Posted on 08/25/2013 2:36:07 PM PDT by Jacquerie
The questions you raised are important. Who gets to decide what a search is, and what is reasonable? I am asking for your opinion on the minimum bar of what is unreasonable, so we can know what the minimum security of our person is against the state.
-PJ
What confused them?
I had a black passenger in my car. They saw the black passenger as I drove by, and then a white guy got out, not matching the description.
The usual approach is the police must have probably cause.
They have to document in their report what their probable cause was.
If they did not have probable cause, the evidence found in their search is not admissible.
There is a general permission to search, for the officer’s safety, someone in the course of an arrest, but again the arrest requires probable cause.
The decision by the courts to enforce the search and seizure provisions by banning evidence is, to me, insufficient.
I would suggest that in some cases of police misconduct evidence should be banned, AND the police officer should be personally liable for destruction he does, using civil court proceedings. In some cases, police should be found guilty of the crime of kidnapping. That finding should be made by a court, but in practice, District Attorney’s are loath to prosecute police, unless the abused person has a lot of political clout. Police officer unions have significant funding available and clout.
The good news and bad news is prosecution decisions are made by DAs, normally elected officials in states, or appointed by politicians for federal offenses.
Interesting video.
They apparently didn’t have probable cause, and should have let her go. If they had probable cause, they should have been able to state what the probable cause was. Records checks shouldn’t be sufficient for probable cause. They could have done the records check as the driver continued on their way.
The supervisor, properly, permitted them to go on their way, after he eventually found out there was no probable cause.
Problem is, police have management policies that require a certain number of searches, tickets etc. Further, they are forbidden to use race as probable cause. So how do you get your quota of searches? You try to pick out compliant people who have nothing to hide, and be sure to pick out enough ‘white’ people to provide statistical cover for the non-whites that you get. That appears to be what they did here, and surprise, she was not compliant. By blocking traffic, she put in danger the units quota of searches.
Acute failure of the victim selection process.
-PJ
The woman interpreted secondary holding as being detained, and asked if she was being detained or was free to go? She refused to be detained for the simple act of exercising her rights.
The question then becomes, back to your first point, how much deference is a common citizen expected to give law enforcement, as you initially were living in the gray areas with your post, and this woman was directly confronted with it on a highway in the here and now?
And then to bring it back to the larger point of this thread, that young border agent is an example of an elitist attitude that has developed in our government, at all levels, that the state is right, that the people are there to serve the state, and that the state can arbitrarily decided in an ad hoc fashion what the law is, when it is to be applied or ignored, and what the consequence of disobedience is to be.
How is a society to lawfully bring back into alignment an arrogant government that has swung so far outside of its boundaries, and is being operated by elites who have no interest in restoring the balance of power between them and us?
-PJ
I agree. Refusing permission to search is not sufficient for probable clause of anything. Refusing permission requires the police officer to have probable cause before he searches. That could be a broken tail light.
Some police officers will smash out a tail light, but normally don’t want to do that where it can be witnessed, as they could become personally liable. Hence the direction to move off to the side.
Of course some police officers will assert that ‘they smelled pot” when they did not, and will plant evidence. Of course perjury by police is also against the law.
Perhaps you recall the case of Cory Maye, who was convicted of murder when police broke into his house without a warrant. He shot and killed one of the police officers, and as it happened, he shot the only police officer who got the warrant (for the house next door) but who had not documented his probable cause. The judge did not bother to find out what the probable cause was for the warrant that the judge signed.
Cory Maye did have pot in his house, but the circumstances in my mind should have forbade the police from using any evidence derived from their illegal break in, to include the body of the deceased police officer as evidence.
-PJ
My point is the smell of pot is something that is impossible to disprove.
So probable cause can be manufactured out of nothing, if a crooked police officer so desires. Such would be legal, but impossible to disprove later.
Protection from a crooked cop after the fact is very difficult.
I don’t smoke pot, but I do recognize the problems for liberty that the “War on Some Drugs” creates.
Don't let the door hit you in the behind as you leave.
Oh, don’t get me wrong, I’m not leaving; this is my issue. I’m just not wasting my time on you...
I'm honored, thank you.
But, I've seen how much progress you are having on "your" issue.
A hint: drop the juvenile attitude.
You have no idea how much progress we are making. But, you can live and learn; the next few months are going to be very interesting I can assure you.
Don't delude yourself. You aren't making progress with anyone that matters.
The only way you can amend the Constitution is with 2/3rds of Congress or 34 of the state legislatures. You aren't going to get 2/3rds of the House and the Senate to propose any of your amendments.
None of the current 27 amendments were submitted by 3/4ths of the states legislatures. The 17th Amendment appeared to be on that path, but Congress acted preemptively and proposed the amendment for ratification. The Balanced Budget Amendment made it to 32 states, but 10 have since rescinded it. It's not clear that rescission is allowed, but without the last 2 states, it doesn't matter.
Interestingly, the concern in both cases was the "runaway convention". I've seen that same debate here and frankly, I think it's overblown, and nothing more than a diversionary tactic to sway people that don't know any better. A Constitutional convention can completely rewrite the Constitution, and it wouldn't matter. Without the approval by 38 state legislatures, it's null and void, and any wild and crazy ideas will easily be refused by at least 13 states -- ANY 13 states.
Amending the Constitution is difficult. The process was designed to be that way, so that changes could not be made without a broad consensus. You don't have a broad consensus, and never will for many of your proposals -- ESPECIALLY the one that makes it easier to amend the Constitution.
Those who cannot remember the past are condemned to repeat it. (George Santayana). You also might find it interesting to what George and Winston Churchill had to say about fanaticism.
You are out of touch, and you have no clue what we are doing.
Evidence? This crap: “You aren’t going to get 2/3rds of the House and the Senate to propose any of your amendments.” What on the entire planet could give you the impression that we are going after the Congress?
The rest of your post has some historical truth, but is squanders any possible insights by wallowing in irrelevancy.
Here’s the only thing you say that is sensible, true and relevant: “Amending the Constitution is difficult. The process was designed to be that way, so that changes could not be made without a broad consensus.”
Yep, and that’s why we are working tough and working smart and working focused to develop that consensus within key states. We’re organized, we’re connected, we’re effective, and we’re going to win this one.
Yes, I do. Because, I've been through it before.
You are the one that has no clue, because you don't realize that it's been tried before and failed, for far less controversial issues.
You can't even get a consensus here on Free Republic. What makes you think you can achieve one in 34 state legislatures?
Those who cannot remember the past are condemned to repeat it.
btt
I have a middling active ping list going for Article V state amendment items.
Shall I add you to the list?
Youbetcha!
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