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Thread: 4A is Officially Extinct

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    4A is Officially Extinct

    WASHINGTON – A divided Supreme Court bolstered police powers on Monday, ruling that evidence of a crime in some cases may be used against a defendant even if the police did something wrong or illegal in obtaining it.

    http://www.foxnews.com/politics/2016...cmp=latestnews
    Pay your parking tickets ASAP.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    From the link URL above
    Justice Clarence Thomas said for the court that the officer's actions were not a flagrant violation of the law. "While Officer Fackrell's decision to initiate the stop was mistaken, his conduct thereafter was lawful," Thomas wrote.

    But Justice Sonia Sotomayor said in dissent that the decision is a blow to constitutional rights.

    "The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights," Sotomayor wrote, joined by Justice Ruth Bader Ginsburg.

    In a portion of her opinion that expressed only her own views, Sotomayor also described the "humiliations" of unjustified police searches and said that "people of color are disproportionate victims of this type of scrutiny."

    Justice Elena Kagan filed a separate dissent in which she said the ruling "creates unfortunate incentives for the police — indeed practically invites them to do what Fackrell did here."

    The fourth member of the court's liberal wing, Justice Stephen Breyer, joined the four conservatives to form a majority on the eight-justice court.
    . So let's not hate on the liberal Justices.
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    Orin Kerr at SCOTUS Blog: The exclusionary rule is weakened but it still lives. LONG

    Opinion analysis: The exclusionary rule is weakened but it still lives

    Utah v. Strieff is a significant win for the police. It goes a long way toward creating an exception to the exclusionary rule for searches of persons who have outstanding warrants (which turns out to be a lot of people). At the same time, it’s perhaps less of a win than the police might have enjoyed if Justice Antonin Scalia were still on the Court.
    [ ... ]
    But what’s the evidence either way? Looking at the record in Strieff, the government could only point to a single statement relating to the officer’s purpose. In the direct examination at the suppression hearing, the prosecutor asked the officer, “Why did you stop [Strieff]?” I gather this was a question about what cause the officer had to stop Strieff; the prosecutor was trying to establish reasonable suspicion to justify the stop. The officer responded with a general statement of his motive:

    [Strieff] was coming out of the house that I had been watching and I decided that I’d like to ask somebody if I could find out what was going on the house.

    The majority suggests that this establishes the officer’s good faith. I don’t see how. According to the officer, his goal in making the stop was to investigate the case. But in the context of the exclusionary rule, the difference between “good faith” and “bad faith” is measured with respect to violating the Fourth Amendment in investigating the case, not whether the officer was trying to investigate the case at all. The Court has made clear that an officer who intentionally or recklessly violates the Fourth Amendment is acting in bad faith. The Court has also held that an officer who is trying to follow the law but through circumstances happens to miss the Fourth Amendment standard is acting in good faith. In light of this, I don’t see how a generic statement that the officer was trying to investigate the case can meet the government’s burden of showing good faith.
    [more ... ]

    http://www.scotusblog.com/2016/06/op...t-still-lives/
    Last edited by Nightmare; 06-21-2016 at 08:43 AM.
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    My tiny personal experience had the cop, with whom I was doing a ride-along, tell his dispatcher that he was pulling LPN ABC123, and dispatch responded with owner's name and address and "no wants, no warrants." Now-a-days cops often have automated LPN readers that automatically alarm on a LPN with associated wants and warrants.

    Traffic stops are now authorized fishing expeditions. My despite (the noun) deepens.
    Last edited by Nightmare; 06-21-2016 at 08:46 AM.
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    Accomplished Advocate color of law's Avatar
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    From the opinion:
    One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store’s parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence.

    As part of the stop, Officer Fackrell requested Strieff ’s identification, and Strieff produced his Utah identificationcard. Officer Fackrell relayed Strieff ’s information to a police dispatcher, who reported that Strieff had an out*standing arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant.When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.
    Detained - not meaning a Terry stop.

    Sotomayor's dissenting opinion:
    The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991).
    Strieff could have turned around and walked away, but he didn't.

    Sotomayor made clear that the 4th. Amendment is dead. I agree.

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    How can a citizen learn conclusively peremptorily and authoritatively of the existence or absence of any and all warrants?

    When I left Charleston, the jurisdiction of my friend Sheriff Al Cannon, his office held 25,000 unserved and cold warrants.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by color of law View Post
    From the opinion:

    Detained - not meaning a Terry stop.

    Sotomayor's dissenting opinion:

    Strieff could have turned around and walked away, but he didn't.

    Sotomayor made clear that the 4th. Amendment is dead. I agree.
    I say it is only dead if you let it die.

    you are left with several ways to enforce it despite his "good faith"

    he could have asked if he was being detained, at which point if the officer replied no, he could have said, then I do not consent to this encounter. and walked away, at which point the officer would have been forced to act in bad faith to pursue, and we wouldn't be reading this.

    EDUCATE THOSE AROUND YOU, let them know that most stops by LEO's require them engaging in conversation back to make the encounter consentual. they can deny this consent by stating such denial.

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    Quote Originally Posted by Ezek View Post
    I say it is only dead if you let it die.

    you are left with several ways to enforce it despite his "good faith"

    he could have asked if he was being detained, at which point if the officer replied no, he could have said, then I do not consent to this encounter. and walked away, at which point the officer would have been forced to act in bad faith to pursue, and we wouldn't be reading this.

    EDUCATE THOSE AROUND YOU, let them know that most stops by LEO's require them engaging in conversation back to make the encounter consentual. they can deny this consent by stating such denial.
    LOL. On one hand OCDO habitués make clear their despite of teachers and education, while with their cack-hand they prate "EDUCATE THOSE AROUND YOU."
    I am responsible for my writing, not your understanding of it.

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    Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so.
    Detained? Could've walked away? No, Strieff was siezed under the 4A (that don't exist anymore).

    A person is "seized" within the meaning of the Fourth Amendment if, "‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’" United States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989) (quoting United States v. Mendenhall, 446 U.

    http://www.ca4.uscourts.gov/opinions...d/115084.p.pdf
    Shrieff is guilty of not knowing the case law that permits him to walk away. The cop is guilty of demanding not asking. But, these five anti-liberty anti-c0nstitution judges don't give a rip and desire only that the state be more able to violate our individual liberty.

    Now that the 4A is gone the other four of the top five are next.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by Nightmare View Post
    LOL. On one hand OCDO habitués make clear their despite of teachers and education, while with their cack-hand they prate "EDUCATE THOSE AROUND YOU."
    thanks.. apparently I am the whole of OCDO...

    I do not like common core education, it is a sad and pathetic system so as to not "hurt feewings" however there are some really good teachers out there who have been given a crap hand dealt them through this system that they have to comply with to stay employed.

    even worse is the text books. for example, it wasn't until I was older I realized Lincoln started the civil war at the expense of state sovereignty and the right of the people to institute a new government, and that it wasn't for slavery, that was just a side effect. I also didn't know he was actually rascist.

    but I digress.

    however education does exist in plenty of history books and law books for review, and if you want your rights reinforced and not tramped on at every opportunity presented thanks to some dolt. you might want to educate the people around you through friends, relatives ETC, on how stops are sometimes consentual encounters and they can find out by asking if they are detained.

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    Quote Originally Posted by OC for ME View Post
    Now that the 4A is gone the other four of the top five are next.
    I cannot think of a better way to die than defending my home from the Third Amendment.
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    Quote Originally Posted by Ezek View Post
    I say it is only dead if you let it die.

    you are left with several ways to enforce it despite his "good faith"

    he could have asked if he was being detained, at which point if the officer replied no, he could have said, then I do not consent to this encounter. and walked away, at which point the officer would have been forced to act in bad faith to pursue, and we wouldn't be reading this.

    EDUCATE THOSE AROUND YOU, let them know that most stops by LEO's require them engaging in conversation back to make the encounter consentual. they can deny this consent by stating such denial.
    Disagree. Do not ask, simply state that you do not consent to the encounter and then turn and walk away. Let us know what happens.

    The court acknowledged that the cop demanded ID, not asked for ID, which implies to a reasonable citizen that he would not be free to go.

    In Missouri Strieff would have been under arrest. http://moga.mo.gov/mostatutes/statht...tml?&me=arrest
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    I am not inclined to train/educate cops on how not to violate the law. A "consensual encounter" is a construct of the courts at the begging of the cops. Do you always consent to be contacted by a cop.
    consent: to agree to do or allow something : to give permission for something to happen or be done
    ...consensual...pfft!
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by OC for ME View Post
    Disagree. Do not ask, simply state that you do not consent to the encounter and then turn and walk away. Let us know what happens.

    The court acknowledged that the cop demanded ID, not asked for ID, which implies to a reasonable citizen that he would not be free to go.

    In Missouri Strieff would have been under arrest. http://moga.mo.gov/mostatutes/statht...tml?&me=arrest
    I disagree with this, if you are being detained you can ask why, this places the ball in the officers court to explain his "articulable suspicion" if he replies "because i'm a police officer" or something to similar effect you can then say "okay, with all due respect officer, this detainment is, in my opinion, unlawful and i'm going to have to request my/a lawyer be present, either in person or via speakerphone on my/a cell phone, any questions asked or requests can be directed through them. "

    of course I also have the number to a lawyer on my cell ... soooooooo
    Last edited by Ezek; 06-21-2016 at 10:27 AM.

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    Quote Originally Posted by Ezek View Post
    I disagree with this, if you are being detained you can ask why, this places the ball in the officers court to explain his "articulable suspicion" if he replies "because i'm a police officer" or something to similar effect you can then say "okay, with all due respect officer, this detainment is, in my opinion, unlawful and i'm going to have to request my/a lawyer be present, either in person or via speakerphone on my/a cell phone, any questions asked or requests can be directed through them. "

    of course I also have the number to a lawyer on my cell ... soooooooo
    Ezek, as has stated numerous times by lay and kind legal folk ~ KYBMShut...

    if you engage you are encouraging and engaging the 'friendly' conversation with the nice LE..."not sure what happened, we were having a friendly conversation and EZEK immediately then demanded an attorney be present so i brought them in for further questioning to see what was going on'....

    may i help you officer...am i free to go? repeat until yes is given to the last part of the mantra...

    ipse
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    Quote Originally Posted by solus View Post
    Ezek, as has stated numerous times by lay and kind legal folk ~ KYBMShut...

    if you engage you are encouraging and engaging the 'friendly' conversation with the nice LE..."not sure what happened, we were having a friendly conversation and EZEK immediately then demanded an attorney be present so i brought them in for further questioning to see what was going on'....

    may i help you officer...am i free to go? repeat until yes is given to the last part of the mantra...

    ipse
    you can record said conversation, mo is a one party state.

    and yeah, like some officer is going to just give a yes here, you're more likely to just be arrested, probably opn grounds of failure to follow a "lawful order".

    after requesting lawyer, you invoke your 5th and say nothing. record the conversation as well this way he can't duck out and say it was a "friendly" conversation and you suddenly requested your lawyer.

    you may even have your cell out and video record the non consentual encounter. so as to show the degredation of the officer professionalism in a court of law.


    I guess I am overcomplicating the dialogue, it would be simpler to ask if detained, if yes, say I don't answer questions without legal counsel and then only ask if your free to go... repeatedly. record encounter from initiation of course if you can.
    Last edited by Ezek; 06-21-2016 at 11:47 AM.

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    Quote Originally Posted by Nightmare View Post
    From the link URL above . So let's not hate on the liberal Justices.
    This is a good point, and why a balanced court helps. It's just so damn frustrating when the civil-rights champions go completely against their own principles on one basic thing. And yes, you can absolutely hate them when they so obviously get it wrong on extremely vital rights, even though they merely do their job on cases like this one.
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    Confused ?

    http://www.supremecourt.gov/opinions...-1373_83i7.pdf

    Did the detective "demand" or "request" ID?

    If you provide ID upon "request" is it considered consensual?

    Was the stop unlawful or not? If it was a lawful stop then why argue the exception technicality?

    ~Whitney



    CERTIORARI TO THE SUPREME COURT OF UTAH

    No. 14–1373. Argued February 22, 2016—Decided June 20, 2016

    Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house.He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

    Last edited by Grapeshot; 06-21-2016 at 02:20 PM. Reason: rule #19
    The problem with America is stupidity.
    I'm not saying there should be capital punishment for stupidity, but why don't we just take the safety labels off of everything and let the problem solve itself?

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    Thanks, Grape, for the edit.

    Since we are in reasonable apprehension of great bodily harm from cops, is not a cop's approach to conversation reasonably assault, at least the tort if not the crime?
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Nightmare View Post
    From the link URL above . So let's not hate on the liberal Justices.
    A broken clock still needs fixing even when it's right.

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    Quote Originally Posted by Nightmare View Post
    LOL. On one hand OCDO habitués make clear their despite of teachers and education, while with their cack-hand they prate "EDUCATE THOSE AROUND YOU."
    I don't know why anyone would conflate members of the leftist educational trade unions and the leftist-controlled "education" establishment (aka government/union or "public" schools) with actual education?

    Indeed, I hold union drones and the schools they control in contempt precisely because they are supposed to be providing education and yet utterly fail to do so. Instead the engage in left-wing indoctrination using such programs as No Child Left Behind, Common Core, Discovery Math, and so on. History is presented not as a roadmap of where we came from or cause and effect, but rather as isolated vignettes with no connection to each other nor to today, except to show that our nation is incurably racist, broken, and evil, fixable only through the exercise of ever greater amounts of federal power.

    I don't expect the mailman or checkout clerk at the supermarket to provide much education. But the educational union members demand ever more of my tax money on the promise of providing education and then fail to deliver.

    Today's union members with teaching degrees are a disgrace to the actual teachers and educators of my youth. These men and women had degrees in the fields they intended to teach--math, history, English--and then obtained teaching certificates. They knew their material. And then they learned how to teach it to others. I never heard the word "pedagogy" from such educators. They focused on the actual material they were teaching. Today, method trumps material. And whereas my teachers all understood that teaching was a part time gig that required a second income to support a family at a middle-class level, today's union members expect to earn 12 months of income for 9 months of work. Worse than that, far too many of them have never left school. K through 12, then to college, then back to K to 12 to teach. My teachers had real world experience working the family farm or ranch, or doing construction, or even providing educational services to businesses in the off season.

    I hold the typical union member educational degreed government school employee in contempt precisely BECAUSE I so value education and they so often utterly fail to deliver the service they purport to provide.

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    Quote Originally Posted by Nightmare View Post
    Thanks, Grape, for the edit.

    Since we are in reasonable apprehension of great bodily harm from cops, is not a cop's approach to conversation reasonably assault, at least the tort if not the crime?
    Do you mean the approach to conversation can be regarded as tort because it is essentially infringement upon the citizens rights ?
    If so, that is an interesting analysis I have never considered.
    Where there is no probable cause the approach to conversation is willful, or wrongful assault?

    ~Whitney
    The problem with America is stupidity.
    I'm not saying there should be capital punishment for stupidity, but why don't we just take the safety labels off of everything and let the problem solve itself?

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    Quote Originally Posted by Ezek View Post
    I disagree with this, if you are being detained you can ask why, this places the ball in the officers court to explain his "articulable suspicion" if he replies "because i'm a police officer" or something to similar effect you can then say "okay, with all due respect officer, this detainment is, in my opinion, unlawful and i'm going to have to request my/a lawyer be present, either in person or via speakerphone on my/a cell phone, any questions asked or requests can be directed through them. "

    of course I also have the number to a lawyer on my cell ... soooooooo
    Decline the encounter from the get-go and the ball is in the officer's court. If you are not free to go the cop will make such a statement and, under RSMo, you are under arrest. My recording will have my denial to engage and not another word from me will be heard on the recording.

    Soooooooo...you are certainly free to engage the cop in verbal jitsu....
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

  24. #24
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    Quote Originally Posted by Whitney View Post
    Do you mean the approach to conversation can be regarded as tort because it is essentially infringement upon the citizens rights ?
    If so, that is an interesting analysis I have never considered.
    Where there is no probable cause the approach to conversation is willful, or wrongful assault?

    ~Whitney
    Anyone, including a cop, can ask you anything. Your response is the key. I prefer to decline the encounter and go about my business. The cop has then a very important decision to make.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by Ezek View Post
    I disagree with this, if you are being detained you can ask why, this places the ball in the officers court to explain his "articulable suspicion" if he replies "because i'm a police officer" or something to similar effect you can then say "okay, with all due respect officer, this detainment is, in my opinion, unlawful and i'm going to have to request my/a lawyer be present, either in person or via speakerphone on my/a cell phone, any questions asked or requests can be directed through them. "

    of course I also have the number to a lawyer on my cell ... soooooooo
    I don't know about that. I've seen references to maybe two states which require a cop to state his basis for a detention to the detainee if the detainee asks for it. Otherwise, after years of paying attention to this point, I know of nothing that requires a cop to answer.

    Spearately, why wait for the cop to give an answer that suggests an illegal detention before requesting a lawyer? For illustrative purposes, I would ask, are you not going to request a lawyer if the cop gives you a genuine reasonable basis to detain you?
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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