) deemed the exchange to be tedious and have digressed to making (personal) pejorative remarks, only.
I thought the debate was a good debate and might be informative to some readers who might be interested in discovering what their Constitutional and civil rights are, how their rights are protected, and (maybe) be able to reasonably ascertain, in the future, if someone has possibly violated, or is about to violate, their Constitutional rights and protection.
If you have a counter-argument, state it. You should not believe that you have the right to have the last word if the last word has not yet been said.
If I, or anyone, provide a rebuttal to something you have said, and you do not agree, or know the facts to be different, say so. Don’t just throw rocks from a distance and then run away.
I have to agree with Mike. You freely entered into this exchange and could perhaps offer a perspective different from a generalized view. You have done that, to a limited extent, but when questioned as to the meaning of your words you have resorted to calling first myself and now Mike several less than complimentary names as well as using innuendo to expand your derrogatory statements while hoping to seem not to be doing so.
Goodness knows that over time I have been questioned upon several points by you, to which I've responded as best I can without feeling a need to call you a master baiter or a pretender, or other things.
posted on March 8, 2001 11:53:32 AM
It would take much more than a chatboard debate to result in a loss of composure on my part. What I have done is removed myself from pointlessly continuing a circular argument. If you choose to educate anyone who may be interested of their personal rights, you do not need my participation to do so.
What I assume most people find fascinating about this thread is not the revelation of engrossing nuances of constitutional law but rather an understandable interest in the spectacle of a potential meltdown.
I do not find it fun to split hairs nor do I enjoy cutting, pasting, or quoting out of context to score meaningless points. I prefer spontaneous conversation to painstaking research and documentation. To continue in the manner you seem to prefer would be too much like work.
I like to offer my opinions on matters on which I feel I have some personal knowledge because I believe they have some value. I have 15 years experience as a patrol cop and another 10 as a Special Victims Unit Detective. I've worked as a line officer and supervisor within both. That is the basis of my opinion. I try to voice my opinions in a non-technical manner and in a way that I've come to believe most people understand.
I am entertained by this place. The occasional high-caliber repartee and badinage is very often a delight. This conversation is not providing me with enjoyment nor does it seem to serve any purpose beyond allowing you to continue your self-aggrandizing harangue.
I've said what I wanted to say regarding the topic. I do not wish to continue in the direction the thread has taken.
posted on March 8, 2001 12:33:32 PM
Officer xardon:
You have made it quite clear,
regardless of your alleged TIS, TIG, and unit assignment(s), you have (apparently) never fully acquired the knowledge relevant to your profession and necessary to serve the public in the appropriate Constitutional manner, and probably have, at times, unknowingly violated a person's rights and other judicial processes.
posted on March 8, 2001 01:23:57 PMYou're drawing a fine line here. If you are looking to the Fourth Amendment as a basis for your contention, I'd have to research actual case law to counter or agree with your position. My understanding of the law leads me to believe that a person can rightfully expect to be free from unlawful searches of their home and their bodies. A shopping cart in a public place does not appear,IMO, to qualify for this reasonable expectation of privacy. Reasonable suspicion and good faith are often deciding factors, even for civilans.
Ownership of the bags containing the merchandise as well as the merchandise itself became the personal property of Very Modern at the point in time when the cashier accepted the payment, placed the items into bags, and handed the receipt to the purchaser. After that point Wal-Mart employees had NO right whatsoever to go into her bags without her express permission. Detain her while the authorities arrived? Yes. Do a search of her personal property without a warrant or (or her permission)? No.
posted on March 8, 2001 03:26:19 PM
xardon - I am curious about something - and this is not a set-up to try to give you a hard time.
If an officer "detains" me how does that differ from an arrest?
If I tell him forget this I am out of here and march does he have any choice but to let
me go or arrest me?
And if I walk away from am officer that has not announced an arrest could I be charged with resisting arrest?
I have a real problem with some officers approuch to me. I realize I am large but that does not automatically mean I am hostile. In particular I am very up set when before there is any discussion the officer has his hand on his gun. I have refused several times to speak with an officer until he removed his hand from his weapon telling him that he was threatening me and I would not speak with him until he removed his hand from his gun. I know you won't like this but there was one time a deputy approuched me and was so angry and red in the face and his manner was so hostile and his speech was from the start yelling and angry and as soon as he was near he put his hand firmly around his gun with a good grip. I was sure that if he drew he was going to immediatly fire, and had determained that if he started to draw I would have to disarm him and probably hurt him to some degree to do so. What saved us was another deputy arriving who defused the situation carefully. All this over using a reserved parking spot. The tower chief at the airport had told me to use his spot in the evening and the deputy said he did not have the authority to let someone else use his place.
[ edited by gravid on Mar 8, 2001 04:01 PM ]
Not many people understand what arrest means. You are not usually under arrest when an officer stops to question you on the street. Unless you are definitely known to have committed a qualifying crime you would technically be in a status known as investigative detention.
An officer cannot stop you legally on a whim. There are valid reasons, however, for a pedestrian stop. The most common is that your description matches that of a wanted person. You may also be stopped if your actions are consistent with behavior the officer is able to describe as fitting a particular indicator of criminal activity. Exchanging money for foil wrappped packages in a known drug area, for instance, or trespassing on posted private property. An officer must be able to articulate his reasons for a stop and they must be in accord with the law. It is expected that a policeman will tell you the reason for the stop. If the officer cannot tell you the reason for the stop then you should be able to walk away. If prevented from doing so you'd be well advised to start making a record of everything that happens. Every policeman has a supervisor. If in doubt about the validity of a stop you can request to speak with one. If the officer refuses, record his name and badge and phone the local police number.
While in "investigative detention" the officer may detain you for a reasonable period of time. The time will vary depending on circumstances. The duration is seldom longer than the time it takes to identify yourself to the officer's satisfaction. You may be asked to accompany the officer to a police facility only under very strict conditions.
An arrest on the street, OTOH, would occur when the officer either witnesses you commit a crime or has received good information that you've just committed a crime. When placed under arrest you would be handcuffed and transported to a police facility.
You cannot be searched or frisked incident to an investigative stop unless, once again, the officer can describe a good reason for the search or frisk. Seeing the outline of a weapon in your pocket, seeing you conceal a weapon or contraband, or some other obvious concern, would be examples of good reasons.
To fully understand the specific laws in your jurisdiction I'd suggest you speak with someone from your local police department. Not all areas are alike in how they define proper police conduct. The laws relative to pedestrian stops, search and frisk procedures, investigative detention, and arrests are constantly being challenged and susequently modified.
If you feel that you have been mistreated or been subjected to a lack of proper service by the police there is always an official avenue of complaint available to you. Sometimes there is more than one. You never know who it is that may be stopping you so its usually best to comply with the officer's requests, remember as much as you can of the incident, and report it immediately. All police officers must be able to properly identify themselves as such, if they cannot they're probably not the police.
Without a lesson plan and off the top of my head, this is all that occurs to me at the moment. If I've left anything out, I'm sure it will be brought to our attention.
posted on March 8, 2001 05:00:31 PM
I've re-read your post and I see that I haven't addressed your concerns regarding the officers with their hands on their guns.
Chances are that if they have their hands on their guns they believe that you may have a weapon. If they have their guns out you can be sure that they think you have a weapon and it's time to follow instructions to the letter. Under the circumstances you described, making your hands visible and showing your palms should be all that is necessary to put them at ease. I don't believe it is unreasonable for a policeman to request that you remove your hands from your pockets or from concealment before he takes his hand from his weapon. Remember that the police have as little knowledge of you as you do of them at the outset of an official confrontation. You don't know that your description may match that of someone who just committed an armed robbery or that someone has falsely accused you of threatening them with a weapon.
posted on March 8, 2001 07:20:15 PM
Thanks for the reply. I have to think about some of this a bit. I don't think most officers want to answers questions when they have stopped you. In fact with the airport officer that I mentioned I did ask why he wanted my ID when he stopped me and it made him angry that I wanted to know the reason for stopping me and asking for my ID. I had no idea it was about the parking spot because we were well away from it. He pretty much screamed at me that he was an police officer and that he could ask anyone he wanted for their ID. I did have to yield my drivers license to him before he made known what it was about.
It probably did not help that my license had expired and he shoved it back at me and said this is a worthless document it has expired.
I said yes you are right, and waited to see what else he was going to say because I was walking not driving and I was pretty sure he had not actually seen me pull up in the car as he asked me if it was mine, so there was no way he could charge me with driving without a permit. After staring at me for awhile I guess he figured that out on his own and that is when he seemed really burned up. He said to me " I want you to move that car right now or I will have it towed." Well there was no way I was going to get back in that car and move it with an expired license so I said "OK - Do what you have to do. Go ahead and tow it." I did ask him then if there was anything else and he indicated no.
So I went in dropped the package off I had for my Mom who worked at the car rental and asked if her lot boy could run me back home because my license was bad. It was when we were walking back out to leave that he stopped me again and this time indicated that now I could not leave because he was having the car towed. That is when the other deputy came up and asked what was going on and the angry deputy explained it all to him and added that he could not get the towing company on the phone but he was determained now to make me leave the car there until it COULD be towed. The other cop persuaded him that it would be simpler just to let us go.
And he physically put himself between us ( facing the other officer not me ) which I appreciated.
I think perhaps you are a lot easier to deal with than this fellow. One day when I was in the tower they sent him out to chase a fox off the runway and he tried to shoot the fox and instead shot the engine in his Suburban with his Magnum and disabled it in the middle of the runway. That was kind of typical. Another day he did draw his weapon on a man who was argueing with him and dropped it on the man's foot and broke his big toe. The airport got sued over that one. He kinda scared me. I honestly think if he had pulled his gun he was not going to issue any instructions - I think he would have just shot me down if I did not take him out while he was fixated on getting the gun out. Sorry to say that would have probably cost him one eye and a couple broken bones. but I would have lived.
Edited to add: Actually he knew me by sight if not by name because of my Mom working there and my wife worked in the tower. I was in jeans and a t-shirt so he could not expect me to have much on me, and he would have been right - I was not carrying. He might know my Mom always carried a Charter Arms .38.
posted on March 8, 2001 08:58:14 PM
After reading your post a third time I have to say it is very useful and helps clear up my thinking a bit. I think the biggest problem was that I knew this guy and was scared spitless of him. Where I thought he was being tricky trying to get me to move the car he probably was not thinking about that at all. I was also worried excessivly that my Mom was standing about 30 yards away behind the Hertz counter and I was worried that if he drew she would probably nail him 3 times in the x circle before he could fall over. She had combat pistol skills that could make your toes curl up to witness.
posted on March 8, 2001 09:50:25 PM
Your stories never cease to amaze me, gravid. You lead a fascinating life.
The guy you described sounds as though he should be an ex-deputy rather than someone who still retains a job in law enforcement. Are you sure he's not hired security with a brother-in-law somewhere in local government?
You sound like a proud guy that doesn't take any guff from anyone. When dealing with cops, especially those that appear to be extremely irritable, it may be a good idea to let discretion carry the moment. A misconstrued reaction on your part could make a bad situation much worse.
Cops are very much bothered by complaints. To make a good complaint you have to get your facts straight. Remember the time, the circumstances, the cop's name and badge (or a good description) and try to secure the names and contact info of independent witnesses. Make your complaint directly to the internal affairs unit of the department.
No department today can afford to ignore citizen complaints or fail to take action when a complaint is founded.
I don't believe that scenarioss such as you've encountered are the norm. I think even you would agree that you do appear to be a magnet for unusual occurrences. Your anecdotes serve to suggest as much to me. As long as you use common sense and defer your indignation until you've properly assessed the situation, you should have no problems at all.
When you finish that book your writing I'd sure like to read it.
