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Thread: My latest detainment

  1. #1
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    This happened in June. Here ya go.

    http://caopencarry.blogspot.com

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    only the 3rd of the three pages is available for view.

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    images are now fixed

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    PM sent to you pullnshoot25.

    This case is basically identical to Florida v. JL, except you didn't have a concealed weapon, and JL did. I'm sure when you were quoting relevant case law to him he started to get a little worried, since he either knew the cases and recognized he was in the wrong or he was totally clueless and was worried about what he didn't know.

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    Ha!

    "I had not seen such a recorder before and could not tell if it was actually a recorder or contained a hidden compartment or potentially a weapon."

    He then goes on to mention the illuminated red light on the device!

    "The device may potentially contain recorded statements during the contact."

    Ya Think?

    And people think we're paranoid. You could have hidden a weapon inside the recorder. Did he check under your fingernails? What about that padlock? That could have been a cover for a hidden compartment containing a weapon.

    You weren't wearing odor eaters, were you? There could have been a weapon inside of them.

    Wrist watch?



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    I read the story, great post I hope you get the information you are looking for although I am unclear on the part whether you were OC'ing or not? Because they clearly said they were charging you for carrying a concealed firearm. So if you were OC'ing, is it ok for you to tell them..

    "I was asked if I had a firearm on my person, to which I responded that I did not"

    Isnt that obstruction of justice to lie to them? I guess you could tell them nothing instead, but lieing is a different story is it not?



    Now if you had no firearm on you at all then obviously this question has no place though I am still unclear about that part as well.



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    Streetbikerr6 wrote:
    I read the story, great post I hope you get the information you are looking for although I am unclear on the part whether you were OC'ing or not? Because they clearly said they were charging you for carrying a concealed firearm. So if you were OC'ing, is it ok for you to tell them..

    "I was asked if I had a firearm on my person, to which I responded that I did not"

    Isnt that obstruction of justice to lie to them? I guess you could tell them nothing instead, but lieing is a different story is it not?

    *

    Now if you had no firearm on you at all then obviously this question has no place though I am still unclear about that part as well.

    *
    You can lie to a cop all you want, just not to a federal officer.

    In this instance, I did not lie. I had no gun on me. Where it was I will not say (that is irrelevant anyways) but I will say that it was not on me. Thus, I answered truthfully.

    In the future, I will not answer any more of these questions from cops. I will see how they like silence.

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    pullnshoot25 wrote:
    Streetbikerr6 wrote:
    I read the story, great post I hope you get the information you are looking for although I am unclear on the part whether you were OC'ing or not? Because they clearly said they were charging you for carrying a concealed firearm. So if you were OC'ing, is it ok for you to tell them..

    "I was asked if I had a firearm on my person, to which I responded that I did not"

    Isnt that obstruction of justice to lie to them? I guess you could tell them nothing instead, but lieing is a different story is it not?



    Now if you had no firearm on you at all then obviously this question has no place though I am still unclear about that part as well.

    You can lie to a cop all you want, just not to a federal officer.

    In this instance, I did not lie. I had no gun on me. Where it was I will not say (that is irrelevant anyways) but I will say that it was not on me. Thus, I answered truthfully.

    In the future, I will not answer any more of these questions from cops. I will see how they like silence.

    Hmm, I highly regard every post, story and bit of knowledgeI see from you sir although I must say I am a bit weary to the statement that I can lie to a cop. If it hinders their ability to do their job I'm fairly certain I can get in trouble. Instance - lady is getting chased by a man with a knife and run right by me. Cop comes 10 seconds later asking where they went and I point him in the oppositie direction. Now if they can prove I was lieing, like security video or something, I am pretty sure that is obstruction of justice.

    Though in your case you were not lieing so this no longer applies to your scenerio, just an additional question now. Don't want to lead this topic elsewhere sorry just maybe if you have some clarification on that part.

    Though other than that keep us posted on how this turns out please.



    Edit: and by the way, yes silence is what they need. Since when did it become acceptable in America for Police to abuse the ignorance of the public and ask things they need not know???


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    Show me where it is illegal to lie to a normal police officer and I will rescind my statement. It is only illegal to lie to a Federal officer.

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    Streetbikerr6 wrote:
    ...I must say I am a bit weary to the statement that I can lie to a cop. If it hinders their ability to do their job I'm fairly certain I can get in trouble. Instance - lady is getting chased by a man with a knife and run right by me. Cop comes 10 seconds later asking where they went and I point him in the oppositie direction. Now if they can prove I was lieing, like security video or something, I am pretty sure that is obstruction of justice...
    I'm pretty sure you're wrong. Citations are great for convincing people you're right. They're also required by the owners of this forum. Please respect the rules by providing reliable sources for your legal citations... or refrain from posting baseless legal opinions.

    And remember, EVERYTHING is legal, unless there is a law against it. So until you provide a statute that prohibits lying to an officer, Pullnshoot25 has no obligation to provide a citation.

    You may be onto something with your obstructing justice scenario. I generally would advise that saying nothing is better than lying, legal or not. However, that obviously doesn't apply in Pullnshoot25's scenario, since there was neither a crime being investigated (justice), nor a lie (obstruction).
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    I vaguely remember reading this a while back. But there is nothing wrong with lying to police or the investigators. Too lazy today todig deeper.

    "The Ninth Circuit struck down a state law that criminalized knowingly false statements in cicitzen complaints against police officers. While the law can punish knowingly false statements generally, the court held that a law can't punish knowingly false statements on one side of an issue (here, knowingly false statements accusing police officers) but leave unpunished knowingly false statements on the other side (here, knowingly false statements by witnesses who are seeking to exonerate the police officer). The court cited R.A.V. v. City of St. Paul (1992), in which the U.S. Supreme Court struck down a ban on racist fighting words; a total ban on fighting words (i.e., epithets directed to a particular person that seem likely to trigger a fight), the R.A.V. Court held, would be constitutional, but certain kinds of discrimination within the category of fighting words -- for instance, banning racist fighting words but not other fighting words -- are unconstitutional."



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    CA_Libertarian wrote:
    Streetbikerr6 wrote:
    ...I must say I am a bit weary to the statement that I can lie to a cop. If it hinders their ability to do their job I'm fairly certain I can get in trouble. Instance - lady is getting chased by a man with a knife and run right by me. Cop comes 10 seconds later asking where they went and I point him in the oppositie direction. Now if they can prove I was lieing, like security video or something, I am pretty sure that is obstruction of justice...
    I'm pretty sure you're wrong. Citations are great for convincing people you're right. They're also required by the owners of this forum. Please respect the rules by providing reliable sources for your legal citations... or refrain from posting baseless legal opinions.

    And remember, EVERYTHING is legal, unless there is a law against it. So until you provide a statute that prohibits lying to an officer, Pullnshoot25 has no obligation to provide a citation.

    You may be onto something with your obstructing justice scenario. I generally would advise that saying nothing is better than lying, legal or not. However, that obviously doesn't apply in Pullnshoot25's scenario, since there was neither a crime being investigated (justice), nor a lie (obstruction).
    Ok, well if my meaning of the word the cops "job" was to find the bad guy, I think I'm correct.

    Supreme Court of the United States, “In order to aid and abet another to commit a crime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” Nye & Nissen v. United States, 336 U.S. 613, 618 (1949) quoting Judge Learned Hand in U.S. v. Peoni 100 F.2d 401, 402 (2d. Cir. 1938).

    Like you said PullNshoots scenerio is off the hook since no crime is being committed but in my scenerio given, if I pointed the officer the other direction then I have "seeked in my actions to see this crime succeed". So you can not always lie to a police officer. Though you can "white lie" I guess for lack of a better term.

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    My question after reading the transcripts is.... Did security ask you to leave the premises.. and did you return, armed or not, in violation of 602 pc?

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    148 PC deals with delaying, resisting, obstructing police in the performance of thier duties. It says nothing specifically about lying to the cops. In theory a very smart cop and a very breve DA might make a 148 case against a lie but I doubt it would actually happen.

    As far as I know there is no crime called "obstruction of justice" in California.



    Yo Nate,

    Interesting fun you had there with SDPD. Good job on your complaint letter too. Your logic, legal and otherwise seems solid to me but I've got a couple little issues with your letter.

    1. Its a "detention" not a detainment. The cops, DAs and judges call it a detention so we should too. It helps keep us from sounding like boobs if we use the same vocabulary as they do. Cops love to laugh at curbside lawyers that can't get thier vocabulary right.

    2. Don't call it a "Terry search" its either a "frisk" or a "search". Calling it a Terry search lends it legitimacy it doesn't deserve and again risks making you sound like a not very good curbside lawyer. You might call something a "Terry stop" - a detetion based on reasonable suspicion that a crime has been/is being/ might in the immediate future becommitted and that the person detainedmight beinvolved. The attendant "frisk" would then be a brief search of the exterior of the clothingintended to reveal the presence of weapons or other contraband readily identifiable to the officer. If it feels like a gun or knife or pot pipe the cop can go after it provided that he can articulate that it plainly felt like what it was. Mystery objects require a different approach.

    3. Digging into your pockets or socks or underwear or other stuff is rightly called a "search" and requiresyour consent or probable cause to be legal. Legal in this case means that evidence recovered is admisible in court. I'd love to see someone bring a successful civil rights case based on an illegal search that didn't result in an arrest but I've yet to hear of one.

    4. "Without" is a perfectly good American word. "Sans" makes you sound like a faggy efette Frenchman. Speak American Damnit!:P Freedom Fries anyone?

    5. Next time you get jacked up (adverse contact, not friendly), and you will get jacked up again, you might want to try saying in a loud and clear voice for all to hear. No I won't tell you my name. no you can't search me. No you can't take my wallet out of my pocket. no you can't take my ID out of my wallet. No you can't reach into my pocket. Take your hand out of my pocket

    6. Next time you are in cuffs and someone asks you if they are OK ,say that they hurt. You might get the sympathetic cop who realizes that the cuffs are overkill.

    7. There might be other stuff that's worth writing but I just don't feel like it right now. Keep up the good work. Educate 'em when you can, praise 'em when the deserve it and beef 'em when they earn it.

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    ConsideringOC wrote:
    My question after reading the transcripts is.... Did security ask you to leave the premises.. and did you return, armed or not, in violation of 602 pc?
    I'm having difficulty finding the specific situation in PC 602 that you are implying would be a tresspass instance in this situation. Please quote the specific paragraph that you are referring to.
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    grumpycoconut wrote:
    2. You might call something a "Terry stop" - a detetion based on reasonable suspicion that a crime has been/is being/ might in the immediate future becommitted and that the person detainedmight beinvolved. The attendant "frisk" would then be a brief search of the exterior of the clothingintended to reveal the presence of weapons or other contraband readily identifiable to the officer. If it feels like a gun or knife or pot pipe the cop can go after it provided that he can articulate that it plainly felt like what it was. Mystery objects require a different approach.
    I'm not sure about the pot pipe part. The Terry court held that, "Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed."

    It's important to note three things here.

    One, that the police officer conducting the Terry stop has to believe that his or other's safety is at risk along with having reasonable articulable suspicion that a crime has or is about to take place. Having RAS isn't enough to also conduct a search.

    Two, that a Terry stop only permits a search for weapons. Terry doesn't allow for a frisk for anything else.

    Three, that the individual must be perceived as being armed AND dangerous. Being perceived as being armed isn't enough, being perceived as being dangerous isn't enough, they must both be present to allow for a frisk under Terry.


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    grumpycoconut wrote:
    3. Digging into your pockets or socks or underwear or other stuff is rightly called a "search" and requiresyour consent or probable cause to be legal. Legal in this case means that evidence recovered is admisible in court. I'd love to see someone bring a successful civil rights case based on an illegal search that didn't result in an arrest but I've yet to hear of one.
    MATTHEW A. ST. JOHN,

    Plaintiff,

    v. No. 08-994 BB/LAM

    DAVID McCOLLEY and

    THE SIX UNKNOWN OFFICERS OF THE

    ALAMOGORDO DEPARTMENT OF PUBLIC SAFETY,

    each in their individual capacities,

    Defendants.

    1. St. John's Fourth Amendment Claims

    Mr. St. John asserts claims arising from the Fourth Amendment's prohibition on unreasonable searches and seizures.3 The Fourth Amendment applies to the states through the Fourteenth Amendment's Due Process Clause, see, e.g., Jones v. Hunt, 410 F.3d 1221, 1225 (10th Cir. 2005), and provides, in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . " U.S. Const. amend. IV. Mr. St. John claims that he was subjected to an unreasonable seizure when Defendants removed him from the Theater and that he was subjected to an nreasonable search when Defendants patted him down. In response, Defendants claim that no Fourth Amendment violation took place and, alternatively, that Mr. St. John's recovery is barred by qualified immunity.




    Conclusion
    Mr. St. John's motion for summary judgment is granted with regard to liability on Plaintiff's claims under the Fourth Amendment and New Mexico Constitution. Mr. St. John's motion for summary judgment is denied with regard to his battery and false arrest claims.

    Defendants' motion for summary judgment is granted with regard to Mr. St. John's false arrest claim, but is denied with regard to Mr. St. John's Fourth Amendment, New Mexico constitutional, and battery claims. Defendants' motion for summary judgment is also denied with regard to qualified immunity.






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    pullnshoot25 wrote:
    Show me where it is illegal to lie to a normal police officer and I will rescind my statement. It is only illegal to lie to a Federal officer.
    Nate, there are certain instances where lying to a California Peace officer is a crime.California VehicleCode Section 31 states,"No person shall give, either orally or in writing, information to a peace officer while in the performance of his duties under the provisions of this code when such person knows that the information is false."

    The problem is that the above is in the Vehicle Code and not the Penal Code. So the assumption is that you give a false name or use a false ID or other false information when stopped for a driving infraction. I don't know of any instances where it has been applied to a situation not involving a vehicle stop.




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    Toe,

    Here's how you get a pot pipe out of a frisk in a Terry stop. You have reasonable suspicion enough to make the stop and conduct a frisk. The standard of proof to permit this is real low by the way. You do the frisk and feel a pot pipe in a pocket. The fact that you felt it was a pot pipe is the key here. Your training and experience tells you what pot pipes look and feel like. It also tells you that tobacco is almost never smoked in a pot pipe and that almost all pot pipes have a "usable amount" ofmarijuana in them. Usable amount is defined as any amount sufficient to be manipulated and ingested in the regular way. Plain sight also includes plain smell and plain feel. You plainly felt the pot pipe. Marijuana is contraband and you now have probable cause (a set of facts and circumstances that lead a reasonable officer to believe that a crime was comitted and that the person comitted it)to believe thatthe friskee is in possession of contraband. Probable cause is good. You reach into the pocket, extract theevil contraband and receive a cookie from your sergeant.

    Viola, reasonable suspicion evolves into probable cause enabling a search and arrest. By the way, not having reasonable suspicion is no bar to a similar evolution starting with a consensual contact.

    This is not theoretical knowledge by the way. I've done it once or twice.

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    Edward Peruta wrote:


    Conclusion
    Mr. St. John's motion for summary judgment is granted with regard to liability on Plaintiff's claims under the Fourth Amendment...




    http://www.examiner.com/x-5103-Wisco...-on-open-carry



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    grumpycoconut wrote:
    You do the frisk and feel a pot pipe in a pocket. The fact that you felt it was a pot pipe is the key here. Your training and experience tells you what pot pipes look and feel like. It also tells you that tobacco is almost never smoked in a pot pipe and that almost all pot pipes have a "usable amount" ofmarijuana in them. Usable amount is defined as any amount sufficient to be manipulated and ingested in the regular way. Plain sight also includes plain smell and plain feel. You plainly felt the pot pipe. Marijuana is contraband and you now have probable cause (a set of facts and circumstances that lead a reasonable officer to believe that a crime was comitted and that the person comitted it)to believe thatthe friskee is in possession of contraband. Probable cause is good. You reach into the pocket, extract theevil contraband and receive a cookie from your sergeant.

    Viola, reasonable suspicion evolves into probable cause enabling a search and arrest. By the way, not having reasonable suspicion is no bar to a similar evolution starting with a consensual contact.

    This is not theoretical knowledge by the way. I've done it once or twice.
    As always, thanks for the reply. I definitely appreciate hearing a new perspective on these matters.

    I'm sure this scenario has been played out in the lower courts time and time again, but I can't believe that the Supreme Court would have a favorable opinion these tactics.

    Let's say you come up on a person, you have RAS on them, you feel that they are armed and dangerous. You conduct your Terry stop and feel what you think is a pot pipe. The suspect is mute when you ask him what it is. You pull it out believing you have PC but you pull out a brand new tobacco pipe. Now what?

    My point is, a police officer can usually determine if he has PC and he'll be right a lot of the time. When he isn't right though, he's violated the fourth amendment and has opened himself up to a potential lawsuit (sucks, but it's true). If I was a defense lawyer, I'd be moving to suppress every non-weapon item found during a Terry stop. Would I be successful in a lower court? Probably not. Would I be successful in the Supreme Court? I think I probably would be.

    ETA: Actually I'm going to change my mind here after reading some of Illinois v. Gates. That court held that there has to be a "fair probability that contraband or evidence of a crime will be found in a particular place." In Grumpy's example, based on his experience, there would be a fair probability. He could be wrong sometimes, but he'd probably be saved by qualified immunity.

    I feel that the Illinois v. Gates decision is entirely too broad though. If I'm walking out of a head shop in the Haight, is there a fair probability that I have drugs at home or on my person? Yeah, there is. Does that entitle a police officer to obtain a search warrant? I sincerely hope not.

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    pullnshoot25 wrote:
    Streetbikerr6 wrote:
    I read the story, great post I hope you get the information you are looking for although I am unclear on the part whether you were OC'ing or not? Because they clearly said they were charging you for carrying a concealed firearm. So if you were OC'ing, is it ok for you to tell them..

    "I was asked if I had a firearm on my person, to which I responded that I did not"

    Isnt that obstruction of justice to lie to them? I guess you could tell them nothing instead, but lieing is a different story is it not?



    Now if you had no firearm on you at all then obviously this question has no place though I am still unclear about that part as well.

    You can lie to a cop all you want, just not to a federal officer.

    In this instance, I did not lie. I had no gun on me. Where it was I will not say (that is irrelevant anyways) but I will say that it was not on me. Thus, I answered truthfully.

    In the future, I will not answer any more of these questions from cops. I will see how they like silence.
    I thought everyone knews--talking to the police, other than to assert your Constitutional rights generally only brings more problems than it solves...

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    grumpycoconut wrote:
    Toe,

    Here's how you get a pot pipe out of a frisk in a Terry stop. You have reasonable suspicion enough to make the stop and conduct a frisk. The standard of proof to permit this is real low by the way. You do the frisk and feel a pot pipe in a pocket. The fact that you felt it was a pot pipe is the key here. Your training and experience tells you what pot pipes look and feel like. It also tells you that tobacco is almost never smoked in a pot pipe and that almost all pot pipes have a "usable amount" ofmarijuana in them. Usable amount is defined as any amount sufficient to be manipulated and ingested in the regular way. Plain sight also includes plain smell and plain feel. You plainly felt the pot pipe. Marijuana is contraband and you now have probable cause (a set of facts and circumstances that lead a reasonable officer to believe that a crime was comitted and that the person comitted it)to believe thatthe friskee is in possession of contraband. Probable cause is good. You reach into the pocket, extract theevil contraband and receive a cookie from your sergeant.

    Viola, reasonable suspicion evolves into probable cause enabling a search and arrest. By the way, not having reasonable suspicion is no bar to a similar evolution starting with a consensual contact.

    This is not theoretical knowledge by the way. I've done it once or twice.
    i think youre giving too much leeway to a pat down for weapons that terry allows prior to RAS of a crime.

    but you are on the right slippery slope of intrusive 4A violations.

    you see a banger, accost him, pat him down, find a pipe.

    you really need RAS of the pipe before the search,beforeit can be used asevidence!
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

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    I can tell you from experience that the police I have crossed believe that the end justifies the means.

    They can illegally detain, search, even seize to find something. The fact they find it makes them right, and good luck fighting it later. . . They will have plenty of time to fabricate their RAS. Even if they are wrong, what are you going to do about it?

    Vegas money is on nothing.

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    Toe,

    I'm gad you found the relevant citation. As you read, the Supremes are the ones who allowed what I described to be the operating law of the land. The Supremes have just as much interest in maintaining order and stomping down you little people as the legislators and executive. (paranoid hyperbole off) Cops usually don't go making stuff like this up on their own. They, like all other legal and governmentprofesionals know that if you play by "ALL" the rules you can do quite a bit that seems to fly in the face of what is understood by the common man. Let's hear it for lawyers! YEAHHHHH! On top of all that, if the pot pipe is in reality a tobacco pipe, you dust him off, pat him on the popo and send him traipsing merily down the road. Smart cops everywhere know that you can do that quite easily if you keep a cheerful face and save your real thoughts and words for later behind the donut shop.

    Defender,

    I'm not giving anyone any leeway. The Supremes have done that. I merely explained how the Supremes' opinions have been put into practice. As for your slippery slope concerns, If anyone greased the slope its your legislators with their endless spewingof reams of laws, your judges with their lawyerly splitting of hairs and finally your executive who collectively know that rules (ALL OF THEM)were made to be played by and with.

    Ifa cop were tosee your hypothetical banger the steps of the dance are well known and easy to follow.Step 1. Recognize him as a banger. He's worth looking at twice because you (the collective you) have decided that he is bad. Step 2. Find a reason to say hi. There's plenty of laws you folks have passed that give a smart cop reason to detain said banger. Step 2a. No law violation, no problem. That's what the consensual encounter is for. The rules don't say that a cop can't talk to anyone they want to so they can talk to anyone they want to, just like you. It's not the cop's fault that our banger is no constitutional scholar and is likely to give up consent and probable cause if given half a chance. Step 3. If your banger turns out to somehow be clean, again no problem. Dust him off, send him packing and jack him up next time. After all, that's what the citizenry wants.

    If the cop didn't dance this dance would you praise him for his strict adherence to theConstitutionor curse him for a neglectful slugwhen that same banger ripped you off when your turn came around. Balancing security and freedom takes a bit of work doesn't it? Remember, you made him a banger. Is your answer different if our poor benighted citizen is a doctor or a soccer mom? Can you admit that you are every bit the classist git the rest of us are?

    *None of the above is intended as an insult or attack or invitation to an interwebz brawl.

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