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Thread: Get Your 4th and 5th Amendment Resources Here!!

  1. #1
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    (The heading says "imported post" because this post first appeared on this forum when the forum used an older, different software. When the new software went into use, all the posts dating from before the new software were flagged, "imported post.")

    In another thread, a State Researcher mentioned he was putting together a list of legal references.

    I sent him mine by PM, then realized others might find also find such a list helpful. Thus, this post in a general thread.

    These are just the links. Its taken a little while to copy these into this thread. I hope you'll forgive me for not putting the name of the case by each link. Maybe in the coming days I'll come back and do that.

    They're mainly links to stuff that comes up most often in thread discussions. I keep them so I can quickly copy and paste the text and cite the case in accordance with forum rule #5 during thread discussions.

    If you have links that have a bearing on OC-police encounters not mentioned here, PM it to me. Then I can add it to this OP. Legal stuff only please. And federal only, please. State stuff should probably have its own thread in your state's forum.

    Have fun reading. I recommend reading these. 4th Amendment (search and seizure) and 5th Amendment cases are easy to read. Hardly any Latin or legalese.

    As you open the links and check the cases, may I suggest saving the web address in your favorites folder.

    Disclaimer: I am not a lawyer. I do not know that I have the currently controlling cases, or precedents, or all the important cases on any given sub-topic. I just know that I use these a lot and they cover questions that come up on the forum anywhere from frequently to occasionally.

    Inchoate (Keyword I'm inserting to make it easier to find this thread via the forum search function. Inchoate means "incomplete" or "not fully formed"; its in one of the court cases.)



    Law Websites:

    http://www.law.cornell.edu/supct/index.html

    http://supreme.justia.com/

    http://uscode.house.gov/search/criteria.shtml

    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=95-1268



    Videos:

    Busted by FlexYourRights http://www.youtube.com/watch?v=yqMjMPlXzdA

    Talking to Police by Prof. James Duane: http://www.youtube.com/watch?v=6wXkI4t7nuc

    Ten Rules for Dealing with Police by FlexYourRights. http://www.youtube.com/watch?v=gmrbN...eature=related



    Police Chief Magazine Article

    Chief's Council:Responding to Gun Possession Reports

    http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=757&am p;issue_id=122005757&issue_id=122005



    4th Amendment (Search and Seizure) Street-level Overview, Explanations, and Cases

    At FlexYourRights.com: http://www.flexyourrights.org/fourth...me_court_cases


    4th Amendment Court Opinions

    NOTE: The brief descriptions below are not meant to be comprehensive about what is included in the case. They are written from the viewpoint of an OCer's interest--his rights during a police encounter. The disclaimer above about me not being a lawyer and maybe not having the controlling cases and precedents applies.


    Terry vs Ohio: What is a Terry-stop? What is reasonable articulable suspicion (RAS)? What is a Terry-patdown for weapons? Can police just walk up and ask you questions? When can a cop temporarily seize your gun for officer safety during a foot encounter?

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html



    US vs Mendenhall: More about consent, detentions, a list of circumstances that can be used to judge whether you have been detained.

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0446_0544_ZO.html



    Florida vs JL: Is there a"firearm exception" to 4th Amendment protections?

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0529_0266_ZO.html



    Pennsylvania vs Mimms: Can police order you out of your car during a traffic stop? Can a cop temporarily seize a gun during a traffic stop for officer safety merely because its a gun even if you are not acting suspicious or dangerous?

    http://supreme.justia.com/us/434/106/case.html



    Michigan vs Long Can a cop search your car for a gun for officer safety? Which areas of the car can he search?

    http://scholar.google.com/scholar_ca...80000000000002



    US vs Baker (4th Circuit): Can police seize your gun during a traffic stop?

    http://pacer.ca4.uscourts.gov/opinion.pdf/955287.P.pdf



    Arizona vs Hicks Can a cop, having seized your gun, run the serial number to see if it is stolen?

    http://supreme.justia.com/us/480/321/index.html



    Florida vs Jimeno: If you give consent to search the car, can police search closed containers within the car? For example the closed brief case where you have your gun? Also, briefly discusses consent to a search and reasonableness under the 4th Amendment.

    http://supreme.justia.com/us/500/248/case.html



    Schneckloth vs Bustamonte: Consent to searches. Also,Justice Marshall's dissent (near the end of the entire document) is illuminating. Very illuminating.

    http://supreme.justia.com/us/412/218/case.html#243



    Florida vs Bostick Voluntariness of consent

    http://supreme.justia.com/us/501/429/case.html



    Two hundred thirty seven Fourth Amendment case links at FourthAmendment.com:

    http://fourthamendment.com/ccl.php





    5th Amendment Court Opinions

    Miranda vs Arizona: What are your Miranda rights? When do police have to read you your rights? You might be surprised--its not what you might think from watching TV cop shows.

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZO.html


    Ohio vs Reiner: Is the 5th Amendment intended to protect the guilty? Or is one of its basic functions to protect innocent men who might be ensnared by ambiguous circumstances? Can the truthful statements of an innocent man be used against him?

    http://supreme.justia.com/us/532/17/case.html


    Ullman vs US: Is the 5th Amendment a shelter for wrong-doers? Did the Founders make a decision about whether it is better for a guilty man to go free than an innocent man be penalized?

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0350_0422_ZO.html




    Note: The next three cases deal with cops demanding identity from you during a police encounter. They build on each other. Read them in the order given here; it will make more sense.


    Brown vs Texas: Can a cop demand identity info from anyone anytime? Does he first need genuine reasonable articulable suspicion?

    http://www.law.cornell.edu/supct/htm...3_0047_ZO.html


    Kolender vs Lawson: Is a state law unconstitutionally vague if it requires someone to provide credible proof of identity to a cop upon the cop's demand, but does not specify what types of identity info are sufficient and credible? Note: Be careful. This case does not say a state law is unconstitutional if it requires providing identity documents to a cop upon his demand. I have seen at least one state law that skirted this case by compelling a person to provide certain specified identity documents if he has them on his person at the time the cop makes the demand.

    http://supreme.justia.com/cases/fede.../352/case.html



    Hiibel vs 6th Judicial District Court: Is a state law that compels you to provide identity information verbally to a cop during a detention constitutional? Does such a law violate your 5A right to silence? Side note: You can actually see the police encounter that led to this court decision on YouTube. The cop that demanded Larry Hiibel's identity had a dashcam running. Just go to YouTube and type keyword "Hiibel" into the search feature.

    http://www.law.cornell.edu/supct/html/03-5554.ZO.html



    5th Amendment Article

    From The Champion magazine, Nat'l Assoc Crim. Defense Lawyers:

    http://www.nacdl.org/public.nsf/01c1...b?OpenDocument
    Last edited by Citizen; 04-11-2013 at 11:25 AM.
    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.

  2. #2
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    Good God, citizen. Looks like I've got a weekend full of reading material. Thank you, good sir.

  3. #3
    Regular Member VAopencarry's Avatar
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    Can you just give a summation and a cite. thanks
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    Campaign Veteran skidmark's Avatar
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    VAopencarry wrote:
    Can you just give a summation and a cite. thanks
    All your right are belong to us, unless you can find a loophole or a judge that knows how to read plain English.

    stay safe.

    skidmark
    *ETA - dropped word
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    Bump for OC scholars.
    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.

  6. #6
    Regular Member streetdoc's Avatar
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    Here's a link that provides a format for a wallet card that you can carry when you want to ensure hat you don't say something that you shouldn't.

    http://www.assertrights.com/

    [img]file:///C:/Users/David/AppData/Local/Temp/moz-screenshot-2.png[/img]
    and


    I followed their instructions and printed a couple of these on size cards and carry them with me. There is also several links to some good references in this site for you to use. Hopefully I will never need it but I don't want to be without it either.
    'Till the last landings made, and we stand unafraid, on a shore not mortal has seen,
    'Till the last bugle call, sounds taps for us all,
    It's Semper Fidelis, MARINE!

  7. #7
    Regular Member Gunslinger's Avatar
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    Great post, Citizen. I use Cornell all of the time for the USC.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

  8. #8
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    Bump to celebrate completion! Almost three years to the day after I originally posted this thread, I finally finished all the case descriptions for each of the court opinion links posted in 2009. Yay!!!!! I even discovered a few I had left out of the list of 5th Amendment cases, and added those.
    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.

  9. #9
    Herr Heckler Koch
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    Congratulations and thanks. SOo much to read, so little time remaining.

    Good people ought to be armed as they will, with wits and Guns and the Truth.

  10. #10
    Regular Member Motofixxer's Avatar
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    4TH

    "...whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v Ohio, 392 US 1 (1968); also recognized in Brown v Texas, 443 US 47.

    Brown v Texas,443 U.S. 47 (1979): "Two police officers, while cruising near noon in a patrol car, observed appellant and another man walking away from one another in an alley in an area that had a high incidence of drug traffic. They stopped and asked appellant to identify himself and explain what he was doing. One officer testified that he stopped appellant because the situation 'looked suspicious and we had never seen that subject in that area before.' The officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When appellant refused to identify himself, he was arrested for violation of a Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer 'who has lawfully stopped him and requested the information.' Appellant's motion to set aside information charging him with violation of the statute on the ground that the statute violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was convicted and fined."

    HELD: The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be 'reasonable.' Cf. Terry v. Ohio, 392 U.S. 1;... Delaware v. Prouse, 440 U.S. 648. Here, the state does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officer's actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference. Pp. 50-53.

    Mr. Chief Justice Burger delivered the opinion of the court; "This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman's demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request."

    "Appellant refused to identify himself and angrily asserted that the officers had no right to stop him."

    "The Fourth Amendment, of course, `applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.' Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). '[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person... and the fourth Amendment requires that the seizure be 'reasonable'.' U.S. v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)"

    "But even assuming that purpose (prevention of crime) is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it..."

    "We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements. See Dunaway v. New York, 442 U.S. 200,210 n.12 (1979); Terry v. Ohio... the county judge who convicted appellant was troubled by this question, as shown by the colloquy set out in the appendix to this opinion."

    "Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed."

    "APPENDIX TO THE OPINION OF THE COURT

    "THE COURT:...What do you think about if you stop a person lawfully, and then if he doesn't want to talk to you, you put him in jail for committing a crime?"

    "MR. PATTON [prosecutor]: Well first of all, I would question the defendant's statement in his motion that the first amendment gives an individual the right to silence."

    "THE COURT:...I'm asking you why should the State put you in jail because you don't want to say anything?"

    "MR. PATTON: Well, I think there's certain interests that have to be viewed."

    "THE COURT: Okay, I'd like you to tell me what those are."

    "MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual's interests in this respect, as far as simply asking an individual for his name and address under the proper circumstances."

    THE COURT: But why should it be a crime to not answer?"

    "MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt."

    "THE COURT: What does it disrupt?"

    "MR. PATTON: I think it tends to disrupt the goal of this society to maintain security _over_ its citizens to make sure they are secure in their gains and their homes."

    "THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?"

    "MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it's presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual's name and address, and to determine exactly what is going on."

    "THE COURT: I'm not questioning, I'm not asking whether the officer shouldn't ask questions. I'm sure they should ask everything they possibly could find out. What I'm asking is what's the State's interest in putting a man in jail because he doesn't want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn't have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don't confess, you can't put them in jail, can you, for refusing to confess to a crime?"

    When the Supreme Court reversed Brown's conviction, a portion of that ruling could be interpreted as saying that the police could not require Brown to identify himself because they lacked reasonable suspicion to believe that he was involved in criminal activity. However, considering past and more recent cases involving police stop, it is evident not only that reasonable suspicion is needed before the police may lawfully detain an individual, but also that an individual cannot be required to identify himself, even if there is probable cause to arrest.

    If Brown leaves any doubt in the reader's mind that a person is not required to identify himself to a police officer, even when the police have reasonable suspicion, this was cleared up in Kolender v. Lawson, 461 U.S. 352 (1983), in which the Supreme Court stated: "States may not authorize the arrest and criminal prosecution of an individual for failing to produce identification on demand by a police officer... police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual... for the purpose of asking investigative questions... but they may not compel an answer and they must allow the person to leave after a reasonable brief period of time...."

    Based on Kolender, the 9th Circuit Court of Appeals ruled in Martinelli v. City of Beaumont, 820 F.2nd 1491 (1987), that an individual approached by police cannot be arrested for refusing to produce identification.

    Davis v. Mississippi, 394 U.S. 721 (1969): "Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof." "Fingerprint evidence is no exception to the rule that all evidence obtained by searches and seizures in violation of the constitution is inadmissible in a state court. Pp.723-724. The Fourth Amendment applies to involuntary detention occurring at the investigatory stage as well as at the accusatory stage. Pp. 726-727. Detentions for the sole purpose of obtaining fingerprints are subject to the constraints of the Fourth amendment.. P.727. "Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints...the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context."
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  11. #11
    Regular Member Motofixxer's Avatar
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    5TH


    "You can, and must, keep your mouth shut for protection under the Fifth Amendment." Belnap v US, Et al, District Court (Utah), No C. 149-71.

    "The constitutional privilege [of the Fifth Amendment] was intended to shield the guilty and imprudent, as well as the innocent and foresighted." Marchetti v US, 390 U.S. 39, 51.

    "Government seeking to punish individual must produce evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his mouth...Privilege against self-incrimination is fulfilled only when person is guaranteed right to remain silent unless he chooses to speak in unfettered exercise of his own will...Defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on involuntary confession, regardless of its truth or falsity, even if there is ample evidence aside from confession to support conviction... Fifth amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed, from being compelled to incriminate themselves...Prosecution may not use at trial fact that defendant stood mute or claimed his privilege in face of accusations...Any statement taken after person invokes fifth amendment privilege cannot be other than product of compulsion...Any evidence that accused was threatened, tricked or cajoled into waiver will show that he did not voluntarily waive privilege to remain silent." Miranda v Arizona, 384 U.S. 468.

    "The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It cannot be claimed by an attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person." US v Johnson, 76 F. Supp 538.
    Click Here for New to WI Open Carry Legal References and Informational Videos--- FAQ's http://Tinyurl.com/OpenCarry-WI

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