LEO Encounter in my Front Yard!! O.O

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grumpycoconut wrote:

I didn't say that it was "legal" I said that there was no 4th amendment Search and Seizure violation. I can't think of any specific penal code they violated by opening the car and putting property in to it.

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Fair enough, neither can I. I can definitely see where your viewpoint is here, and I definitely respect the definitely lawful versus unlawful viewpoint you take. In your profession you have reason to do so.

As for your hypothetical I'm guessing that if a smart cop could wrote good enough paper a ballsy DA might be ok with filing it. Of course most DAs are wimps. I have my doubts that a judge would let it fly though. Plain view might be a bit of a stretch since a good defense attorney might be able to dig up an argument on how the cop was not somewhere he was legally permitted to be when he made his discovery. Just not sure what law he would trot out to support his argument. It would be fun to see how it shook out.

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Here is where I can trot out the opinion of Arizona v. Hicks. In Hicks the officer merely lifted up the stereo (or looked around back of the stereo) to record the serial number and the Supreme Court ruled that to be a search.

In this case, by opening Dessun's car door, the police officer was conducting a search. I'm basing this on the language in Hicks where the judges note that by lifting or looking behind the stereo the officers could have found something. It could have been a love note, it could have been drugs, it could have been anything, but by doing so a search was indeed performed.

The officer's in Dessun's case go beyond Hicks, because the officers aren't merely looking behind or underneath an object out in the open, but they are opening a car door where they have no reason to do so. The fact that Dessun wasn't in his car, that no part of his story takes place in his car up until the point which the officer opens the car door makes this an unlawful search in my opinion, and hence unconstitutional.

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Dessun wrote:

MudCamper wrote:

I think it is very important for everyone who OCs to carry at least one of the LEA memos with them, so that you can hand it to LEOs who are totally ignorant of the law.

At the very least, carry this one with you: http://www.hoffmang.com/firearms/carry/CPOA-Client-Alert-12042008.pdf

or one of the others from a LEA in your area.

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Yeah, I had that one and another one. He didn't want to see them, said memos don't mean jack.

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Wow. Do you have a recording of this?

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I don't know how long you were detained, but it sounds like it was longer than an "e" check takes. In this case, I don't think I would bother with a civil suit, as you don't have much in the way of 'damages.' Just not sure it would be worth the time/money you would have to put into the case.

You can call the department and ask what the process is for filing a complaint against an officer. They will have procedures in place to take care of something like that. This would ensure the problem is handled and documented... just in case it happens again.

Beyond a formal complaint, you could write a letter to the chief asking that officers be made aware that 4th Amendment violations are a liability to themselves and the department. Especially in light of the Nordyke decision, it is going to get very expensive to do things like this in the very near future. As tax-paying citizens, it is important we help our departments keep their liabilities to a minimum.

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bigtoe416 wrote:

grumpycoconut wrote:

I didn't say that it was "legal" I said that there was no 4th amendment Search and Seizure violation. I can't think of any specific penal code they violated by opening the car and putting property in to it.

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Fair enough, neither can I. I can definitely see where your viewpoint is here, and I definitely respect the definitely lawful versus unlawful viewpoint you take. In your profession you have reason to do so.

As for your hypothetical I'm guessing that if a smart cop could wrote good enough paper a ballsy DA might be ok with filing it. Of course most DAs are wimps. I have my doubts that a judge would let it fly though. Plain view might be a bit of a stretch since a good defense attorney might be able to dig up an argument on how the cop was not somewhere he was legally permitted to be when he made his discovery. Just not sure what law he would trot out to support his argument. It would be fun to see how it shook out.

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Here is where I can trot out the opinion of Arizona v. Hicks. In Hicks the officer merely lifted up the stereo (or looked around back of the stereo) to record the serial number and the Supreme Court ruled that to be a search.

In this case, by opening Dessun's car door, the police officer was conducting a search. I'm basing this on the language in Hicks where the judges note that by lifting or looking behind the stereo the officers could have found something. It could have been a love note, it could have been drugs, it could have been anything, but by doing so a search was indeed performed.

The officer's in Dessun's case go beyond Hicks, because the officers aren't merely looking behind or underneath an object out in the open, but they are opening a car door where they have no reason to do so. The fact that Dessun wasn't in his car, that no part of his story takes place in his car up until the point which the officer opens the car door makes this an unlawful search in my opinion, and hence unconstitutional.

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Toe,

Lawful v. Unlawful is the only perspective that counts here (at least until the revolution comes). It has nothing to do with profession. It has everything to do with being in a position where the "Law" might have a direct impact on you.

I can argue my way around Hicks here just based on the specifics of the two cases. You said that in Hicks the cop lifted a stereo in order look for a serial number. This is a clear and unequivocal direct effort to seek informationthat was not otherwise visible and might adverselyeffect the defendant should the number show that the stereo was hot. In the extant case, Dessun v Galt, The officer took what is arguably a dangerous implement and, in the interest of public safety, sought out a secure location in which to temporarily and safely store it. That Dessun was never in hiscar and that the car was never central in any way to the circumstances of the contactgives additional weight tothe officer's claim that he entered Dessun's car with only the intent to safeguard the gun and supports the state's contention that the discovery of Dessun's dirty magazines, smelly socks and other illicit unmentionables was inadvertantand falls under the plain sight exception.

This Court of Kangaroos holdsthat the aforementioned unmentionables are admissible into evidence. Bailiff, beat the deffendant.

I, The Dishonorable Grumpycoconut, Magistrate of the InterwebzCourt of Kangaroos, haz spoken. Bow before my wisdom.

Next case, Citizen v.LEO229. Now lets go out there and give these guilty bastards a fair trial.

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MudCamper wrote:

Wow. Do you have a recording of this?

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Yes, minus the first 20 seconds of contact. The quality isn't perfect because of their squad car engines constantly rumbling. I'm getting a digital cam and having someone tape it next time.



CA_Libertarian wrote:

I don't know how long you were detained, but it sounds like it was longer than an "e" check takes. In this case, I don't think I would bother with a civil suit, as you don't have much in the way of 'damages.' Just not sure it would be worth the time/money you would have to put into the case.

You can call the department and ask what the process is for filing a complaint against an officer. They will have procedures in place to take care of something like that. This would ensure the problem is handled and documented... just in case it happens again.

Beyond a formal complaint, you could write a letter to the chief asking that officers be made aware that 4th Amendment violations are a liability to themselves and the department. Especially in light of the Nordyke decision, it is going to get very expensive to do things like this in the very near future. As tax-paying citizens, it is important we help our departments keep their liabilities to a minimum.

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Thanks, my thoughts exactly. I'm concerned that the dept. hasn't trained their officers to respond to UOC firearm possession.

I'm particularly concerned by the conduct of the one officer who told me I couldn't record the police and who touched my Digital Voice Recorder and caused it to slide off my car. His sarcastic "Oops" and blaming it on my wax job was plainly obvious.Though I doubtit would be provable in a court that he did it on purpose (despitehaving a witness).

Regardless if it was illegal or not, I don't approve of the officer's actions who placed my firearm in my car. At first he set it on my trunk, but picked it back up. Despite the legalese of what grumpycoconut says, the firearm was not loaded and theofficerhas nothing to be afraid of from a law-abiding citizen. And I did nothing that should lead him to believe otherwise.

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Well, I'd still suggest at least a consultation with a lawyer, those aren't that pricey. Though it can be expensive, it can also pay for itself. Note this link to illustrate that. http://opencarry.mywowbb.com/forum26/22754.html

I'm hardly a legal expert, but it still seems to me like you've got a sure thing case. It would also bring the local department sharply into line and prevent any future occurances if you were to win.

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Also, post-incorporation, we have MUCH better standing to end this sort of treatment. Bearing arms is now recognized as protected by the US Constitution.

So, future violations of our rights will be double-whammies: 2nd & 4th Amendments for any detentions of persons bearing arms... not to mention the fact we're doing NOTHING criminal or suspicious in the first place...

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Grumpycoconut sez:

"In the extant case, Dessun v Galt, The officer took what is arguably a dangerous implement and, in the interest of public safety, sought out a secure location in which to temporarily and safely store it. That Dessun was never in hiscar and that the car was never central in any way to the circumstances of the contactgives additional weight tothe officer's claim that he entered Dessun's car with only the intent to safeguard the gun and supports the state's contention that the discovery of Dessun's dirty magazines, smelly socks and other illicit unmentionables was inadvertantand falls under the plain sight exception."

"Lawful v. Unlawful is the only perspective that counts..."

Grumpy, I appreciate your angle/contribution. I feel it helps the discussion, but I take exception with some of it. You mention lawful vs. unlawful being the salient point. My finger pointing about this is:

1. The officer assumed (maybe) that it was Dessun's car? What if it belonged to someone else? Perhaps a convicted felon or other "prohibited person" who was not on scene at the timeand the officer just placed a firearm in someone else's car, possibly placing them in violation of their parole? Or did they confirm the RO of the car?

2.Since the door was not open, and the officer opened the personal property of a citizen, wouldn't that be trepassing?

3. What if the door was locked? Then where would the officer have put the gun for "safety"?

4. What if, upon opening the door, the officer found the evidence of where Jimmy Hoffa was buried? Now we have trespassing and evidence from the poisoned tree cuz it wasn't in plain sight between the passenger seat and door jamb. Now we'll never get the conviction of the Kennedys. (ok, ok... so maybe the Kennedys didn't have Hoffa knocked off... just sayin')

I think the thing that bothers a lot of folks is the apparent smugness of the officers and the readiness with which they are willing to treat law abiding citizens like crap. We look to them to be the professionals; most are, but a few aren't.

Since they didn't approach him with guns drawn, a' la felony stop, (and therefore their personal safety didn't seem to be an issue from the get-go), and subsequently determined that the gun was unloaded, one would think the nicest/professional thing to do was hand the property back to its owner, rather than playing "fetch". Your 'temporarily and safely store it" is kinda weak. What next? When one gets pulled over for an alleged traffic violation, yet you aren't ticketed, should the officer take away your car keys, put them out of reach, say 100 yards down the road "for his safety" until he can get away from the scene? The best "temporary" and "safest" place the store the firearm was back in the holster of its owner.

Even with all this being said, I know we all appreciate your side of the discussion. You always seem to bring a perspective that positively contributes. I thank you for that.

As for Old Dog's comment about how we "despise them". No, we only despise those who are scumbags or knuckleheads, regardless of their profession.

(the next sound you hear is my getting-down off my soapbox)

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nukechaser wrote:

The best "temporary" and "safest" place the store the firearm was back in the holster of its owner.

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Exactly correct. The officer removed it from the holster, and if he didn't want his subject handling the firearm in his presence, then he should have put it back in the same way he took it.

You're also correct that the officer had no right to open the vehicle. If while stashing the gun, he had found any evidence of any crime, the plain view doctrine would not apply because he didn't have a right to be in the place he was.

Of course, an unscrupulous officer would simply falsify his report to say he saw the evidence through the car window and that was why he opened the car door in the first place.

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grumpycoconut wrote:

I can argue my way around Hicks here just based on the specifics of the two cases. You said that in Hicks the cop lifted a stereo in order look for a serial number. This is a clear and unequivocal direct effort to seek informationthat was not otherwise visible and might adverselyeffect the defendant should the number show that the stereo was hot. In the extant case, Dessun v Galt, The officer took what is arguably a dangerous implement and, in the interest of public safety, sought out a secure location in which to temporarily and safely store it.

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I only had to wait a day for this case (Arizona v. Gant) to be decided:

http://www.oyez.org/cases/2000-2009/2008/2008_07_542

In this case, a suspect was arrested for driving with a suspended license. Gant voluntarily left his vehicle after which he was arrested. The police performed a search incident to arrest on his vehicle. The court holds that:

Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763.

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In our Dessun case, the officer doesn't even have an arrest, he is performing this search on a citizen complying with all laws. In Katz v. United States, where the police were monitoring a telephone booth without a warrant, the court finds that even this is overstepping the police officers legal bounds.

The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization "

"bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U.S. 89, 96 . "

And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations "only in the discretion of the police."

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It is clear that the court gives police officers very little room to perform a warrantless search, let alone a warrantless search on a law abiding individual.

The police officer had no right to place Dessun's firearm inside his car. Dessun is completely within his right to have a weapon on his person, the fact that the police officer feels otherwise doesn't matter. Placing the firearm where Dessun can access it within 10 seconds does nothing for public safety.

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nukechaser wrote:
snips

1. The officer assumed (maybe) that it was Dessun's car? What if it belonged to someone else? Perhaps a convicted felon or other "prohibited person" who was not on scene at the time and the officer just placed a firearm in someone else's car, possibly placing them in violation of their parole? Or did they confirm the RO of the car?

2. Since the door was not open, and the officer opened the personal property of a citizen, wouldn't that be trepassing?

3. What if the door was locked? Then where would the officer have put the gun for "safety"?

4. What if, upon opening the door, the officer found the evidence of where Jimmy Hoffa was buried? Now we have trespassing and evidence from the poisoned tree cuz it wasn't in plain sight between the passenger seat and door jamb. Now we'll never get the conviction of the Kennedys. (ok, ok... so maybe the Kennedys didn't have Hoffa knocked off... just sayin')

Grumpycoconut Responded (response appropriate to CAlib's post too)

1. Dessun was polishing the car. That's evidence of some connection with the car. It makes no difference who the car belongs to. What matters is who has control of the car at the time. Other hypotheticals are just that, hypotheticals, and have no bearing.

2. Trespassing? Know your definitions. Trespassing does not apply to vehicles. It pertains to land, real property, structures etc. 602 PC is a long and boring read. Entering a car may be rude but it ain't illegal. No it wasn't a burglary. The car was unlocked and there was no intent to thieve from it. No it wasn't vehicle tampering (10852VC)either.

3. Locked door? He would have put it somewhere else. Again Rude but not illegal under CA law.

4. Jimmy Hoffa? The reasoning I presented here argues that there was no "search" merely an attempt to keep that evil gun from running amok by itself and therefor no 4th amendment violation. No 4th violation, no poison fruit. Plain view= I'm somewhere I'm allowed to be, I see something, it's in plain view. Since it wasn't illegal for the cop to open the car the bloody hand wearing Hoffa's pinky ring that fell from between the door and the seat is fair game. The smart cop's next move here is to "freeze" the scene and get a search warrant based on the circs up to that point in time. That way he can get into the trunk and glove box to find the rest of Hoffa's bits and pieces.

The biggest thing most folks don't realize is that when arguing the law there is no real room for emotion. Arguing emotion might sway a jury but it is unlikely to do squat for anyone arguing the legal issues before a judge. Emotion, outrage, anger, disbelief etc are good fuel for the rhetorical fire but they must burn in support of law and logic if they are to be of any service. Of course when the revolution comes the emotions and bullets will flow freely until the reasoned thinkers have used up all of the hot heads as cannon fodder and have carved out their new order of things.

The second biggest thing most folks don't get is that "right and wrong" have no connection to the law. Right and wrong are subjective things that are repeatedly reinterpreted by each individual on a continuous basis. What is right to me might be dead wrong to you right this minute and perfectly ok with you if our places on the merry go round are reversed. Law on the other hand is a tediously and painfully tortured collection of words that attempts to set forth a prescription for things that are within the rules or outside of the rules. Remember, we are a nation of laws not men.

If you are a starving Somali it's illegal but right to turn to piracy to feed your kids. If you are an American it's illegal but right to commit treason and overthrow, by armed insurrection, the rulers set above you by God and the law. It's legal but wrong to arrest that uppity old woman for having the temerity to sit in the front of the bus just 'cause her feet hurt. It's legal but wrong to murder 65 million people who had the nerve to have been on our land when we got here.

Personally I think its a dreadful insult to disarm a man and then, after determining that there is no reason to disarm him, to insult him by refusing to face him and hand him back his arm.

By the way it wasn't the Kennedys that did Hoffa it was Cesar Chavez. he didn't want to have to share a holiday with some funny looking Mick.

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grumpycoconut wrote:

4. Jimmy Hoffa? The reasoning I presented here argues that there was no "search" merely an attempt to keep that evil gun from running amok by itself and therefor no 4th amendment violation. No 4th violation, no poison fruit. Plain view= I'm somewhere I'm allowed to be, I see something, it's in plain view. Since it wasn't illegal for the cop to open the car the bloody hand wearing Hoffa's pinky ring that fell from between the door and the seat is fair game. The smart cop's next move here is to "freeze" the scene and get a search warrant based on the circs up to that point in time. That way he can get into the trunk and glove box to find the rest of Hoffa's bits and pieces.

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This might float in lower courts, but I doubt a higher court would accept an officer entering a vehicle without a warrant as a 4th violation, even if his doing so was not to perform a search.

The 4th Amendment protects our right to be "secure" in our persons and property. In addition, we are also protected from warrantless searches and seizures. This protection extends to our vehicles.

From Arizona v Gant (omitted inline citations for ease of reading):

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important and deserving of constitutional protection. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

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Clearly, the SCOTUS intended to put an end to 28 years of bad policy and practice of ignoring the 4th when it comes to vehicles.

Further, the plain sight doctrine says the officer must have a right to be in the place that he is in. Just as the officer in our Dessun case wouldn't have had the right to walk into his house to place the gun on the sofa, the officer had no right to enter the vehicle without a warrant.

No right to be there = fruit of the poisonous tree.

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CA_Libertarian wrote:

From Arizona v Gant (omitted inline citations for ease of reading):

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important and deserving of constitutional protection. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

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It's amazing to me that any governmental agency or police force would ever believe that it had the right "to search not just the passenger compartment but every purse, briefcase, or other container within that space" for a traffic violation.

Yet it happened. What were they thinking? :what:

Why did they do it? Simply because they could.

Power corrupts. Absolute power corrupts absolutely.

The government should never be trusted. Never.

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HankT wrote:

It's amazing to me that any governmental agency or police force would ever believe that it had the right "to search not just the passenger compartment but every purse, briefcase, or other container within that space" for a traffic violation.

Yet it happened. What were they thinking? :what:

Why did they do it? Simply because they could.

Power corrupts. Absolute power corrupts absolutely.

The government should never be trusted. Never.

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Agreed.

That's exactly what this case is about. The court uses very strong language when describing the police practices and abuse of their previous decisions over the last 28 years.

The officer that conducted the search, when asked in an Arizona court why he conducted the search, replied, "because the law says we can do it."

The "because we can" attitude is, IMO, the most common symptom of a bad cop. The officer in this case could have responded, "we were there because of a complaint that drugs were being sold, so I wanted to investigate that crime." Instead, he smugly says, 'because I can.'

The point is motivation. The bad cops want to exercise their power for the wrong reasons. A good cop has no motivation other than his oath of office and protecting the rights of his fellow man.

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When did Hank T get his hall pass back???



OK April 15, '09

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bigtoe416 wrote:

I'm not sure if touching your voice recorder is illegal, although it seems out of line.

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What about attempting to tamper with evidence?

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cato wrote:

When did Hank T get his hall pass back???



OK April 15, '09

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S'okay.

Nice sash, cato, btw.

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CA_Libertarian wrote:

The point is motivation. The bad cops want to exercise their power for the wrong reasons. A good cop has no motivation other than his oath of office and protecting the rights of his fellow man.

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I think ethics and professionalism are in the mix too. Same as almost any field of employment and service, of course. The big problem in dealing with cops who have ethical and professional deficiencies is that they have the latitude to use physical force--sometimes without careful scrutiny.

LE has come a long way in the last 40 years. The overall level of professionalism has increased greatly. I remember the days of drop guns, for example. Hardly ever hear about that anymore. Professionalism is an expanding requirement. Gotta keep going...

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KS_to_CA wrote:

bigtoe416 wrote:

I'm not sure if touching your voice recorder is illegal, although it seems out of line.

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What about attempting to tamper with evidence?

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Not sure if this is true or not, but there was no crime committed (at that point in the encounter at least), nor any charges brought forth, so I would think that there could be no evidence. As grumpycoconut has pointed out, there isn't a penal code we can point to here that the officers broke. It's plainly obvious to me that they violated Dessun's 4th amendment rights though.

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bigtoe416 wrote:

KS_to_CA wrote:

bigtoe416 wrote:

I'm not sure if touching your voice recorder is illegal, although it seems out of line.

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What about attempting to tamper with evidence?

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Not sure if this is true or not, but there was no crime committed (at that point in the encounter at least), nor any charges brought forth, so I would think that there could be no evidence. As grumpycoconut has pointed out, there isn't a penal code we can point to here that the officers broke. It's plainly obvious to me that they violated Dessun's 4th amendment rights though.

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Exactly. It's a 4A issue. The officers had no PC to seize that item. (Not to mention the 4A seizure & search of his person and the rest of his property.)

It's definitely worth reporting to IA and the DA. Maybe even report it to the FBI, just in case they have a file going on the particular officer. He may be in the habit of fondling the personal effects of others.