Sunday, April 1, 2012
Thursday, December 1, 2011
Some Case Law and Your Constitutional Rights
Here are some very important case law that governs policing and the rights of citizens:
"At some time a free society must defend not only the headline case but also the simpleright to stand peacefully in a public place, unless there exists a substantial interest of the state to forbid such conduct. Privacy has been defended as to acts in our homes and in our bedrooms. Cannot one say that the citizen who commits no wrongful act should have at least a similar right to be free of the duty fo explaining one’s peaceful presence in a public place? It is the duty of the courts to define and protect the public conduct so that only under very limited circumstances may one be ordered from the street when his conduct is beyond reproach. Until the courts determine the rights and limits of the policeman in a particular instance to direct citizens to move on, and until consideration is given to what the citizen was actually doing, not what the police officer thought the presence fo the citizen would do, ordinary persons who become rightfully stubborn at a police order will continue to have no protection. "People v. Galpern, (259 N.Y. 279, 181 N.E. 572, 83 A.L.r. 785 (1932)
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Tex., 443 U.S. 47
“if we are to remain a great and free nation—a beacon light in a world largely in darkness—we cannot tolerate the whittling away of our liberties by denying them to those whom we dislike, or with whom we violently disagree…each of us also has a duty, in our participation in public affairs, so to act as to preserve, protect and defend the rights of all of us.”230 F.Supp. 182
...even when an officer stops an individual on the basis of a reasonable suspicion of criminal activity, the Supreme Court has ruled that such a Terry stop may involve only brief questioning and "the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest." Terry v. Ohio, 392 U.S. 1, 34, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)
"the detainee is not obliged to respond. And, unless the detainees' answers provide the officer with probable cause to arrest him, he must then be released."). The Ninth Circuit has ruled accordingly. "Arrest of a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures." Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987). Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881
The district court also relied on a few district court and state appellate court decisions subscribing to the view that an arrest for refusal to identify oneself during a Terry stop would be unconstitutional. See, e.g., Timmons v. City of Montgomery, 658 F. Supp. 1086, 1093 (M.D. Ala. 1987) (agreeing with the Ninth Circuit and Justice Brennan’s concurrence in Kolender, court would find arrest under vagrancy statute would violate the Fourth Amendment); City of Pontiac v. Baldwin, 163 Mich. App. 147, 413 N.W.2d 689, 699 (Mich.App.1987) (person refusing to cooperate with officer during Terry stop cannot be prosecuted for obstruction an officer). Risbridger v. Connelly, 275 F.3d 565
Risbridger contends that the Supreme Court, beginning with Terry, has made clear that the Fourth Amendment prohibits police officers from compelling individuals to answer questions, including requests for identification, during the course of a valid investigative detention. The basis of Risbridger's assertion is the concurring opinion of Justice White in Terry, who wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. Risbridger v. Connelly, 275 F.3d 565
In Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), the defendant was arrested under a Texas statute which made it a crime for a person to refuse to give his name and address after being requested to do so by a police officer during a lawful stop. The Court held the conviction invalid because the police officers did not have a reasonable suspicion of criminal activity sufficient to justify an investigatory stop, noting that the only reason the police stopped the defendant was to ascertain his identity.
"The stop and inquiry must be 'reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio, supra, 392 U.S. at 29, 88 S. Ct. at 1884.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obligated to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released.
Risbridger contends...Officer Fadley violated Risbridger's Fourth Amendment rights by arresting Risbridger for failing to identify himself during a valid investigatory stop. Several lower federal courts, as well as some state courts, have reached this conclusion. One example is the Ninth Circuit's decision in Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir. 1987)Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)
Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975).
City of Houston v. Hill, U.S., 6/87; Peo. v Quiroga, 1DCA 6/93 "Verbal noncooperation and criticism of an officer doesn't qualify as physical resistance."
Peo v. Soun, DCA, 1995 A person cannot be handcuffed during a detention unless an exigency exists (danger to officer, escape of suspect, potential destruction of evidence). Such situation typically include when a suspect has been detained for a violent felony, burglary, possession of a weapon...
“When police officers, without arresting an individual, detain the individual for the purpose of requiring him to identify himself, they perform a seizure of his person subject to the requirements of the Fourth Amendment…The Fourth Amendment requires that the seizure of a person, less intrusive than an arrest, be based on specific, objective facts indicating that society's legitimate interests require the seizure, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Risbridger v. Connelly, 275 F.3d 565
People v. Wilkins (App. 3 Dist. 1993)
For purposes of establishing that defendant willfully obstructed peace officer in discharge of duty of officer or that defendant attempted by means of threat or violence to prevent executive officer from performing duty, if offense is committed upon officer effecting arrest, the arrest must have been lawful. 17 Cal.Rptr.2d 743, 14 Cal.App.4th 761
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Tex., 443 U.S. 47
“ A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity, (Wardlow (2000) 528 U.S. 119, 123-124; Tony C. (1978) 21 Cal.3d 888; Raybourn (1990) 218 Cal.App.3d 308.) Rather, you must have specific facts justifying your suspicion and you must be able to articulate these to a court. The court will then decide if these facts—based on the “totality of circumstances” including your training and experiences—were enough to make your suspicion objectively reasonable. (Wright (1998) 206 Cal.App.3d 1107; Lloyd (1992) 4 Cal.App.4th 724, 733.)
In Berkemer (1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any questions you put to him during a lawful detention….The Court upheld as constitutional a Nevada “stop and identify” statute and found that a detainee’s failure to identify himself could be the basis for a lawful arrest under a companion statute almost identical to Penal Code §148. (Hiibel (2004) 542 U.S. 177)…Unlike Nevada and other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code §148…Hiibel does not provide a means of arresting someone for failure or refusing to identify himself. The Ninth Circuit has ruled that a suspect’s failure to identify himself cannot, on its own, justify and arrest: “the use of section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment’s proscription against unreasonable searches and seizures.” (Martinelli (9th Cir. 1987) 820 F.2d 1494; Christian (9th Cir. 2004) 356 F.3d 1103, 1106; see also Quiroga (1993) 16 Cal.App.4th 961, 969, fn.2.)
“Generally speaking, [police] should avoid using force and/or physical restraints, such as handcuffs or guns, during a detention situation whenever possible. These “indications of custody” may cause a court to view the detention as an arrest. “Whenever the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.” (Justin B. (1999) 69 Cal.App.4th 879, 887; Antonio B. (2008) 166 Cal.App.4th 435, 440; see also Carlos M. (1990) 220 Cal.App.3d 372, 384.)
The right of a person to resist unlawful arrest cannot be denied. People v. Craig (1907) 152 Cal 42, 91 P 997
...an executive officer is not “engaged in the performance” of his/her lawful duties when “he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties”.
(CALCRIM 2652 – California’s resisting an executive officer law)
“Similarly, if you resist an executive officer who is using excessive force against you, you are entitled to exercise your right to defend yourself in accordance with California’s self-defense laws. California’s self-defense laws will protect your conduct as long as the force you use is reasonable under the circumstances.
This logic is based on the same premise as above. When an executive officer uses excessive force…even during an otherwise “lawful” arrest…the arrest becomes unlawful, and the officer is no longer “engaged in the performance of his/her duties”.
“The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties…” People v. White (1980) 101 Cal.App.3d 161, 164.
"In contrast, police knowledge of the identity of an individual they have deemed "suspicious" grants the police unfettered discretion to initiate or continue investigation of the person long after the detention has ended. Information concerning the stop, the arrest and the individual's identity may become part of a large scale data bank. In fact, the public concern advanced in support of section 647(e) is the prevention of crime, Solomon, 33 Cal.App.3d at 436-37, 108 Cal.Rptr. 867, namely the state's interest in allowing police officers to gather information which will aid them in detecting crime. The Supreme Court has recognized the significant intrusion occasioned by an identification requirement in a statute. See Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979). We believe that the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.
"Although the prevention of crime is "a weighty social objective," Brown, 443 U.S. at 52, 99 S. Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to an arrest." Lawson v. Kolender, 658 F.2d 1362
"The second reason why we believe section 647(e) intrudes upon the fundamental right to be secure against unreasonable searches and seizures is that the Solomon court improperly applied the Terry balancing test. We agree that prevention of crime is "a weighty social objective." Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979). The right of an individual wanderer to be free from the governmental intrusion of being required to furnish identification, however, is also substantial. The Supreme Court has extolled the freedom of locomotion. Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a trap for innocent acts….
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup….
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving "Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right of locomotion, to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only their persons, but in their safe conduct. The constitution and the laws are framed for the public good, and the protection of all citizens from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Lawson v. Kolender, 658 F.2d 1362
Risbridger contends that the Supreme Court, beginning with Terry, has made clear that the Fourth Amendment prohibits police officers from compelling individuals to answer questions, including requests for identification, during the course of a valid investigative detention. The basis of Risbridger's assertion is the concurring opinion of Justice White in Terry, who wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. Risbridger v. Connelly, 275 F.3d 565
"This court is not aware of any decision by a federal court holding that a person may be subjected to criminal liability based solely upon his refusal to answer an officer’s questions or identify himself during a Terry stop…" Risbridger v. Connelly, 275 F.3d 565
Under California law, the elements of false imprisonment are (1) the nonconsensual, intentional confinement of a person. (2) without privilege, and (3) for an appreciable period of time, however brief. Blaxland, 323 F.3d 1198
Force or the threat of force are not only means by which tort of false imprisonment can be achieved; fraud or deceit or any unreasonable duress are alternative methods of accomplishing tort. Scofield, 45 Cal.App.4th 990, as modified on denial of rehearing, and review denied.
Essential thing in false imprisonment is the restraint of the person. Onick, 154 Cal.App.2d 381.
If the suspect’s actions were not prohibited under any statute, then a detention will be unlawful.
Strider (2009) 177 Cal.App. 4th 1393
Krohn (2007) 149 Cal. App. 4th 1294
"At some time a free society must defend not only the headline case but also the simpleright to stand peacefully in a public place, unless there exists a substantial interest of the state to forbid such conduct. Privacy has been defended as to acts in our homes and in our bedrooms. Cannot one say that the citizen who commits no wrongful act should have at least a similar right to be free of the duty fo explaining one’s peaceful presence in a public place? It is the duty of the courts to define and protect the public conduct so that only under very limited circumstances may one be ordered from the street when his conduct is beyond reproach. Until the courts determine the rights and limits of the policeman in a particular instance to direct citizens to move on, and until consideration is given to what the citizen was actually doing, not what the police officer thought the presence fo the citizen would do, ordinary persons who become rightfully stubborn at a police order will continue to have no protection. "People v. Galpern, (259 N.Y. 279, 181 N.E. 572, 83 A.L.r. 785 (1932)
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Tex., 443 U.S. 47
“if we are to remain a great and free nation—a beacon light in a world largely in darkness—we cannot tolerate the whittling away of our liberties by denying them to those whom we dislike, or with whom we violently disagree…each of us also has a duty, in our participation in public affairs, so to act as to preserve, protect and defend the rights of all of us.”230 F.Supp. 182
...even when an officer stops an individual on the basis of a reasonable suspicion of criminal activity, the Supreme Court has ruled that such a Terry stop may involve only brief questioning and "the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest." Terry v. Ohio, 392 U.S. 1, 34, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)
"the detainee is not obliged to respond. And, unless the detainees' answers provide the officer with probable cause to arrest him, he must then be released."). The Ninth Circuit has ruled accordingly. "Arrest of a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures." Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987). Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881
The district court also relied on a few district court and state appellate court decisions subscribing to the view that an arrest for refusal to identify oneself during a Terry stop would be unconstitutional. See, e.g., Timmons v. City of Montgomery, 658 F. Supp. 1086, 1093 (M.D. Ala. 1987) (agreeing with the Ninth Circuit and Justice Brennan’s concurrence in Kolender, court would find arrest under vagrancy statute would violate the Fourth Amendment); City of Pontiac v. Baldwin, 163 Mich. App. 147, 413 N.W.2d 689, 699 (Mich.App.1987) (person refusing to cooperate with officer during Terry stop cannot be prosecuted for obstruction an officer). Risbridger v. Connelly, 275 F.3d 565
Risbridger contends that the Supreme Court, beginning with Terry, has made clear that the Fourth Amendment prohibits police officers from compelling individuals to answer questions, including requests for identification, during the course of a valid investigative detention. The basis of Risbridger's assertion is the concurring opinion of Justice White in Terry, who wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. Risbridger v. Connelly, 275 F.3d 565
In Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), the defendant was arrested under a Texas statute which made it a crime for a person to refuse to give his name and address after being requested to do so by a police officer during a lawful stop. The Court held the conviction invalid because the police officers did not have a reasonable suspicion of criminal activity sufficient to justify an investigatory stop, noting that the only reason the police stopped the defendant was to ascertain his identity.
"The stop and inquiry must be 'reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio, supra, 392 U.S. at 29, 88 S. Ct. at 1884.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obligated to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released.
Risbridger contends...Officer Fadley violated Risbridger's Fourth Amendment rights by arresting Risbridger for failing to identify himself during a valid investigatory stop. Several lower federal courts, as well as some state courts, have reached this conclusion. One example is the Ninth Circuit's decision in Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir. 1987)Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)
Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975).
City of Houston v. Hill, U.S., 6/87; Peo. v Quiroga, 1DCA 6/93 "Verbal noncooperation and criticism of an officer doesn't qualify as physical resistance."
Peo v. Soun, DCA, 1995 A person cannot be handcuffed during a detention unless an exigency exists (danger to officer, escape of suspect, potential destruction of evidence). Such situation typically include when a suspect has been detained for a violent felony, burglary, possession of a weapon...
“When police officers, without arresting an individual, detain the individual for the purpose of requiring him to identify himself, they perform a seizure of his person subject to the requirements of the Fourth Amendment…The Fourth Amendment requires that the seizure of a person, less intrusive than an arrest, be based on specific, objective facts indicating that society's legitimate interests require the seizure, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Risbridger v. Connelly, 275 F.3d 565
People v. Wilkins (App. 3 Dist. 1993)
For purposes of establishing that defendant willfully obstructed peace officer in discharge of duty of officer or that defendant attempted by means of threat or violence to prevent executive officer from performing duty, if offense is committed upon officer effecting arrest, the arrest must have been lawful. 17 Cal.Rptr.2d 743, 14 Cal.App.4th 761
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Tex., 443 U.S. 47
“ A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity, (Wardlow (2000) 528 U.S. 119, 123-124; Tony C. (1978) 21 Cal.3d 888; Raybourn (1990) 218 Cal.App.3d 308.) Rather, you must have specific facts justifying your suspicion and you must be able to articulate these to a court. The court will then decide if these facts—based on the “totality of circumstances” including your training and experiences—were enough to make your suspicion objectively reasonable. (Wright (1998) 206 Cal.App.3d 1107; Lloyd (1992) 4 Cal.App.4th 724, 733.)
In Berkemer (1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any questions you put to him during a lawful detention….The Court upheld as constitutional a Nevada “stop and identify” statute and found that a detainee’s failure to identify himself could be the basis for a lawful arrest under a companion statute almost identical to Penal Code §148. (Hiibel (2004) 542 U.S. 177)…Unlike Nevada and other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code §148…Hiibel does not provide a means of arresting someone for failure or refusing to identify himself. The Ninth Circuit has ruled that a suspect’s failure to identify himself cannot, on its own, justify and arrest: “the use of section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment’s proscription against unreasonable searches and seizures.” (Martinelli (9th Cir. 1987) 820 F.2d 1494; Christian (9th Cir. 2004) 356 F.3d 1103, 1106; see also Quiroga (1993) 16 Cal.App.4th 961, 969, fn.2.)
“Generally speaking, [police] should avoid using force and/or physical restraints, such as handcuffs or guns, during a detention situation whenever possible. These “indications of custody” may cause a court to view the detention as an arrest. “Whenever the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.” (Justin B. (1999) 69 Cal.App.4th 879, 887; Antonio B. (2008) 166 Cal.App.4th 435, 440; see also Carlos M. (1990) 220 Cal.App.3d 372, 384.)
The right of a person to resist unlawful arrest cannot be denied. People v. Craig (1907) 152 Cal 42, 91 P 997
...an executive officer is not “engaged in the performance” of his/her lawful duties when “he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties”.
(CALCRIM 2652 – California’s resisting an executive officer law)
“Similarly, if you resist an executive officer who is using excessive force against you, you are entitled to exercise your right to defend yourself in accordance with California’s self-defense laws. California’s self-defense laws will protect your conduct as long as the force you use is reasonable under the circumstances.
This logic is based on the same premise as above. When an executive officer uses excessive force…even during an otherwise “lawful” arrest…the arrest becomes unlawful, and the officer is no longer “engaged in the performance of his/her duties”.
“The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties…” People v. White (1980) 101 Cal.App.3d 161, 164.
"In contrast, police knowledge of the identity of an individual they have deemed "suspicious" grants the police unfettered discretion to initiate or continue investigation of the person long after the detention has ended. Information concerning the stop, the arrest and the individual's identity may become part of a large scale data bank. In fact, the public concern advanced in support of section 647(e) is the prevention of crime, Solomon, 33 Cal.App.3d at 436-37, 108 Cal.Rptr. 867, namely the state's interest in allowing police officers to gather information which will aid them in detecting crime. The Supreme Court has recognized the significant intrusion occasioned by an identification requirement in a statute. See Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979). We believe that the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.
"Although the prevention of crime is "a weighty social objective," Brown, 443 U.S. at 52, 99 S. Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to an arrest." Lawson v. Kolender, 658 F.2d 1362
"The second reason why we believe section 647(e) intrudes upon the fundamental right to be secure against unreasonable searches and seizures is that the Solomon court improperly applied the Terry balancing test. We agree that prevention of crime is "a weighty social objective." Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979). The right of an individual wanderer to be free from the governmental intrusion of being required to furnish identification, however, is also substantial. The Supreme Court has extolled the freedom of locomotion. Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a trap for innocent acts….
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup….
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving "Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right of locomotion, to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only their persons, but in their safe conduct. The constitution and the laws are framed for the public good, and the protection of all citizens from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Lawson v. Kolender, 658 F.2d 1362
Risbridger contends that the Supreme Court, beginning with Terry, has made clear that the Fourth Amendment prohibits police officers from compelling individuals to answer questions, including requests for identification, during the course of a valid investigative detention. The basis of Risbridger's assertion is the concurring opinion of Justice White in Terry, who wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. Risbridger v. Connelly, 275 F.3d 565
"This court is not aware of any decision by a federal court holding that a person may be subjected to criminal liability based solely upon his refusal to answer an officer’s questions or identify himself during a Terry stop…" Risbridger v. Connelly, 275 F.3d 565
Under California law, the elements of false imprisonment are (1) the nonconsensual, intentional confinement of a person. (2) without privilege, and (3) for an appreciable period of time, however brief. Blaxland, 323 F.3d 1198
Force or the threat of force are not only means by which tort of false imprisonment can be achieved; fraud or deceit or any unreasonable duress are alternative methods of accomplishing tort. Scofield, 45 Cal.App.4th 990, as modified on denial of rehearing, and review denied.
Essential thing in false imprisonment is the restraint of the person. Onick, 154 Cal.App.2d 381.
If the suspect’s actions were not prohibited under any statute, then a detention will be unlawful.
Strider (2009) 177 Cal.App. 4th 1393
Krohn (2007) 149 Cal. App. 4th 1294
In Lawson, the Ninth Circuit struck down a California vagrancy statute making it a misdemeanor for a person to refuse to identify himself and account for his presence when requested to do so by a police officer on the grounds that the statute violated the Fourth Amendment, was subject to arbitrary enforcement by police, and failed to give persons of ordinary intelligence fair and adequate notice of forbidden conduct. With respect to the Fourth Amendment, the Ninth Circuit stated that statutes penalizing a person's refusal to identify himself violate the Fourth Amendment because they "bootstrap the authority to arrest on less than probable cause, and the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest." Lawson, 658 F.2d at 1366-67. The United States Supreme Court affirmed the Ninth Circuit's decision on the basis that the statute was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment because of its failure to clarify the requirement of "credible and reliable" information. Kolender v. Lawson, 461 U.S. 352, 353-54, 103 S. Ct. 1855, 1856, 75 L. Ed. 2d 903 (1983).
Based upon the above-cited authorities, including the Ninth Circuit's decision in Kolender, this Court concludes that the Fourth Amendment precludes a police officer from compelling an individual subject to a Terry-type stop to disclose his identity and that a state may not subvert the probable cause requirement of the Fourth Amendment by penalizing an individual for his failure to do so.
Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person and the Fourth Amendment requires that the seizure be reasonable. U.S.C.A. Const.Amend. 4; Brignoni-Ponce, 95 S.Ct. 2574, 422 U.S. 873
Fourth Amendment does not proscribe all contact between the police and citizens, but it is designed to prevent arbitrary and oppressive interference by law enforcement officials with the privacy and personal security of individuals.
The 4th applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrests; accordingly, the 4th requires that such seizures be, at a minimum, reasonable.
4th’s prohibition of unreasonable searches and seizures of person, including brief investigatory stop of vehicle.
In order for investigative detention of defendant to be valid, investigative methods employed should be least intrusive means reasonably available to verify or dispel officer’s suspicion in short period of time. U.S.C.A. Const.Amend. 4
Encounter with police officers only triggers 4th am scrutiny when it loses its consensual nature. U.S.C.A. Const.Amend. 4; Lara, 163 F.Supp.2d 1107.
Police may stop and question person at any time, as long as that person knows that he or she is free to go at any time; these exchanges need not be supported by any suspicion that citizen is engaged in wrongdoing, and such stops are not considered seizures. U.S.C.A. Const.Amend. 4; Woo, 860 F.Supp. 1436
Detention occurs whenever police officers accost individual and restrains his freedom to walk away, or when officer stops an individual because he suspects that person may be personally involved in some criminal activity. West’s Ann.Cal.Const. Art. 1, § 13. Aldridge, 674 P.2d 240, 198 Cal.Rptr. 583, 35 Cal.3d 473.
As with all warrantless intrusions, burden lies with State to justify a detention. Bower, 597 P.2d 115, 156 Cal.Rptr. 856, 24 Cal.3d 638.
Detention based on mere curiosity, rumors, or hunch is unlawful regardless of officer’s good faith. U.S.C.A. Const.Amend. 4; Sawkow, 198 Cal.Rpte.374, 150 Cal.App.3d 999.
Investigative detention is unlawful if based on mere curiosity, rumor or hunch even if officer acts on good faith. Szabo, 165 Cal.Rptr. 719, 107 Cal.App.3d 419.
Validity of a temporary detention under law of California depends on whether peace officer had a rational suspicion that some activity out of the ordinary was taking or had taken place which, in some fashion, was connected with the subject under scrutiny and which, in some manner, suggested that activity was criminal. Walling, 486 F.2d 229
The duration of an investigatory detention cannot be unreasonably long. As the Supreme Court stated in Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983):
The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the office's suspicion in a short period of time.
If a detention does go beyond an investigative detention to constitute a de facto arrest, it must be based on probable cause. Royer, 460 U.S. at 498-99; Dunaway v. New York, 442 U.S. 200, 208-09, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979)
A detention may not be justified after the fact on a basis not relied on by officer, since such would countenance a detain-now-justify-later approach to police instructions which is contrary to constitutional requirements that protect a citizen against unreasonable searches and seizures. Bower, 597 P.2d 115. 156 Cal.Rptr. 856, 24 Cal.3d 638
Unless circumstances of encounter with police are so intimidating as to demonstrate that a reasonable person would have believed that he was not free to leave if he did not respond, questioning does not result in detention under the 4th; if the person refuses to answer and the police take additional steps to obtain an answer, the 4th imposes some minimal level of objective justification to validate the detention or seizure. U.S.C.A. Const.Amend.4; Delgado, 104 S.Ct. 1758, 466 U.S. 210
Under California law, to justify temporary detention by peace officer there must be a rational suspicion by the officer that some activity out of the ordinary is or has taken place, some indication to connect person under suspicion with the unusual activity, and some suggestion that the activity is related to crime. Mallides, 339 F.Supp. 1, reversed 473 F.2d 859.
An officer is under no duty to make an unlawful arrest. Curtis, 450 P.2d 33, 70 Cal.2d 347.
The validity of a particular temporary detention involves a determination of fact.
To justify a temporary detention of a person by a peace officer for investigation and questioning, there must be a rational suspicion by the peace officer that some activity out of the ordinary is or has taken place, there must be some indication to connect the person under suspicion with unusual activity, and there must be some suggestion that the activity is relates to crime. Superior Court, 106 Cal.Rptr.211, 30 Cal.App.3d 257.
While a detention of a citizen by police officer based on a “mere hunch” is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place and some suggestion that the activity is related to crime, a detention is permissible. U.S.C.A. Const.Amend.4; Gravatt, 99 Cal.Rptr.287, 22 Cal.App.3d 133.
Even if initial stop of vehicle by officer to see if break light was working was legally justified, officer’s right to detain driver ceased as soon as he discovered that brake light was operative, and officer had no right to detain driver further, to require him to “check out” headlights or to inspect car to find equipment violations to justify further detention, a record check and interrogation. Grace 108 Cal.Rptr. 66, 32 Cal.App.3d 447.
(if you have a right to refuse to searches and to answer questions…then one should not be threatened or intimidated from asserting that right or it negates the entire theory that it is consensual) “while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Id., at 227. Ohio v. Robinette, 519 U.S. 133 (1996).
Questions asked during investigative stop must relate to justification for the stop. (358) In U.s. v. Perez, 37 F.3d 510 (9th Cir. 1994) the court stated that “questions asked during an investigative stop must be ‘reasonably related in scope to the justification for their initiation.’ An officer may broaden his or her line of questioning if he or she notices additional suspicious factors, but he or she notices additional suspicious factors, but these factors must be ‘particularized’ and ‘objective.’” In the present case, after the initial stop and questioning, the officer became suspicious that the defendant was involved in narcotics activities based on a number of objective factors. The car did not belong to defendant and he could not name the registered owner. His story was inconsistent and there was an overpowering cherry smell coming from inside the car with no visible source. He also appeared nervous. Circuit Judges O’Scannlain and Leavy and District Judge Huff held that these factors justified additional questioning. Baron, 94 F.3d 1312 (9th Cir. 1996).
For an investigative stop or detention to be valid, you (the officer) must have “reasonable suspicion” that: (1) CRIMINAL ACTIVITY MAY BE AFOOT AND (2) THE PERSON YOU ARE ABOUT TO DETAIN IS CONNECTED WITH THAT POSSIBLE CRIMINAL ACTIVITY.
Wardlow (200) 528 U.S. 119;
Ornelas (1996) 517 U.S. 690, 695-696;
Sokolow (1989) 490 U.S. 1, 7-8;
Bennett (1998) 17 Cal. 4th 373, 386
White (1990) 496 U.S. 325, 330;
Johnson (1991) 231 Cal App. 3d 1, 11
Wardlow (2000) 528 U.S. 119, 123;
Arvizu (2002) 534 U.S. 226, 274;
“Reasonable Suspicion” is evaluated based on objective facts. Your (the officer's) subjective thinking, i.e., the purpose behind your search or seizure (detention or arrest), should have no bearing on a court’s determination of the legality of your action. Your “subjective intentions” are irrelevant in determining whether a detention or an arrest was justified.
Sullivan (2001) 532 U.S. 769, 772;
Whren (1996) 517 U.S. 806, 813;
Robinette (1996) 519 U.S. 33, 38
Scott (1978) 436 U.S. 128, 138;
Letner (2010) 50 Cal. 4th 99, 145;
If the suspect’s actions were not prohibited under any statute, then a detention will be unlawful.
Strider (2009) 177 Cal.App. 4th 1393
Krohn (2007) 149 Cal. App. 4th 1294
A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity.
Wardlow (2000) 528 U.S. 119, 123-124;
Tony C. (1978) 21 Cal.3d 888;
Raybourn (1990) 218 Cal.App.3d 308;
It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest; therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of crime. People v. Cuevas (1971, Cal App 5th Dist) 16 Cal App 3d 245, 93 Cal Rptr 916, 1971 Cal App LEXIS 1582.
A person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force; but if it should be determined that resistance was not thus justified, the felony provisions of Pen C § 243, apply when the arrest is lawful, and if the arrest is determined to be unlawful the defendant may be convicted only of a misdemeanor (construing Pen C §§ 834a and 243). People v. Curtis (1969) 70 Cal 2d 347, 74 Cal Rptr 713, 450 P2d 33, 1969 Cal LEXIS 338.
Job of a Police Officer: The Basic Rules of Policing
Here are the basic rules of policing:
Definitions:
Probable cause to search: probable cause to search a place or thing exists if there is a “fair probability” or “substantial chance” that the object of the search is now located there.
Probable cause to arrest: probable cause to arrest a suspect exists if there was a “fair probability” or “substantial chance” that he committed or is committing a crime.
Probable cause to seize evidence: probable cause to seize evidence exists when “the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime”.
Reasonable suspicion to detain: reasonable suspicion to detain a suspect exists if there is a “moderate chance” that he committed or is committing a crime.
What Information Will (and will not) be considered:
Objective circumstances: probable cause is based mainly on the objective circumstances known to the officers.
Circumstantial Evidence: probable cause may be based partly or entirely on circumstantial evidence.
Officers’ opinions and reasonable inferences: the courts will consider an officer’s opinion as to the meaning or significance of facts if, (1) the opinion was based on his training and experience, and (2) it appeared to be reasonable.
Expertise not required: an officer’s opinion may be considered even if he had not qualified as an expert witness in court.
Unsupported conclusions: unsupported opinions are irrelevant.
Officers’ state of mind: irrelevant.
“innocent” circumstances: probable cause may be based on “innocent” circumstances (i.e., circumstances that so not directly implicate the suspect in criminal activity) so long as the circumstances, when considered together, they were sufficiently suspicious.
Baseless “facts” and hunches: in sharp contrast to hard facts are vague or unsubstantiated tidbits of information, such as the following:
Unsupported conclusion of fact: irrelevant.
Conclusion of law: an officer’s legal opinions are irrelevant; e.g., “I have probable cause,” or “my informant is reliable.” These are legal determinations that are solely within the province of a judge.
Hunches: although hunches have a place in police work,, they are irrelevant in determining the existence of probable cause.
Facts inadmissible in court
Hearsay: may be considered, but the value of hearsay depends on whether there is reason to believe the information is accurate or that the source is reliable.
Privileged information: maybe considered.
Information obtained illegally: may not be considered if obtained in violation of a suspect’s constitutional rights; e.g., illegal search.
Uncommunicated information: as a general rule, information will not be considered in determining the existence of probable cause or reasonable suspicion unless it had been aware of information that was possessed by others.
Post-search/seizure pooling: a search, arrest, or detention without sufficient justification cannot be validated later by showing that it would have been justified if the officers had been aware of information that was possessed by others.
“collective knowledge” rule: although the courts do not permit post-arrest or post-search pooling of information to establish probable cause, they will ordinarily presume (in the absence of testimony to the contrary) that two or more officers pooled their information beforehand if they were generally communication as to developments in the case.
How the facts are analyzedIntroduction: in the past, many courts made their probable cause rulings by carefully analyzing each of the facts upon which the officers relied, and then subjecting each fact to a hypercritical analysis based on a “complex superstructure of evidentiary and analytical rules.” but in 1983, in the landmark case of Illinois v. Gates, the U.S. Supreme Cour rejected this type of analysis and replaced it with a “totality of circumstances”
Totality of the circumstances:
Under the “totality” standard, the courts base their rulings on an assessment of the overall force of all relevant circumstances. This means that judges must not isolate each face, belittle its importance or explain it away, and then conclude that probable cause did not exist because none of the facts were very incriminating.
Unreliable information: still, information is virtually useless unless there is reason to believe it is accurate.
Common sense: the court in Gates also ruled that, in determining whether probable cause existed, the various circumstances must be evaluated in light of common sense.
Combinations of circumstances: although probable cause may be based on a single incriminating circumstance, it is usually based on combinations of less powerful circumstances.
Utilizing probable theory: with each additional circumstance-with each “coincidence of information” the chances of having probable cause increase exponentially.
What Probability is required:
Introduction: it is often assumed that probable cause requires at least a 51% probability because anything less would not be “probable.” Although the U.S. Supreme Court has refused to assign a probability percentage (because it views probable cause as a non-technical standard based on common sense, not mathematical precision), it has said indicated that the following probabilities will suffice.
Probable cause: probable cause requires neither a preponderance of the evidence, nor “ any showing that such belief be correct or more likely true than false.” Thus, it requires something less than a 51% chance.
Possibility of innocence explanation: if probable cause exists, it is immaterial that there might have been an innocent explanation for the suspect’s conduct, or that the evidence being sought might not be located in the place that the officers searched.
Other indicators: the courts often note that probable cause requires less than a prima facie showing, but more than a good faith belief.
Reasonable suspicion: the required probability is “considerably less” than a preponderance of the evidence; i.e., considerably less than a 50% chance.
Offers’ uncertainty: if reasonable suspicion exists, it is immaterial that the officers has some doubt as to the suspect’s guilt.
Mistakes by officers
Mistake of fact: if probable cause was based in whole or in part on information that was subsequently determined to be untrue, the information may nevertheless be considered if officers reasonably believed it was true.
Mistakes of law
Mistake as to crime committed: if officers have probable cause to arrest the suspect for some crime, it is immaterial that they mistakenly arrest him for a crime that was not supported by probable cause.
Mistake that suspect was arrestable: if officers were wrong in their conclusion that probable cause to arrest existed, or that the suspect’s conduct constituted a crime, the arrest is unlawful.
Accusatory vs. Investigative questioning: investigative questioning is much less likely to result in a detention than accusatory questioning.
Investigative defined: Investigative questions imply that officers are merely exploring the possibility that the suspect might have committees a crime. While such questioning is “potentially incriminating,” is is also potentially exonerating.
Accusatory defined: Accusatory questions communicate to the suspect that the officers are fairly certain that he committed a crime, and that their objective is to obtain an admission. Accusing the suspect of having committed a crime is apt to result in a detention or arrest.
Ignoring a refusal: A de facto detention or arrest will result if officers persisted in questioning the suspect after he declined their request.
Grounds to Detain: grounds to detain exist in either if the following circumstances:
Reasonable suspicion: officers reasonably believed that the suspect was committing a crime, was about to commit on. Or had committed an unsolved crime.
Passenger in stopped car: the detainee was an occupant of a vehicle that was stopped on grounds that officers reasonably believed that another occupant was committing a crime, was about to commit one. Or had committed an unsolved crime.
De Facto Arrest: a detention becomes a de facto arrest if its scope or intrusiveness were, (1) beyond that which is associated with investigative detentions, and (2) unnecessary under the circumstances. (3) A de facto arrest is unlawful unless there was probable cause to arrest.
Consequences: a de facto arrest is illegal unless probable cause existed. No “least intrusive means” test: in the past, some courts ruled that a de facto arrest would result if officers failed to employ the least intrusive means of pursuing their investigation. The “least intrusive means” test has been abrogated. (I have to double check this statement. I have seen case laws ruled on by the Supreme Court that requires the "least intrusive means") Update: Here is case law that contradicts this statement: "In order for investigative detention of defendant to be valid, investigative methods employed should be least intrusive means reasonably available to verify or dispel officer’s suspicion in short period of time. U.S.C.A. Const.Amend. 4"
Duration: officers who have detained a suspect must carry out their duties diligently.
Time limit: although there is not maximum time limit, officers must promptly terminate the detention when they have completed their duties.
Arrest Procedure: there are certain technical requirements set by California statute with which officers should comply when they make an arrest.
They are as follows:
Notification: officers must “inform the person that he is under arrest. This can be accomplished directly of by any other words of conduct that would reasonably indicate to a reasonable person that he was under arrest.
Specific authority: officers must notify the suspect of their authority to make the arrest but because this simply means it must have been apparent to the suspect that he was being arrested by an officer, this requirements is satisfied if the officer was in uniform of displayed his badge.
Specify Crime:
Federal Law: Although giving notice is “good police practice,” it is not required.
California Law: officers must notify the suspect of the crime for which he is being arrested only if he asks.
Need for force:
Resisting arrest: in most cases, the need will be based solely on the suspect’s physical resistance to arrest but if the suspect was not resisting, there would be no need for any force, other than the de minimis variety.
Not resisting but not under control even though a suspect is not actively resisting, some degree of non-deadly force may be deemed reasonable if he was not yet under the control of the arresting officers. This is especially true if there was probable cause to arrest him for a violent felony.
Threats to officers: it is relevant that the suspect was known to be armed and dangerous, and the he threatened violent resistance to arrest
Threat to others: the need for force becomes much greater if the suspect’s resistance also constituted a serious and imminent threat to the safety officers or others; e.g., vehicle pursuit.
Proportionate response by officers: having established the existence of a need for force, the courts will next look to see whether the amount of force utilized was commensurate with that need; e.g. hard pulling, control hold, pepper spray, utilizing a properly-trained and controlled police dog.
Tasers: the electric shock caused by tasers is classified as non-deadly force, but not a de minimis force. This is because the affect of such a shock on a suspect is quite painful, that the affect is not always predictable, and that come people have died after being tased. As a result, some courts have classified tasers as “intermediate” force, which requires a demonstrably greater need than non-deadly force. Still, the use of a taser is often deemed a reasonable response when there is significant resistance, especially if officers had been unable to control the arrestee by other means.
No Probable Cause: if probable cause did not exist, any statements or evidence obtained as a result of the arrest may be suppressed if the taint from the unlawful delay had not been attenuated.
Specific testimony required: the courts will not place much significance on the “high crime area” circumstance unless officers can explain how they determine there was a serious crime problem in the area.
Arrest for 148: if grounds to detain exist, flight may provide probable cause to arrest for obstruction officers in the discharge of their duties.
Probable Cause to Search
Requirements: having probable cause to arrest a suspect does not automatically provide probable cause to search him, his vehicle, or home for evidence of the crime. Instead, it requires proof of the following:
(1) the evidence exists: there must be reason to believe the sought-after evidence exists.
(2) Location: there must be reason to believe that the evidence was taken to, or produced, at the location of the search.
(3) It’s still there: there must be proof that the evidence was not subsequently moved or used up.
The Evidence Exists: the existence of the evidence may be proven directly, circumstantially, or by reasonable inference. Direct evidence
Plain view: proof that evidence exists is often based on a plain view observation by an officer or other person.
Information from owner: the existence of stolen property may be established by the owner of the property; e.g., robbery or burglary victim provided a description for the property that was stolen.
Actual instrumentalities: the existence of evidence may be inferred from circumstances indicating that such evidence was used in the commission of the crime; e.g., because the murder weapon was a “medium caliber handgun,” the existence of such a weapon was reasonably inferred.
Burglar tools and stolen property: because officers found burglar tools in the suspect’s possession, they reasonably believed that a laden pillowcase he was carrying contained stolen property.
Reasonable inference based on training and experience: in the absence of direct or circumstantial evidence, the probable location of evidence may be established by reasonable inference; i.e., “the normal inferences as to where a criminal might likely hide incriminating evidence.”
Vehicle Searches
Probable cause searches:
Introduction: if officers have probable cause to believe there is contraband or other evidence inside a vehicle, they may search for it without a warrant. This is sometimes called the “automobile exception” to the warrant requirement.
No “necessity” requirement: if probable cause exists, it is immaterial that officers could have secured the vehicle and applied for a warrant; or that the search was not contemporaneous with the arrest of the driver.
Increased importance: because of the Supreme Court’s decision in 2009 to virtually eliminate vehicle searches incident to the arrest of an occupant (i.e., Belton searches), the automobile exception has become much more important. This is because many searches that would have been upheld in the past under Belton can be upheld under the automobile exception. Specifically, when officers have probable cause to arrest an occupant of a vehicle, they will often have probable cause to believe that the vehicle contains fruits and instrumentalities of the crime.
Get a warrant/ Although a warrant is not required when officers have probable cause, officers should consider applying for one if they are unsure whether probable cause exists and if they have time to do so.
When Permitted:
Requirements: there are three requirements:
(1) probable cause: officers must have probable cause to believe there is contraband or other evidence inside the vehicle; i.e., they must have been aware of facts that could have supported a warrant to search the vehicle. 864
(2) vehicle: as used here, the term “vehicle” is broadly defined to include cars, vans, motorcycles, boats, even bicycles.
(3) Vehicle in public place: officers must have been able to access the vehicle without violating the suspect’s reasonable expectation of privacy. Thus, a search would not be permitted if the vehicle was parked in the suspect’s garage or inside some other building in which he reasonably expected privacy. Driveway: a vehicle that is parked in the driveway of the suspect’s home, or in the carport of an apartment complex is in a public place.
What may be searched: officers may search any place or thing in which the sought-after evidence could reasonably be found. Although the scope is broad, there are a few twists.
Searching occupants: officers may not search the clothing of occupants unless they had probable cause to believe that the evidence was, in fact, located there. Limited Probable cause: If officers now that the evidence is located only in a certain area or container, they may search that area or open that container but they may not search elsewhere. For example, if officers are tracking a container of drugs, and if they see someone put the container in a vehicle, and search it. But they could not search anywhere else unless they had probable cause to do so.
Search for indicia: a search of other areas for indicia ought to be permitted if, as is usually the case, officers had probable cause to believe that indicia would tend to prove the identity of the person who controlled the vehicle.
search after impound: officers may conduct the search on the street or they may impound it and conduct the search later.
Invetory Searches:
Purpose of search : unlike investigatory vehicle searches whose objective is to find evidence of a crime, inventory searches are classified as “community caretaking” searches because their objectives are as follows:
Make a record: make a record of the property inside the vehicle so as to, (1) provide the owner with an accounting, and (2) protect officers and their departments from false claims that property in the vehicle was lost, stolen, or damaged.
Make safe: protect officers and others from harm if the vehicle contained a dangerous device or substance.
Summary of requirments: vehicle inventory searches are permitted if the following circumstances existed:
(1) towing reasonably necessary: towing the vehicle must have been reasonably necessary under the circumstances.
(2) Standard search procedures: the search must have been conducted in accordance with departmental policy or standard procedure.
Towing reasonably necessary: because an inventory search can be conducted only if officers have take legal custody of the vehicle (albeit temporarily), the first requirement is that is must have been reasonably necessary to tow or impound it this does not mean that towing must have been imperative or essential. It must simply be justifiable.Generally
No “least intrusive means”test: towing will not be deemed unreasonable merely because there was a less intrusive was to protecting the vehicle or its contents; e.g., locking the vehicle.
Standard procedure not required: some courts have said or implied that “reasonableness” is not the test-that towing is permitted whenever it was conducted in accordance with standard procedure. This is wrong.
Standard procedure not irrelevant: it is relevant that the officers were required or permitted to tow the vehicle under the circumstances because departmental policies are usually the result of a thoughtful consideration of the issues they address.
Officer discretion is permitted: a reasonable departmental policy does not become unreasonable merely because it gave officers some discretion in determining whether to tow under the circumstances.
Mixed motivations: if towing was reasonably necessary, it is immaterial that the officers’ decision to tow was based in part on their suspicion that the vehicle contained evidence.
Towing authorized by vehicle code: the vehicle code contains several sections that permit towing under circumstances that usually qualify as reasonably necessary.
Traffic hazard: the vehicle constituted a traffic hazard or obstruction.
Abandonment: the vehicle had been abandoned.
Driver incapitated: the driver was incapacitated by injuries or illness.
Driver arrested + reasonably necessary: while the vehicle code authorizes an impound when officers have arrested the driver or other person in control of the vehicle, 901 towing would be permitted only if it was reasonably necessary.
Legally parked, safe: towing would ordinarly be unreasonable if the vehicle was legally parked in a safe place and secured.
Passenger can take car: there was probably be no need to tow a vehicle if the arrestee wanted to turn over to a properly licensed and insured driver on the scene.
Standard procedure: towing would not be justified merely because it was “standard procedure”
Threat of theft or vandalism: thowing would ordinarily be reasonable if the vehicle was away from the arrestee’s home, especially if it was in a high-crime area where there existed a real threat of theft or vandalism, or the car was in an isolated area, or the car would not be secured.
Driver cited for 14601, 12500: the driver was given a notice to appear for a violation of Vehicle Code 14601 or 12500.
Passenger willing to drive: the question arises: may officers tow the registered vehicle if there is a licensed and insured passenger who is willing to drive it while the unlicensed driver rides in the passenger seat? See this endnote,
Expired registration: the Vehicle Code authorizes towing if, (1) the vehicle is on the street or public parking facility; and (2) the registration expired over six months earlier, or the registration sticker or license plate ws issued or antoher vehicle or ws forged. In such a case, the Vehicle Code states that the agency that towed the vehicle may not release it until the owner has provided proof of current registration and a valid driver’s license.
Protecting the vehicle and its contents: even if the Vehicel Code does not expressly authorize towing, officers may do so if towing was reasonably necessary to protect it or its contents from theft or damage.
Towing from private property: under some circimstances, it may be reasonably necessary to tow a vehicle from private property or a public parking lot.
Towing forfeited vehicle: a vehicle was subject to forfeiture.
Standard search procedures: the second requirement for condiction a vehicle inventory search is that the scope and intensity of the search must have been restricted by means of “standardized criteria or established routine.” Generally
Purpose of requirement: when a police department adopts a standardized policy governing the search of the contents of impounded vehicles, the owners and occupants of those vehicles are protected against the risk that officers will use selective discretion, searching only when they suspect criminal activity and then seeking to justify the searches as conducted for inventory purposes.”
“reasonableness” is not the issue: while officers must prove that towing was reasonably necessary, they need not justify the decision to search because, as noted above, the courts recoginize that there are several good reasons for searching every towed vehicle.
How to prove existence of policy: the most common way of proving that a search was conducted in accordance with standard procedures is to present a copy of the policy (if it was written) or present testimony from an officer that the department had implemented a policy-written or unwritten-on how inventory searches must be conducted.
Example of officers testimony
Written departmental policy
General policy requirments
General parameters are sufficient: a department’s written policy need not mandate the precise scope of the search or set forth exactly what officers may and may not search but it must limit the search to what is necessary “to produce an inventory.”
Partial list is sufficient: the policy need not require a listing of every object in the vehicle.
Thorough search: the policy may require a “through” search.
Officer discretion is permitted: the policy may permit officers to exercise discretion in determining what to search, but officers must exercise their discretion based on community caretaking objectives-not investigative needs.
No Damage: the policy may not authorize officers to damage or destroy parts of the car.
CHP form 180: in lieu of a written policy, many law enforcement agencies in California satisfy the “standardization” requirement by mandating that their officers complete a CHP 180 form which the California highway patrol provides to all officers in California, this form requires, among other things, that officers list all “property” in the vehicle, including radios, tape decks, firarms, tools, and ignition keys. It also requires a listing of all damage to the vehicle.
Unwritten departmental policy: in the absence of a written departmental policy, it may suffice that there existed an unwritten departmental policy or standard procedure for conducting inventory searches that sufficiently restricted the search.
Officer’s standard policy: in the absence of a departmental policy, it may be sufficient that the search was conducted in accordance with the officer’s standard procedure. (I have read case law that has contradicted this statement)
Protective Searches:
When permitted: a protective vehicle search (aka “ vehicle frisk”) may be conducted if the following circumstances existed:
(1) lawful detention: an accupant of the vehicle must have been lawful detained.
(2) “Weapon” inside: there must have been reasonable suspicion to believe that a weapon was inside the vehicle.
All of the infornation to this point was from California Criminal Investigation 2010 Edition. It is published by the District Attorney's office for Alameda County. This book is designed for police officers to help them get convictions. It is also good to know what police are legally bound to do...Probable Cause to Arrest (includes reasonable suspicion to detain)
Definitions
Probable cause to arrest: there are 2 definitions in current use, although there is not appreciable difference between the two.
Fair probability: probable cause to arrest exists if there was a “fair probability” or “substantial chance” that the suspect committed a crime (the trend is to apply this definition because it incorporates the more recent “fair probability” standard upon which probable cause to search is based.)
“honest and strong suspicion”: the older definition is that probable cause to arrest exists if the facts known to the arresting officer would have lead a person of ordinary care and prudence to believe and conscientiously entertain an “honest and strong suspicion” that the person had committed a crime.
Reasonable suspicion to detain: while probable cause exists if there is a “fair probability,” the lesser standard of reasonable suspicion exists if there is a “moderate chance.”
To detain people: reasonable suspicion to detain a person exists if officers were aware of facts that reasonably indicated he was committing a crime, had committed one, or was about to commit one. The courts also say that reasonable suspicion exists when the circumstances were merly consistent with criminal activity.
To detain property: reasonable suspicion to detain property (e.g. to secure it while seeking a warrant) exists if officers “possess specific and articulable facts warranting a reasonable belief” that the item is evidence of a crime.
More of the Basics:
Arrest “for investigation”: officers cannot arrest people “for investigation” of a crime or “on suspicion” in hopes that something might turn up. This is because probable cause requires a reasonable belief that a person actually committed a crime, not that he might have done so.
Suspect’s Location: The courts have consistently ruled that officers cannot detain or arrest a person merely because they saw him at or near a public place in which criminal activity is prevalent. Still, it is a relevant circumstance, often highly incriminating.
High Crime Area: A suspect’s presence in a “high crime area” will not justify a detention. It is , however, a relevant circumstance in light of other circumstances, especially if officers or witnesses saw him engaging in conduct that is associated with the type of criminal activity that is prevalent in the area.
Wednesday, November 9, 2011
How an officer can falsify 79 reports and continue to police you...
Brandon Mullock: How an officer can falsify 79 reports and continue to police you...
I will tell you how it happens:
I don’t understand how someone can be charged with a crime based on one person’s testimony. We must fight for our rights and not allow the system to feed off of our lives.
California DUI attorney Lawrence Taylor explained on a DUI blog "Drunk driving is one if those crimes which is highly susceptible to falsifying evidence…this is because the offense is highly dependent on the cop's own observations and opinion. Typically, proving 'driving under the influence of alcohol' depends upon the officer's testimony of such symptoms as weaving on the highway, odor of alcohol on the breath, flushed face, slurred speech, bloodshot eyes, poor balance, staggering when walking, etc. Usually, there are no other witnesses to contradict these 'observations'; certainly, no one will believe the accused... The motive? Fulfilling quotas overtime pay for testifying in court, promotions for high numbers of arrests, gaining awards in personnel files from MADD, etc." Well said Mr. Taylor…well said…
I will tell you how it happens:
(1) Internal Affairs refusal to investigate: I am assuming that some of these 79 people filed a citizen’s complain against the lying officer. As I stated in a prior post, Internal Affairs do not have to investigate. Also, some of the people who complained probably opted to take the “informal route” because the department vowed to correct this wayward cop. But that cop is generating revenue for the city, so they turn the blind eye and allow the people to be abused. You cannot wake someone who is feigning sleep. The city, district attorney, and police department knews exactly what was going on.
(2) The DA: “According to Scully's office, most of the defendants were convicted in a court of law despite Mullock's legally unsound decision to detain the motorists, despite his misuse of preliminary alcohol screening and despite wild inaccuracies in his field interviews.” The District Attorney’s office is not interested in the truth. They are conviction centered. This is how innocent people go to jail and are convicted of crimes. They have no trouble with arguing an immoral cause.
(3) The People: It is a case of the cop’s word against yours. We are also conditioned to believe that cops are moral and virtuous people when they are no different from other humans. You are missing work and are stressing due to all of the court days and other messes that comes with an illegal arrest. You are told that the evidence against you is pretty heavy and you give in and plead guilty. Your family, friends, lawyer told you to “let it go” it is not a big deal or a major crime, so you reluctantly take their advice.
(4) Your Attorney: Attorneys will try to scare you into taking a deal even if you proclaim your innocence. They will tell you about how unfair the system is and how you will probably not win if you demand to go to trial. You have no witnesses and we are lead to believe that no one will believe the accused. So you take the path of least resistance and don’t fight for you rights.
I don’t understand how someone can be charged with a crime based on one person’s testimony. We must fight for our rights and not allow the system to feed off of our lives.
California DUI attorney Lawrence Taylor explained on a DUI blog "Drunk driving is one if those crimes which is highly susceptible to falsifying evidence…this is because the offense is highly dependent on the cop's own observations and opinion. Typically, proving 'driving under the influence of alcohol' depends upon the officer's testimony of such symptoms as weaving on the highway, odor of alcohol on the breath, flushed face, slurred speech, bloodshot eyes, poor balance, staggering when walking, etc. Usually, there are no other witnesses to contradict these 'observations'; certainly, no one will believe the accused... The motive? Fulfilling quotas overtime pay for testifying in court, promotions for high numbers of arrests, gaining awards in personnel files from MADD, etc." Well said Mr. Taylor…well said…
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