My latest detainment

[bigtoe416]

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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.

 

[suntzu]

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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...

 

[1245A Defender]

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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!

 

[Theseus]

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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.

 

[grumpycoconut]

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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.

 

[JC]

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After listening to the recording and then reading the officer's report, the officer seems to cover his actions with what I would think is unusually detailed excuses for doing what he did regarding "bulge in pocket". I am not used to reading police reports so I may be off base here but, if the officer did not know pullnshoot was as knowledgeable of the law(his comments wanting to know statute etc.), would his report have been written up less detailed(leaving his actions more questionable by higher ups) thinking pullnshoot was an ignoran t citizen? Maybe the officer may not even have seperated pullnshoot from the friends(witnesses). Just thinkin out loud here.

 

[mjones]

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JC wrote:

After listening to the recording and then reading the officer's report, the officer seems to cover his actions with what I would think is unusually detailed excuses for doing what he did regarding "bulge in pocket". I am not used to reading police reports so I may be off base here but, if the officer did not know pullnshoot was as knowledgeable of the law(his comments wanting to know statute etc.), would his report have been written up less detailed(leaving his actions more questionable by higher ups) thinking pullnshoot was an ignoran t citizen? Maybe the officer may not even have seperated pullnshoot from the friends(witnesses). Just thinkin out loud here.

No, everything is pretty much business as usual. Personally if I was his supervisor I would want much better report writing, I think its slightly substandard.

 

[Daeglan]

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One thing you did not request that you should request is the dash cam footage. They may or may not have any but get it if you can. most Police cars seem to have them now. It will be good to use there own records against them.

 

[CA_Libertarian]

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Daeglan wrote:

One thing you did not request that you should request is the dash cam footage. They may or may not have any but get it if you can. most Police cars seem to have them now. It will be good to use there own records against them.

Most police cars do NOT have camera. The systems cost a lot of money to install and upkeep.

And even if they do, don't count on it being there unless it shows YOU did something wrong.

My understanding from a LEO friend is that SOP is for officers to erase and reuse recording media (disk/tape) every 24 hours. So by the time they receive your FOIA, "oops we already deleted that video because we didn't think it was needed in order to investigate a crime."

While I'm not sure this practice is legal, it seems they get away with it right now.

 

[Daeglan]

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That just says to me act fast. And it does not hurt to ask. Don't count on it being there but get it if you can. Might be worth having a form already to go so you could easily get the request in before its erased. Besides maybe we can change that by nailing them for destroying evidence.

 

[Citizen]

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Daeglan wrote:

That just says to me act fast. And it does not hurt to ask. Don't count on it being there but get it if you can. Might be worth having a form already to go so you could easily get the request in before its erased. Besides maybe we can change that by nailing them for destroying evidence.

Does your state require that an FOI request be made in writing?

If not, make the requestverbally right at the very end of the detention/e-check.

Or, maybe call the station commander and make the request verbally.

If FOI requests are required to be in writing, you could always immediately e-mail or drive a written copy directly to the police station. Write it on a napkin if you have to. Heh, heh, heh. Spray paint it on the front windows of the police station. (joke).

Having something pre-written, where all you have to do is fill in the date, identifying info of the cops, etc.might be nice.

 

[Edward Peruta]

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Most states have a public records retention schedule which sets out specific time periods that must be met priior to erasure or destruction.

A quick Google search found this.



http://ag.ca.gov/opinions/pdfs/02-207.pdf

A better search or questions may turn up better and more direct information

 

[Edward Peruta]

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Here is another very interesting case to study.

These apprear to be the facts in the recent California Incident.

1. A call was made to and received bylaw enforcement.

2. A description was received and transmitted via radio to patrol officers

3. Three individuals were observed with no firearms in plain view.

4. One or more of the indvidualswas searched and a tape recorder was found.

Now read the case out of Dade County Florida and see if you can find any similar circumstances.





[align=center]FLORIDA, PETITIONER v. J.L.





[align=center]on writ of certiorari to the supreme court of florida




[align=center][March 28, 2000]
[/align]
[line]


Justice Ginsburg delivered the opinion of the Court.

The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person. We hold that it is not.

[/align]


[/align]
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1993



[align=center]FLORIDA v. J.L. [/align]


[align=center]certiorari to the supreme court of florida [/align]


[align=center]No. 98-1993. Argued February 29, 2000--Decided March 28, 2000 [/align]
After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements. One of the officers frisked J.L. and seized a gun (Tape Recorder)from his pocket. J.L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. The trial court granted his motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment.

Held : An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 30 . Here, the officers' suspicion that J.L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White , 496 U.S. 325, 327 . The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J.L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great-- e.g., a report of a person carrying a bomb--as to justify a search even without a showing of reliability.

727 So.2d 204, affirmed.

Ginsburg, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Rehnquist, C.J., joined.

 

[grumpycoconut]

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CA_Libertarian wrote:

Most police cars do NOT have camera. The systems cost a lot of money to install and upkeep.

And even if they do, don't count on it being there unless it shows YOU did something wrong.

My understanding from a LEO friend is that SOP is for officers to erase and reuse recording media (disk/tape) every 24 hours. So by the time they receive your FOIA, "oops we already deleted that video because we didn't think it was needed in order to investigate a crime."

While I'm not sure this practice is legal, it seems they get away with it right now.

You'reright about one thing in your post. Car cams are expensive and a pain in the hind end and break alot. They are also about useless for anything that doesn't happen right off the nose of the cop car.We've allseen enough dashcam footage to see hownarrow the field of view is.

Your conspracy theory is showing a bit though when it comes to the recording/erasing/evidence destroying/corruptioncycle. The department I worked for and all of the departments in the nearby area treated every tape as evidence regardless of what was on it. They were stored in evidence and unless they held actual evidence weren't recycled for at least a year or two. I'm sure other department's policy and practice may differ but one cop's answer does not coverevery cop's practice.

I'll throw you a little conspiracy bone though. Every cop knows what his camera can see and its real easy to park your car so that the fun happens off stage.

 

[N6ATF]

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grumpycoconut wrote:

CA_Libertarian wrote:

Most police cars do NOT have camera. The systems cost a lot of money to install and upkeep.

And even if they do, don't count on it being there unless it shows YOU did something wrong.

My understanding from a LEO friend is that SOP is for officers to erase and reuse recording media (disk/tape) every 24 hours. So by the time they receive your FOIA, "oops we already deleted that video because we didn't think it was needed in order to investigate a crime."

While I'm not sure this practice is legal, it seems they get away with it right now.

You'reright about one thing in your post. Car cams are expensive and a pain in the hind end and break alot. They are also about useless for anything that doesn't happen right off the nose of the cop car.We've allseen enough dashcam footage to see hownarrow the field of view is.

Your conspracy theory is showing a bit though when it comes to the recording/erasing/evidence destroying/corruptioncycle. The department I worked for and all of the departments in the nearby area treated every tape as evidence regardless of what was on it. They were stored in evidence and unless they held actual evidence weren't recycled for at least a year or two. I'm sure other department's policy and practice may differ but one cop's answer does not coverevery cop's practice.

I'll throw you a little conspiracy bone though. Every cop knows what his camera can see and its real easy to park your car so that the fun happens off stage.

Just one thing on that. Out of countless hours of listening to SDPD radio traffic, the only time I ever heard them discuss tapes as evidence was when ABLE (SDPD's chopper) just completed a pursuit or other critical overflight. They would say they'll leave the recording media at the base the next time they land for refueling, or EOS if they had to do a quick refuel and launch again to a pending call.

Perhaps they didn't have that many dash cams in their cruisers, or when they ran pursuits, they would switch out the lead car so often it would be a bear to edit all the tapes together for trial, so at best they might review it while writing reports at the substations and storefronts afterward.

Maybe sometime in the next 50 years they'll have live video feeds from everyone up to dispatch and the command staff...

 

[CA_Libertarian]

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grumpycoconut wrote:

Your conspracy theory is showing a bit though when it comes to the recording/erasing/evidence destroying/corruptioncycle. The department I worked for and all of the departments in the nearby area treated every tape as evidence regardless of what was on it. They were stored in evidence and unless they held actual evidence weren't recycled for at least a year or two. I'm sure other department's policy and practice may differ but one cop's answer does not coverevery cop's practice.

No conspiracy theory here. I was just relaying what I've heard from people in the business and their experience in different departments.

 

[bigtoe416]

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bigtoe416 wrote:

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.

After thinking about this some more yesterday, I'm going to reverse my reversal and go with the stance that taking a pot pipe out of a person's pocket cannot be legal in California. This argument can actually use logic from Florida v. JL, which has nothing to do with marijuana.

In California, the possession of marijuana isn't strictly illegal. It's legal for medical purposes. If I have a pot pipe in my pocket, it isn't PC, even if the officer knows it is a pot pipe. This is a totally different story in other states, but in Cali, this logic should hold. Taking this a step further we can argue that having a police officer see you smoking pot is still not PC.

Similarly, having a police officer see a concealed weapon on you isn't PC, nor is having a loaded weapon is PC. If an officer conducts a 12031(e) check and finds that the gun is loaded, he still doesn't have PC because he hasn't verified that you don't have a ccw. If an officer sees that you have a weapon with 1000' of a school, he doesn't have PC either because you could have a ccw or permission from the superintendent to enter the school zone.

 

[Sons of Liberty]

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bigtoe416 wrote:

bigtoe416 wrote:

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.

After thinking about this some more yesterday, I'm going to reverse my reversal and go with the stance that taking a pot pipe out of a person's pocket cannot be legal in California. This argument can actually use logic from Florida v. JL, which has nothing to do with marijuana.

In California, the possession of marijuana isn't strictly illegal. It's legal for medical purposes. If I have a pot pipe in my pocket, it isn't PC, even if the officer knows it is a pot pipe. This is a totally different story in other states, but in Cali, this logic should hold. Taking this a step further we can argue that having a police officer see you smoking pot is still not PC.

Similarly, having a police officer see a concealed weapon on you isn't PC, nor is having a loaded weapon is PC. If an officer conducts a 12031(e) check and finds that the gun is loaded, he still doesn't have PC because he hasn't verified that you don't have a ccw. If an officer sees that you have a weapon with 1000' of a school, he doesn't have PC either because you could have a ccw or permission from the superintendent to enter the school zone.

Leave me alone...I'm trying to have an argument with myself!

"Truly, you have a dizzying intellect." - Man in Black to Vizzini from The Princess Bride