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| 5/24 |
| 2006/5/7-10 [Reference/Law/Court, Politics/Domestic/President/Bush] UID:42968 Activity:nil |
5/7 NIA Deputy Director General Michael Hayden: No probable cause mentioned
in the 4th Amendment. Easily refuted.
http://monkeydyne.com/lj/probable_cause.mov
\_ Probable cause applies to warrants.
You can search without a warrant, as long as it's reasonable, like
when a police officer pats you down for weapons if he or she has a
reasonable suspicion you might endanger them, orwhen Dubya says so.
reasonable suspicion you might endanger them, or when Dubya says so.
\_ ...also called probable cause.
\_ do your homework: http://csua.org/u/fr5 (flexyourrights.org)
\_ do your homework
http://csua.org/u/fr5 (flexyourrights.org)
http://csua.org/u/fr6 (findlaw.com)
"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 [392 U.S. 1, 3] regardless of whether he has
probable cause to arrest that individual for crime or the
absolute certainty that the individual is armed.
(a) Though the police must whenever practicable secure a
warrant to make a search and seizure, that procedure cannot
be followed where swift action based upon on-the-spot
observations of the officer on the beat is required. ..."
This scheme is justified in part upon the notion that a
'stop' and a 'frisk' amount to a mere 'minor inconvenience
and petty indignity,' which can properly be imposed upon
the [392 U.S. 1, 11] citizen in the interest of effective law
enforcement on the basis of a police officer's suspicion."
Can't blame you for not knowing, though, since it took a
Supreme Court challenge to resolve this ... in '68.
\_ "5. 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 [392 U.S. 1, 3] regardless of whether
he has probable cause to arrest that individual for crime
or the absolute certainty that the individual is armed."
Please to be pointing out where this applies to wiretaps.
\_ "when Dubya says so"
so, do you acknowledge you were wrong about "also called
probable cause"?
\_ Am more inclined to quibble endlessly with you about
whether said "probable cause" in this case is the
suspicious behavior of suspects, but suspect that
we're of more similar than dissimilar mind.
\_ eh, I've been kind of doing a Colbert thing, so
you're right about that part. |
| 5/24 |
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| csua.org/u/fr5 -> www.flexyourrights.org/fourth_amendment_supreme_court_cases about FYR News BUSTED Endorsements "The ASU ACLU screened BUSTED in the Student Union, and over 200 people came to see it. We actually had to turn people away from the event, because we maxed out capacity and, as it was, over 50 people were left standing for the duration of the film. Search Site Go Fourth Amendment Supreme Court Cases Stop and Frisk Terry v Ohio (Stop and Frisk) 392 US 1, 88 SCt. He approached the men and identified himself, then performed frisks of defendants Chilton and Terry and discovered illegal concealed weapons. Defendants were convicted and appealed, claiming that the frisk violated their Fourth Amendment right against unlawful searches and seizures. The Supreme Court upheld the conviction, finding that when a law enforcement officer has "reasonable grounds" for suspecting that a criminal suspect may be armed, he may pat down the outer layer of the suspect's clothing for weapons. The ruling held that the Fourth Amendment protection against unreasonable searches and seizures is not violated when a pat-down is performed based on reasonable suspicion for the purpose of ensuring officer safety. What you should know about stop and frisk law: The Court's ruling in Terry v Ohio has been understood to validate the practice of frisking (or patting down) suspects for weapons under diverse circumstances. Generally, law enforcement officers will perform frisks at their discretion, regardless of the "reasonable suspicion" standard established by the Terry ruling. Thus, it is not uncommon for frisks to be conducted for investigatory purposes where no actual evidence of a threat to officer safety exists. Due to the prevalence of police frisks it is important for citizens to understand the rationale behind police authority to pat down suspects, and the limitations the Court has placed on that authority: 1 After initiating contact, police officers may pat down criminal suspects for weapons in order to provide for their safety and that of the public. This police practice is rarely, if ever, a violation of your constitutional rights. Your proximity to the officer creates a limited window of opportunity in which to assert your rights. If you do not wish to be searched following the pat down, verbally indicate your refusal to be searched as soon as possible in order to avoid any misunderstandings. The Supreme Court has ruled that suspicious items other than weapons retain their Fourth Amendment protection during a frisk. This means that if a police officer claims that objects in your pocket feel like drugs, the objects cannot be further investigated without your consent. Investigatory Stops and Detentions Florida v Bostick 501 US 429, 111 S Ct. Lauderdale, the bus was boarded by two uniformed narcotics officers who were performing a routine inspection of the bus. Without reasonable suspicion, the officers approached Bostick in his seat and requested to see his ticket and identification. Finding nothing out of the ordinary, the officers proceeded to request consent to search his luggage. Bostick reportedly consented, at which point the officers performed a search and discovered cocaine. Bostick was subsequently convicted, and appealed claiming that due to his apparent inability to leave the bus, the encounter constituted an unlawful seizure, the evidence obtained through which must be suppressed. The Supreme Court upheld Bostick's conviction, finding that the practice of contacting citizens on buses in this fashion did not constitute an unlawful seizure under the Fourth Amendment. The Court's ruling rejected Bostick's claim that because the officers were armed and positioned such that he could not leave his seat or the bus, the encounter was a seizure. Since it was never directly communicated to the defendant that he was not free to leave, the Court concluded that the police officers' actions did not violate the Fourth Amendment. So long as nature of the officers' contact with the defendant is held constitutionally valid, his consent to be searched and the resultant evidence are held valid as well. What you should know about investigatory stops and detentions: Florida v Bostick is a clear example of law enforcement officers' systematic reliance on the tendency of citizens to overestimate police authority. Moreover, the Supreme Court's ruling in this case indicates a willingness to accommodate manipulative law enforcement practices in order to prevent the Constitution's provisions from interfering with the arrest of drug suspects. So long as the police and the courts cooperate in using the ignorance of suspects as a tool through which to obtain convictions, it is extremely important for citizens to know their rights. In the context of investigatory stops and detentions, here are a few important principles that should be remembered: 1 Police may stop you for any reason, but are not entitled to any information other than your identification 2 Police may not detain you without reasonable suspicion 3 Police may not search you without either probable cause or your consent. An investigatory stop is a particularly difficult encounter for the citizen, because police officers are experienced at controlling the situation. It is an important reality, however, that it is actually the citizen who technically controls all police encounters until evidence emerges to justify police intrusion into the citizen's privacy or freedom of movement. Police cannot detain you only because you refused a search. Consent Searches Schneckloth v Bustamonte 412 US 218, 93 SCt. It was determined that the officer did not pressure the driver into consenting. In the back seat he found three checks which had been stolen from a car wash. Defendant Robert Bustamonte challenged his arrest, arguing that while he had consented voluntarily, he had not been informed of his right not to consent to the search. In Schneckloth v Bustamonte, the Supreme Court ruled that consent is valid as long as it is voluntarily given. The ruling held that police may not use threats or coercion to obtain consent, but that they need not inform suspects of their right not to consent to a search. In reaching this decision, the Court rejected the stricter "waiver test," which holds that suspects must be fully informed of their Fourth Amendment right against unreasonable searches and seizures before they can give valid consent. What you should know about consent searches: As demonstrated by the Court in the Schneckloth ruling, the police are under no obligation to inform citizens of their Fourth Amendment rights when requesting to perform a search. This means it is up to the individual to understand and exercise their right not to be searched. Some states require that police obtain the citizen's signature on a waiver form before conducting the search, however in most places police merely need to obtain the citizen's permission verbally. This can be a tricky situation because police will sometimes interpret a broad range of statements or actions as implied consent. Here's what you should remember about police search requests: 1 According to the Fourth Amendment, you cannot be searched without a warrant or probable cause, unless you consent. Consenting makes it easier for the officer to arrest you 3 If you consent to a search, any evidence found can be used against you in court. |
| csua.org/u/fr6 -> caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=392&invol=1 Cases citing this case: Circuit Courts US Supreme Court TERRY v OHIO, 392 US 1 (1968) 392 US 1 TERRY v OHIO. A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer garments until he felt the guns. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved. Held: 1 The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. The actions of petitioner and his companions were consistent with the officer's hypothesis that they were contemplating a daylight robbery and were armed. The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J Lefkowitz, pro se, Samuel A Hirshowitz, First Assistant Attorney General, and Maria L Marcus and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; MR CHIEF JUSTICE WARREN delivered the opinion of the Court. This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances. Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would "stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in this case when I looked over they didn't look right to me at the time." "I get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece - in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man. By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of "casing a job, a stick-up," and that he considered it his duty as a police officer to investigate further. Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the same man who had conferred with them earlier on the street corner. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or ... |
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