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Thread: Freaking state appealing this case - 4th amend case brake lite out - Scotus

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    Freaking state appealing this case - 4th amend case brake lite out - Scotus

    http://www.aoc.state.nc.us/www/publi...12/380PA11.pdf

    Dude driving around w/1 brake light out ... cop pulls him over. Finds coke.

    Well, the law allows one to drive w/1 brake light out ... so cop misunderstood the law.

    And likely a 100% honest mistake IMO.

    App. Court ruled "too bad" ... bad stop = bad stop ... 4th amend. violation without actual RAS/PC to stop.

    Now NC wants to get this guy sooo bad that they are willing to let bad case law be made. And it will be made IMO.

    After SCOTUS rules in the state's favor ... then the 4th amend has no meaning whatsoever...now cops can stop you for any or no reason .. "oh, I thought that this was against the law" argument would prevail.

    SCOTUS loves to make bad law on drug cases ...

    get ready ...

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    I am not sure this will be appealed beyond the NC Supreme Court. The video showed the brake light did not light as required. The occupants talked to the officer and gave conflicting accounts for their destination. They then consented to a search. Lesson learned only answer if necessary and do not consent to a search.

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    Campaign Veteran skidmark's Avatar
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    Cop made a stop and when he finished his business he asked if he could search the vehicle. Both the driver and the passenger/owner said yes. Case closed.

    If you have nothing to hide they have no reason to be looking for it. If you have something to hide why would you let them look or it?

    Name, rank, serial number and "I want to speak with a lawyer". SCOTUS has said that is all you need to say (and do not need to say the first three in states that do not have mandatory ID laws*).

    stay safe.

    * - you may want to go ahead and give them your ID rather than sit in a jail cell as a John Doe waiting to see if they can match your fingerprints. YMMV.
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    So, cops can stop people for no lawful reason?

    Detain/arrest them for no unlawful reason?
    Last edited by davidmcbeth; 04-22-2014 at 03:11 PM.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    So, cops can stop people for no lawful reason?

    Detain/arrest them for no unlawful reason?
    Not that I need to reply to that directly. But even when improperly stopped/detained/arrested (See, I used all three possibilities) if you consent to a search after the stop/detainment/arrest is terminated, you deserve every last thing you get.

    I am deeply disappointed with you davidmvbeth. Usually you are annoying at a much more sophisticated level. This plunge into sophomoricism does not speak well for your ability to totally miss the legal point.

    stay safe.
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    Campaign Veteran marshaul's Avatar
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    While I understand where Skidmark is coming from, I object.

    It's clearly impossible for the police to meaningfully have the consent to search of a person possessing contraband. No person ever agrees to being arrested for contraband, and yet this is the likely result of agreeing to a search when contraband is present. Therefore we must conclude that any permission to search given when contraband is present is coerced via intimidation.

    (If you doubt my claim, let's play a little game, by imagining how much "consent" officers would see were they required to make a Miranda-like speech in order to ask permission to search: "May I search you? Be advised that you have a right to refuse this search. Anything we find can and will be used against you in a court of law.")

    If a guilty person wishes to confess to a crime, that's one thing (such may arise from feelings of guilt, or a plea bargain). But the legal standard should be to refuse any supposed "consenting" to a search as inadmissible. The present standard normalizes a legal fiction: that folks who fail to adequately assert or understand their rights are "consenting" rather than obvious victims of intimidation and coercion.

    Incidentally, in case anybody is planning to do so, claiming these unequivocal victims "should know better" or "should be more assertive in defending their rights" is precisely identical to blaming the victim of rape because he/she didn't say "no" after there was already a gun in his/her face, and I won't play.
    Last edited by marshaul; 04-22-2014 at 06:05 PM.

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    Quote Originally Posted by youngck View Post
    I am not sure this will be appealed beyond the NC Supreme Court. The video showed the brake light did not light as required. The occupants talked to the officer and gave conflicting accounts for their destination. They then consented to a search. Lesson learned only answer if necessary and do not consent to a search.

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    http://www.supremecourt.gov/Search.a...les/13-604.htm

    Cert granted...

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    Regular Member Fallschirmjäger's Avatar
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    You just gotta wonder, was it these guys first time transporting contraband or did they not know they had drugs in the car?

    I just can't imagine anyone who knew they had something illegal, or that there was evidence of illegal conduct willingly giving consent to a search. Oh, to be a fly on the wall or have an audio recording of this 'consent'.

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    Quote Originally Posted by marshaul View Post
    While I understand where Skidmark is coming from, I object.

    It's clearly impossible for the police to meaningfully have the consent to search of a person possessing contraband. No person ever agrees to being arrested for contraband, and yet this is the likely result of agreeing to a search when contraband is present. Therefore we must conclude that any permission to search given when contraband is present is coerced via intimidation.

    (If you doubt my claim, let's play a little game, by imagining how much "consent" officers would see were they required to make a Miranda-like speech in order to ask permission to search: "May I search you? Be advised that you have a right to refuse this search. Anything we find can and will be used against you in a court of law.")

    If a guilty person wishes to confess to a crime, that's one thing (such may arise from feelings of guilt, or a plea bargain). But the legal standard should be to refuse any supposed "consenting" to a search as inadmissible. The present standard normalizes a legal fiction: that folks who fail to adequately assert or understand their rights are "consenting" rather than obvious victims of intimidation and coercion.

    Incidentally, in case anybody is planning to do so, claiming these unequivocal victims "should know better" or "should be more assertive in defending their rights" is precisely identical to blaming the victim of rape because he/she didn't say "no" after there was already a gun in his/her face, and I won't play.
    I can see your argument and agree with it.

    I have experienced police stops before and have said yes once or twice. Then I learned the law and what my rights are and I have not said yes since.

    I have had my car searched without consent before.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member DaveT319's Avatar
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    Quote Originally Posted by marshaul View Post
    While I understand where Skidmark is coming from, I object.

    It's clearly impossible for the police to meaningfully have the consent to search of a person possessing contraband. No person ever agrees to being arrested for contraband, and yet this is the likely result of agreeing to a search when contraband is present. Therefore we must conclude that any permission to search given when contraband is present is coerced via intimidation.

    (If you doubt my claim, let's play a little game, by imagining how much "consent" officers would see were they required to make a Miranda-like speech in order to ask permission to search: "May I search you? Be advised that you have a right to refuse this search. Anything we find can and will be used against you in a court of law.")

    If a guilty person wishes to confess to a crime, that's one thing (such may arise from feelings of guilt, or a plea bargain). But the legal standard should be to refuse any supposed "consenting" to a search as inadmissible. The present standard normalizes a legal fiction: that folks who fail to adequately assert or understand their rights are "consenting" rather than obvious victims of intimidation and coercion.

    Incidentally, in case anybody is planning to do so, claiming these unequivocal victims "should know better" or "should be more assertive in defending their rights" is precisely identical to blaming the victim of rape because he/she didn't say "no" after there was already a gun in his/her face, and I won't play.
    I wish I could "like" this post. I think the majority of people don't know that you don't have to consent to a search. I've told my wife if she is ever stopped and they ask to search, tell them "no". Not because we have anything to hide, but because we shouldn't enable their fishing expeditions and invasions of our privacy. If they have PC to search, then they won't ask for permission. And if they hold you to get a drug dog to fake a positive hit (I say fake because neither of us do drugs, so any alert would be fake), just bite your tongue and we'll file the lawsuit later.

    I think it would be great if cops had to advise that you have the right to refuse a consentual search. I bet most people wouldn't know they had the right to remain silent if it weren't for the Miranda ruling.

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    Regular Member Jack House's Avatar
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    I agree with Marshal, far too many people either don't know or are too scared to refuse.

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    Campaign Veteran skidmark's Avatar
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    Marshaul -

    The problem is that the courts need some place to stand. And part of where they have chosen to stand is defined by their assertion that ignorance of the law is no excuse. And worse yet, the courts have agreed that the right to be free of illegal search and seizure is a "fundamental" right - one of those that comes just by existing as a member of the human race living in a constitutional representational republic. Heck, they don't limit it to citizens but give it to everybody!

    The fact that our public edumacation system has stopped teaching "Civics" (and pretty much the history of the founding of the country) only means that knowledge of this right is not pounded into every head at an early age. Well, that and the fact that our current system seems bound and determined not to tell the little kiddies about any of those icky rights in case they get some wild notion to start exercising one or two of them.

    I'm old enough, and politically cranky enough, to hold that if you are going to be a part of this grand party (well, what's left of it) you ought to find out a few things about it regardles of whether Mrs. McGuillicuddy stands in front of the class and reads pages 34 - 58 (inclusive) to the class or not.

    As for the coersive, intimitative powers of the police - you do realize that most criminals fall into the "oppositional personality syndrome" category pretty much by default, don't you? They are the group that would douse it with gasoline just because you said they should use water to put out the fire. So when a cop says he wants their permission, pretty please, to take a look they are inclined to say "No" even if they are completely unaware of their right to be free of illegal search and seizure.

    I might pick this up later, but have to cut it short to attend to other stuff.

    stay safe.
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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by skidmark View Post
    I'm old enough, and politically cranky enough, to hold that if you are going to be a part of this grand party (well, what's left of it) you ought to find out a few things about it regardles of whether Mrs. McGuillicuddy stands in front of the class and reads pages 34 - 58 (inclusive) to the class or not.
    I've seen folks who understand their rights, in principle, buckle when pushed in practice due to a lack of confidence and experience. So it's really not as simple as this. I wish it were.

    As for the coersive, intimitative powers of the police - you do realize that most criminals fall into the "oppositional personality syndrome" category pretty much by default, don't you? They are the group that would douse it with gasoline just because you said they should use water to put out the fire. So when a cop says he wants their permission, pretty please, to take a look they are inclined to say "No" even if they are completely unaware of their right to be free of illegal search and seizure.
    Right. So, actual criminals will say "no" anyway. Which gets back to my original point about victims of police intimidation (who else is saying "yes"?).

    The importance of spontaneous (yet absent true exigency) search is overemphasized by prohibition anyway. Appropriately limited law/law enforcement really has no need to play games with the meaning of "consent" – this only comes about from the supposed need to enforce the unenforceable. I'm firmly of the opinion (not much of an "opinion", really) that the 4th Amendment was intended to make arbitrary prohibitions difficult to enforce. So it should be no surprise that we've had to water it down by creating a fantasy that folks "consent" to being arrested for non-crimes (and in a million other ways).
    Last edited by marshaul; 04-23-2014 at 09:03 AM.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by marshaul View Post
    While I understand where Skidmark is coming from, I object.

    It's clearly impossible for the police to meaningfully have the consent to search of a person possessing contraband. No person ever agrees to being arrested for contraband, and yet this is the likely result of agreeing to a search when contraband is present. Therefore we must conclude that any permission to search given when contraband is present is coerced via intimidation.

    (If you doubt my claim, let's play a little game, by imagining how much "consent" officers would see were they required to make a Miranda-like speech in order to ask permission to search: "May I search you? Be advised that you have a right to refuse this search. Anything we find can and will be used against you in a court of law.")

    If a guilty person wishes to confess to a crime, that's one thing (such may arise from feelings of guilt, or a plea bargain). But the legal standard should be to refuse any supposed "consenting" to a search as inadmissible. The present standard normalizes a legal fiction: that folks who fail to adequately assert or understand their rights are "consenting" rather than obvious victims of intimidation and coercion.

    Incidentally, in case anybody is planning to do so, claiming these unequivocal victims "should know better" or "should be more assertive in defending their rights" is precisely identical to blaming the victim of rape because he/she didn't say "no" after there was already a gun in his/her face, and I won't play.
    +1
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by skidmark View Post
    Marshaul -

    The problem is that the courts need some place to stand. And part of where they have chosen to stand is defined by their assertion that ignorance of the law is no excuse. And worse yet, the courts have agreed that the right to be free of illegal search and seizure is a "fundamental" right - one of those that comes just by existing as a member of the human race living in a constitutional representational republic. Heck, they don't limit it to citizens but give it to everybody!

    The fact that our public edumacation system has stopped teaching "Civics" (and pretty much the history of the founding of the country) only means that knowledge of this right is not pounded into every head at an early age. Well, that and the fact that our current system seems bound and determined not to tell the little kiddies about any of those icky rights in case they get some wild notion to start exercising one or two of them.

    I'm old enough, and politically cranky enough, to hold that if you are going to be a part of this grand party (well, what's left of it) you ought to find out a few things about it regardles of whether Mrs. McGuillicuddy stands in front of the class and reads pages 34 - 58 (inclusive) to the class or not.

    As for the coersive, intimitative powers of the police - you do realize that most criminals fall into the "oppositional personality syndrome" category pretty much by default, don't you? They are the group that would douse it with gasoline just because you said they should use water to put out the fire. So when a cop says he wants their permission, pretty please, to take a look they are inclined to say "No" even if they are completely unaware of their right to be free of illegal search and seizure.

    I might pick this up later, but have to cut it short to attend to other stuff.

    stay safe.
    The bolded is just that an assertion. It isn't part of common law unless the crime was mal en se. This shows how faulty the courts are.

    Also proactive policing isn't pretty contrary to liberty and common law foundlings.

    I have seen crooks with everything to hide cave to cop intimidation. I have cave years ago to it, never again. They will pull out all sorts of words and tricks over simple traffic stops, what do you think they will do when they actually "suspect" something.

    Plus I have a hard time blaming the victims for the acts of the aggressors.
    Last edited by sudden valley gunner; 04-23-2014 at 09:28 AM.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by marshaul View Post
    I've seen folks who understand their rights, in principle, buckle when pushed in practice due to a lack of confidence and experience. So it's really not as simple as this. I wish it were.
    ....
    So just how much hand-holding do we do before it becomes the Nanny State, holding our hand as we cross the street?

    Folks that understand "in principle" but "buckle when pushed" apparently do not "understand" at all. At best it might be said that they areware of the concept. Just like I'm aware of the concept of astrophysics - but have no expectation of being able to do it. We're now back to the platitude that is not a platitude: a right unexercised is no right at all.

    What you are illustrating is folks who take the route of anticipated expediency - rather than assert the right they "know" they have, in spite of whatever consequences it might cause, they decide to take the chance that giving in will not result in some adverse consequence like being jacked up, arrested, jailed, convicted, and/or some other undefined "thing". I find it difficult to believe there is a person of legal age in this country that has not heard or read about someone being the victim of the police/criminal justice system because they gave in and allowed a search when they did not haver to. Heck, it's one of the main themes of TV and the movies!

    As much as the vast majority - at least in my jaundiced world view - are willing to give up rather than stand up, they are going to continue to get jacked up. One day there will again be enough folks that are tired of having that happen to themselves, their friends, and other folks who live here. Hopefully when that time arrives the government then in place will listen to the petitions for redress of grievances instead of rejecting them out of hand.

    stay safe.
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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by skidmark View Post
    So just how much hand-holding do we do before it becomes the Nanny State, holding our hand as we cross the street?
    How much respect for liberty is required to not tolerate the state trampling over it on the absurd justification that to do otherwise would constitute "hand-holding"?

    I told you I wouldn't play the blame-the-victim game.

    It's one thing to fuss over whether the citizenry are engaged enough with their rights in a general context, but to do so in the context of specific violation of rights is another thing altogether.

    It does seem to me there may be a bit of is/ought going on here; I agree that folks really need to be prepared to assert their rights. You'll never convince me, however, that being unassertive ought to be sufficient justification for the state to deprive one of right.

    We're not talking about what people do for themselves, where it might be worthwhile to bloviate on personal responsibility. We're talking about what the state does to people, and I for one won't forget that niggling detail.

    To put it another way: what you describe as "hand-holding", I describe as tactically acquiescing government overreach on the basis that the weak and ignorant deserve it anyway.

    Quote Originally Posted by skidmark View Post
    Hopefully when that time arrives the government then in place will listen to the petitions for redress of grievances instead of rejecting them out of hand.
    No, you see, you have to be assertive for that. And then they just slap you with a brandishing charge.
    Last edited by marshaul; 04-23-2014 at 11:07 AM.

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    For Skidmark: Amen

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by marshaul View Post
    How much respect for liberty is required to not tolerate the state trampling over it on the absurd justification that to do otherwise would constitute "hand-holding"?

    I told you I wouldn't play the blame-the-victim game.

    It's one thing to fuss over whether the citizenry are engaged enough with their rights in a general context, but to do so in the context of specific violation of rights is another thing altogether.

    It does seem to me there may be a bit of is/ought going on here; I agree that folks really need to be prepared to assert their rights. You'll never convince me, however, that being unassertive ought to be sufficient justification for the state to deprive one of right.
    Really, now? "The State" is depriving these folks of their rights? Or would it be more accurate and appropriate to say that The State agrees that when you fail to assert your right, or even worse give up your right for the sake of convenience and to "avoid confrontation" you get the logical consequences? It's been a lloong time since Sir Robert Peele and his Nine Principles were the guiding lights of police work. We (yes, you, me, and all the rest of us) have purposely and intentionally turned the police into a paranoid force that would rather support the existence of "the thin blue line" than pass laws criminalizing the sorts of things you are complaining about. Right now it's not against the law* to violate someone's rights - it's merely a civil tort that can be corrected by having the courts make the taxpayers (as opposed to the offending officers and their supervisors) pay off a blood feud.

    We're not talking about what people do for themselves, where it might be worthwhile to bloviate on personal responsibility. We're talking about what the state does to people, and I for one won't forget that niggling detail.

    To put it another way: what you describe as "hand-holding", I describe as tactically acquiescing government overreach on the basis that the weak and ignorant deserve it anyway.
    Were I to dignify that with a response, I would choose cream pies at six feet.

    No, you see, you have to be assertive for that. And then they just slap you with a brandishing charge.
    Yes, they did. And as much emotional and financial pain as I went through I was prepared to see that at least the offenders themselves were made aware that doing so was clearly a violation of an established right. That's where I can be distinguished from those others you are so concerned about. They are not willing to ensure, so much as they are able, that their right is not lost for failing to object to its violation when and where the violation occurs. It does not make me a hero. It does, however, suggest that they are something less. And if someone wants me to stand up for their rights - theirs, not mine; I can see to my own by myself thank you very much - when they will not do it for themself then they need to be prepared to pay me for performing that service. If standing up for my rights has the serendipitous effect of protecting the next guy to come down the road then that's just gravy, isn't it?

    You want the existing dynamic to change because it should, without making the survival of the existing dynamic a personally costly endeavor.

    stay safe.

    * - presently it is a violation of 18 USC 242 http://www.law.cornell.edu/uscode/text/18/242 ".... 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." I cannot find an analogous Virginia statute. http://leg1.state.va.us/cgi-bin/legp...10000000000000
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  20. #20
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by skidmark View Post
    Or would it be more accurate and appropriate to say that The State agrees that when you fail to assert your right, or even worse give up your right for the sake of convenience and to "avoid confrontation" you get the logical consequences?
    The state is not (or should not be) in the business of delivering "logical consequences" for what you see as weak, but is otherwise nonaggressive behavior.

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    Quote Originally Posted by marshaul View Post
    The state is not (or should not be) in the business of delivering "logical consequences" for what you see as weak, but is otherwise nonaggressive behavior.
    This is true, however because people have a right to remain silent etc, they also have a right not to be silent etc. The state does not deliver consequenses, for being week. The person who decides to waive a right suffers whatever consequenses by their own decision... even if the decision is made out of ignorance.

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    Quote Originally Posted by Jack House View Post
    I agree with Marshal, far too many people either don't know or are too scared to refuse.
    Well criminals are not geniuses ... right?

    Perhaps, like Miranda warning, to the effect of

    "May I search your ___ (vehicle, house,etc)? You may say no and nothing negative can happen because you saying no. If you say yes then anything we see, hear, smell, and find may be used against you to convict your of a crime and put you in prison for the rest of your life or to possibly end your life via execution if warranted"
    Last edited by davidmcbeth; 04-23-2014 at 05:05 PM.

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    Regular Member Jack House's Avatar
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    Quote Originally Posted by skidmark View Post
    We (yes, you, me, and all the rest of us) have purposely and intentionally turned the police into a paranoid force that would rather support the existence of "the thin blue line" than pass laws criminalizing the sorts of things you are complaining about. Right now it's not against the law* to violate someone's rights - it's merely a civil tort that can be corrected by having the courts make the taxpayers (as opposed to the offending officers and their supervisors) pay off a blood feud.
    So it's the taxpayer's fault the police trample rights but the tax payers shouldn't flip the bill for it?

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    Clearly another example of why a person should never agree to any searches or seizures without a warrant signed by a judge.. And again keep you're mouth shout during traffic stops and or all encounters with leo's

    The not so bright defendants in this case simply should have thanked the kind officer for pointing out the safety issue concerning the burned out brake light.. Then insist that they simply want to continue on their journey.

    In this case the fruit from the poisonous tree was handed to the State via citizens stupidity.

    Reserve you're rights during any and all encounters with any Government personnel, for, what they may not know, may in fact hurt you, if you do not know and exercise your rights.

    MY.02

    CCJ
    " I detest hypocrites and their Hypocrisy" I support Liberty for each, for all, and forever".
    Ask yourself, Do you own Yourself?

  25. #25
    Campaign Veteran skidmark's Avatar
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    Jan 2007
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    North Chesterfield VA
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    10,682
    Quote Originally Posted by Jack House View Post
    So it's the taxpayer's fault the police trample rights but the tax payers shouldn't flip the bill for it?
    You di'nt go there, did you?

    Your comment distorts my post, and it seems that you distorted it purposely to try and make it seem as if I was blaming the taxpayers for the behavior of those few who do not follow the rule of law when enforcing the laws.

    IF there is any blame to the taxpayers, it is that they are not demanding that their elected representatives and those their representatives hire to carry out the purposes of government make the line employees abide by the law. Screw the unions - when it has been shown that a cop violated someone's civil rights in a way that the courts have already ruled is a clear violation of rights, those elected representatives should be telling the folks they hired (Chief of POlice, I'm looking at you) to either fire the cop or get fired and replaced with someone who will fire the cop.

    That the taxpayers would rather just keep shoveling money into that pit is a completely different issue.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

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