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pfchell
01-31-2009, 07:30 AM
whats going on with supreme court regarding this surpressing evidence obtained by police misconduct or the other way around? im a bit confused with it. supreme court judge Stephen Breyer said its like a computer virus running loose in 4th amendment. please explain exactly what exclusionary rule mean in layman term. i know cops are not lawyers and many dont like lawyers but lately i ve seen some around here wannabe lawyering.we dont need that crap.

Ex Army MP
01-31-2009, 08:55 AM
whats going on with supreme court regarding this surpressing evidence obtained by police misconduct or the other way around? im a bit confused with it. supreme court judge Stephen Breyer said its like a computer virus running loose in 4th amendment. please explain exactly what exclusionary rule mean in layman term. i know cops are not lawyers and many dont like lawyers but lately i ve seen some around here wannabe lawyering.we dont need that crap.

It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.

The moral of the story. Conduct good searches and you won't have to worry about this.

Sincerely,

wannabee lawyer

PhilipCal
01-31-2009, 09:17 AM
It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.

The moral of the story. Conduct good searches and you won't have to worry about this.

Sincerely,

wannabee lawyer

That's about as good a reply as you'll ever get on this subject. I'm not even a "wannabe" laywer.

candidateyellow
01-31-2009, 10:25 AM
The courts have decided that the police need to follow certain rules in order to protect the rights of the citizens. However, we can't have people arguing with officers in the street over what is and isn't legal. Nor can we provide a judge to ride with every officer and double check everything. So the courts chose to create the "exclusionary rule". This rule states that any evidence, physical or otherwise, which is obtained by illegal means is not admissible in court. It is important to note that ONLY the evidence obtained through illegal means is suppressed at trail.

For example, let's say I were to do a legal search on a person and find drugs but then I questioned them illegally and gained a confession also. At the court hearing the confession would not be allowed to be brought up in court. It would be like it didn't even happen. The drugs, however, which I obtained legally would be presented at trial as evidence. That is how the court has set it up to ensure people follow the orders of the police AND have their rights protected.

That is the "exclusionary rule" in a nutshell. Of course there are many caveats and exceptions like "inevitable discovery" which was brought up earlier. But this is a simple web forum not a law class or police academy.

Ex Army MP
01-31-2009, 11:05 AM
The courts have decided that the police need to follow certain rules in order to protect the rights of the citizens. However, we can't have people arguing with officers in the street over what is and isn't legal. Nor can we provide a judge to ride with every officer and double check everything. So the courts chose to create the "exclusionary rule". This rule states that any evidence, physical or otherwise, which is obtained by illegal means is not admissible in court. It is important to note that ONLY the evidence obtained through illegal means is suppressed at trail.

For example, let's say I were to do a legal search on a person and find drugs but then I questioned them illegally and gained a confession also. At the court hearing the confession would not be allowed to be brought up in court. It would be like it didn't even happen. The drugs, however, which I obtained legally would be presented at trial as evidence. That is how the court has set it up to ensure people follow the orders of the police AND have their rights protected.

That is the "exclusionary rule" in a nutshell. Of course there are many caveats and exceptions like "inevitable discovery" which was brought up earlier. But this is a simple web forum not a law class or police academy.

Good call.

Another caveat. An illegal search that turns up contraband results in an arrest lacking probable cause. However, if a perp knew this and decided to resist that arrest, he can be found guilty of the resisting, even if the underlying evidence is excluded.

Yesterday I had a bail hearing where a guy tossed something over a fence( turned out to be MJ) and a cop saw him but couldn't tell exactly what it was. Cop says to the guy" stop, you're under arrest" and the guy runs and is later apprehended. The judge asked me what he was being arrested for and I responded that the cop believed he saw a baggie of some sort but that it really didn't matter in the long run, especially if I dismissed the NJ for a plea to the resisting. You simply cannot resist arrest.

Of course he agreed.

10-74 S8
01-31-2009, 11:48 AM
Good call.

Another caveat. An illegal search that turns up contraband results in an arrest lacking probable cause. However, if a perp knew this and decided to resist that arrest, he can be found guilty of the resisting, even if the underlying evidence is excluded.

Yesterday I had a bail hearing where a guy tossed something over a fence( turned out to be MJ) and a cop saw him but couldn't tell exactly what it was. Cop says to the guy" stop, you're under arrest" and the guy runs and is later apprehended. The judge asked me what he was being arrested for and I responded that the cop believed he saw a baggie of some sort but that it really didn't matter in the long run, especially if I dismissed the NJ for a plea to the resisting. You simply cannot resist arrest.

Of course he agreed.

There must be more to this story... I can't just point my finger at someone here and say their under arrest. I have to have a reason to arrest them. Maybe littering? You can't resist arrest, but it has to be a legal arrest.
Or did I miss something?

DAL
01-31-2009, 11:49 AM
Supreme Court Steps Closer to Repeal of Evidence Ruling

By ADAM LIPTAK
Published: January 30, 2009

WASHINGTON — In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.

On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule.

Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”

Ex Army MP
01-31-2009, 12:06 PM
There must be more to this story... I can't just point my finger at someone here and say their under arrest. I have to have a reason to arrest them. Maybe littering? You can't resist arrest, but it has to be a legal arrest.
Or did I miss something?

Actually, you don't have to have a reason to arrest for someone for them resist arrest. Of course the fact that an arrest lacked probable cause might influence a jury to vote not guilty on the resisting.

Anyway, I gave the short version. He threw something in a plastic baggie, consistant with packaging of CDS, over a fence, was told to stop and that he was under arrest. Did they know for a fact it was drugs? No, but did they have PC based on the toss of it? You could argue it either way but I could care less. I'd gladly drop the MJ to avoid arguing a suppression motion for him to plead to the resisting.

cgh6366
01-31-2009, 12:27 PM
It is important to note that ONLY the evidence obtained through illegal means is suppressed at trail.


You forgot, "and any other evidence obtained as a result of the supressed information." For example, I arrest dude and don't read Miranda, but I interrogate him. He tells me where to find the body of the person her murdered. The statements AND the body will be supressed, unless inevitable discovery exists.

The problem with the "fruit of the poisonous tree" is that it throws the baby out with the bathwater. It does not take into account unintentional, or non-malicious violations. Search and seizure law is about as dynamic an aspect of law as there is. It changes constantly, and if an officer makes a good faith mistake, it is still held against him.

In many other countries this is NOT the case, illegally obtained evidence can be used, and the officer can be held criminally liable for their illegal actions. Good faith errors are just that.

marcusindc
01-31-2009, 12:34 PM
I understand everything mentioned - but can someone give a good, dumbed down explanation of inevitable discovery? How can the courts say that we would have inevitably discovered something?

ComicGuy
01-31-2009, 01:18 PM
I understand everything mentioned - but can someone give a good, dumbed down explanation of inevitable discovery? How can the courts say that we would have inevitably discovered something?
If the aforementioned body was located in an abandoned warehouse, that was slated for demolition, and it was standard procedure for the demolition foreman to inspect such properties before they're destroyed, then logic would dictate that the foreman would have inevitably discovered the body, thereby making the body, and any evidence it contained, legal for admission in court.

candidateyellow
01-31-2009, 05:33 PM
You forgot, "and any other evidence obtained as a result of the supressed information."

Didn't forget, just didn't feel like going into it. We could talk about 4th amendment all day.

Brendon
01-31-2009, 05:35 PM
Couldn't it work the other way around too. Let's say an Officer conducted an illegal search and found drugs, but the guy ended up confessing to it legally. The confession could be used but the drugs couldn't?

RoadKingTrooper
01-31-2009, 05:57 PM
Who do you put on the witness stand? Not the defendant!
How do you charge the case?

Tex4720
01-31-2009, 06:15 PM
The problem with the "fruit of the poisonous tree" is that it throws the baby out with the bathwater. It does not take into account unintentional, or non-malicious violations. Search and seizure law is about as dynamic an aspect of law as there is. It changes constantly, and if an officer makes a good faith mistake, it is still held against him.

In many other countries this is NOT the case, illegally obtained evidence can be used, and the officer can be held criminally liable for their illegal actions. Good faith errors are just that.

Unintentional and non-malicious violations are still violations. Should a citizen loose their rights because an officer makes a mistake? No way, officers need to know the law and follow it. If they make mistakes, no big deal, you loose that case, learn, never make that mistake again and go on to be a better officer.

I'm no lib. but if officer's mistakes were over looked and citizens were not secure in their rights, would this still be America?

DAL
01-31-2009, 06:38 PM
Unintentional and non-malicious violations are still violations. Should a citizen loose their rights because an officer makes a mistake? No way, officers need to know the law and follow it. If they make mistakes, no big deal, you loose that case, learn, never make that mistake again and go on to be a better officer.

I'm no lib. but if officer's mistakes were over looked and citizens were not secure in their rights, would this still be America?

There is no constitutional right to have illegally-obtained evidence excluded.

Should the public be penalized for an officer's innocent mistake? Is the harm from an innocent search-and-seizure violation compare to the harm to the public in letting a major criminal go free?

Brendon
01-31-2009, 06:41 PM
There is no constitutional right to have illegally-obtained evidence excluded.

Should the public be penalized for an officer's innocent mistake? Is the harm from an innocent search-and-seizure violation compare to the harm to the public in letting a major criminal go free?

If it's illegal, it's not quite innocent. While most cops are very good people, not all of them are Angels.

Tex4720
01-31-2009, 06:47 PM
There is no constitutional right to have illegally-obtained evidence excluded.

Should the public be penalized for an officer's innocent mistake? Is the harm from an innocent search-and-seizure violation compare to the harm to the public in letting a major criminal go free?


The constitution states citizens do have rights against unreasonable search and seizure. The Supreme Court and States decide what they consider reasonable. Officers have to follow those decisions until new ones are made.

Of course when a bad guy gets away because of technicalities, it does hurt the society, but officers ignoring search and seizure rules when they want and claim 'mistake' would hurt society more in my eyes.

Ex Army MP
01-31-2009, 07:16 PM
Couldn't it work the other way around too. Let's say an Officer conducted an illegal search and found drugs, but the guy ended up confessing to it legally. The confession could be used but the drugs couldn't?

If the drugs are found before the confession then no.

Brendon
01-31-2009, 07:33 PM
If the drugs are found before the confession then no.

Well yeah, because if he confessed before they found the drugs, it wouldn't be an illegal search anymore because he admitted to a crime and all of that yeah.

BD0883
01-31-2009, 07:45 PM
whats going on with supreme court regarding this surpressing evidence obtained by police misconduct or the other way around? im a bit confused with it. supreme court judge Stephen Breyer said its like a computer virus running loose in 4th amendment. please explain exactly what exclusionary rule mean in layman term. i know cops are not lawyers and many dont like lawyers but lately i ve seen some around here wannabe lawyering.we dont need that crap.

What about the cops here that are lawyers? Surely they are not wannbes! ;)

DAL
01-31-2009, 08:15 PM
The constitution states citizens do have rights against unreasonable search and seizure. The Supreme Court and States decide what they consider reasonable. Officers have to follow those decisions until new ones are made.

Of course when a bad guy gets away because of technicalities, it does hurt the society, but officers ignoring search and seizure rules when they want and claim 'mistake' would hurt society more in my eyes.

How many officers do you think fully understand the law of search and seizure? If the law were clear, there would not be so many court decisions on search and seizure, and they all would be unanimous.

The Constitution does not specify a remedy if that right is violated. Congress has prescribed a remedy: a civil suit under 42 USC 1983. The exclusionary rule is a court-made remedy that is ineffective. It does not dissuade police from conducting illegal searches, because the police are no worse off than if they had not conducted the search at all.

DAL
01-31-2009, 08:18 PM
If it's illegal, it's not quite innocent. While most cops are very good people, not all of them are Angels.

Do you think police officers know the laws of search seizure? Even lawyers and courts disagree regularly.

In the case that generated this thread, the arresting officers did not make any mistake at all. A clerk had failed to update a record.

Tex4720
01-31-2009, 08:50 PM
How many officers do you think fully understand the law of search and seizure? If the law were clear, there would not be so many court decisions on search and seizure, and they all would be unanimous.

The Constitution does not specify a remedy if that right is violated. Congress has prescribed a remedy: a civil suit under 42 USC 1983. The exclusionary rule is a court-made remedy that is ineffective. It does not dissuade police from conducting illegal searches, because the police are no worse off than if they had not conducted the search at all.

No I don't think officers fully understand, but I think they should. Yes, rookies have a learning curve, and veterans cannot know it all, but the major stuff is our responsibility to know. If officers shouldn’t be held to these rules who should? And the penalty will be losing the case.

When the Supreme Court makes a change then officers need to learn the change. This includes searches w/ consent, PC, incident to arrest, inventory, warrant etc..

Just like knowing the penal code officers need to know the rules. So do clerks etc,,,

mdrdep
01-31-2009, 10:27 PM
How can you expect cops to fully understand search and seizure when the courts can't even agree. They should have a good working knowledge though.

Besides since the legislature has provided a remedy (lawsuits) why should the courts continue to sanction it independently and allow scums to reenter society to cause further harm.

Tex4720
01-31-2009, 11:23 PM
How can you expect cops to fully understand search and seizure when the courts can't even agree. They should have a good working knowledge though.

Besides since the legislature has provided a remedy (lawsuits) why should the courts continue to sanction it independently and allow scums to reenter society to cause further harm.

No one here said officers should or even could understand every aspect,,but they should know the basics like when they can search a suspect, a car, a house, a locked suitcase,,etc,,,who can give consent, who cannot,,,

And do you really believe it should be 'tough **** mr citizen',we did violate your rights but when you get out of jail feel free to sue,,,does that really seem right to you?

cgh6366
01-31-2009, 11:29 PM
Unintentional and non-malicious violations are still violations. Should a citizen loose their rights because an officer makes a mistake? No way, officers need to know the law and follow it. If they make mistakes, no big deal, you loose that case, learn, never make that mistake again and go on to be a better officer.

I'm no lib. but if officer's mistakes were over looked and citizens were not secure in their rights, would this still be America?

Violations of what? The exclusionary rule was created by the bench, it is not constitutional. And as far as officers need to know the law, sorry - No. More so that any other area, search and seizure law changes all the time and has so many possibilities. The accused is losing no rights at all.

Tex4720
02-01-2009, 12:03 AM
Are we even talking about the same subject? I do believe officers need to know search and seizure rules/laws because they use them every day. Do you believe that officers who pull over a citizen for a legitimate traffic violation should not know when they can legally search the trunk for narcotics/evidence or should they just search them all and let citizens get arrested then fight it in court to prove the search was illegal?

Yes the exclusionary rule was created by the courts to make officers play by the rules. I don't agree with all the decisions made by the courts, and yes they make our job harder but I try and abide by them so when I make an arrest it sticks. And not all the decisons made by the courts hurt officers, some support their possition and the arrests/searches made by them.

Brendon
02-01-2009, 12:11 AM
Yes the exclusionary rule was created by the courts to make officers play by the rules. I don't agree with all the decisions made by the courts, and yes they make our job harder but I try and abide by them so when I make an arrest it sticks. And not all the decisons made by the courts hurt officers, some support their possition and the arrests/searches made by them.

Nice to see some people still think this way.

DAL
02-01-2009, 01:10 AM
I am not concerned that the exclusionary rule makes the job of police officers harder. I am concerned that it makes the public less safe.

I think that the exclusionary rule has a place in egregious circumstances, but I do not think that it serves a purpose when the legality of the police conduct is debatable.

One pernicious effect of the exclusionary rule is that litigating over the legality of police conduct now takes up a lot of the resources in the criminal justice system.

DAL
02-01-2009, 01:10 AM
Nice to see some people still think this way.

I can see why you checked the "victim" box.

GGG
02-01-2009, 05:58 AM
Actually, you don't have to have a reason to arrest for someone for them resist arrest. Of course the fact that an arrest lacked probable cause might influence a jury to vote not guilty on the resisting.



If you don't have PC to arrest, then it is an illegal arrest. An illegal arrest can legally be resisted since it is otherwise called abduction.

From SCOTUS:

If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.

That was written over 100yrs ago, but has recently been re-affirmed in cases where a no knock warrant was served on the wrong house and the homeowner shot and killed an entry officer.

On The
02-01-2009, 08:08 AM
I don't know about federal courts, but some, if not many states have decided that it is NOT legal to resist an unlawful arrest and that the proper place to address the issue is in court. When I was in the academy, we were taught that it was legal to use force up to and including deadly force to resist an unlawful arrest. That has since changed.

As far as the exclusionary rule, I think the proper action to take is to adminstratively discipline the officer who conducts unlawful searches or even prosecute him if he had criminal intent, but NOT to exclude evidence against a criminal.

pfchell
02-01-2009, 08:23 AM
It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.

The moral of the story. Conduct good searches and you won't have to worry about this.

Sincerely,

wannabee lawyer

thanks for the simple response and to the point. i alway appreicate an honest cop. being dishonest on intent usually will bite you back down the road. i can see that you being honest made alot of people happy. thanks again

Ex Army MP
02-01-2009, 09:32 AM
thanks for the simple response and to the point. i alway appreicate an honest cop. being dishonest on intent usually will bite you back down the road. i can see that you being honest made alot of people happy. thanks again

Prosecutor, Con Law professor and former Army cop and investigator, not a current cop.

I get to do the Monday morning quarterbacking.

Ex Army MP
02-01-2009, 09:49 AM
If you don't have PC to arrest, then it is an illegal arrest. An illegal arrest can legally be resisted since it is otherwise called abduction.



That's simply incorrect. Non PC arrests are not per se illegal arrests first of all. Many times the courts will hold an arrest to be without PC, i.e. perhaps it didn't meet the totality of the circumstances or was premature. Illegal would be like arresting someone for eating an apple at high noon while riding a big wheel when such an act clearly isn't against the law.

In any event, there is simply no distinction. I don't know where you got that SCOTUS language from but I go by NJ Case law which must, at a minimum, be in compliance with SCOTUS. It is in both our 2C Code and Case law:

It is no defense to a resisting arrest prosecution that the “law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.” N.J.S.A. 2C:29-2a. State v. Seymour 289 N.J.Super. 80(1996).

dh91040
02-01-2009, 11:08 AM
In the case that generated this thread, the arresting officers did not make any mistake at all. A clerk had failed to update a record.

Here is a link to the USSC opinion (http://www.supremecourtus.gov/opinions/08pdf/07-513.pdf) for anyone who hasn't seen it yet and wants to read it.


I think that the exclusionary rule has a place in egregious circumstances, but I do not think that it serves a purpose when the legality of the police conduct is debatable.

I think you're 100 percent correct. IMHO common-sense would dictate excluding evidence obtained as a result of obvious, deliberate misconduct, but the system errs now on the wrong side of caution.

cgh6366
02-01-2009, 02:37 PM
Are we even talking about the same subject? I do believe officers need to know search and seizure rules/laws because they use them every day. Do you believe that officers who pull over a citizen for a legitimate traffic violation should not know when they can legally search the trunk for narcotics/evidence or should they just search them all and let citizens get arrested then fight it in court to prove the search was illegal?

Yes the exclusionary rule was created by the courts to make officers play by the rules. I don't agree with all the decisions made by the courts, and yes they make our job harder but I try and abide by them so when I make an arrest it sticks. And not all the decisons made by the courts hurt officers, some support their possition and the arrests/searches made by them.

I think we basically agree, but it seems instead of a good guideline, the law has been decided for minimally different changes in a situation, sometimes conflicting. Like you can search the trunk if it can be access from inside the car. Well a trunk rlease is inside the car. Or what if there is the rear armrest that has a small gap to reach to a trunk area? Or I get int he trunk and find a zipped duffle bag, inside the duffle bag is a bag zipped closed with a zip tie on it, that has a cloth bag with a lock, but the key is in the glove box, inside that is another cloth bag with a lock, but no key - but the cloth can be easily cut with minimal damage, inside that is a sealed ceramic case that would have to be destroyed to see what's inside.

OK, I admit this is ridiculous to the extreme, but under existing SCOTUS decisions as of 2/1/09 at 1135 PDT how far can I legally go without a warrant.

I think we would all agree that openeing the next bag/case is not a major intrusion - but one might be illegal and another not. Those types of inadvertant violations and innocent mistakes should not be penalized.

Tex4720
02-01-2009, 05:37 PM
I think we basically agree, but it seems instead of a good guideline, the law has been decided for minimally different changes in a situation, sometimes conflicting. Like you can search the trunk if it can be access from inside the car. Well a trunk rlease is inside the car. Or what if there is the rear armrest that has a small gap to reach to a trunk area? Or I get int he trunk and find a zipped duffle bag, inside the duffle bag is a bag zipped closed with a zip tie on it, that has a cloth bag with a lock, but the key is in the glove box, inside that is another cloth bag with a lock, but no key - but the cloth can be easily cut with minimal damage, inside that is a sealed ceramic case that would have to be destroyed to see what's inside.

OK, I admit this is ridiculous to the extreme, but under existing SCOTUS decisions as of 2/1/09 at 1135 PDT how far can I legally go without a warrant.

I think we would all agree that openeing the next bag/case is not a major intrusion - but one might be illegal and another not. Those types of inadvertant violations and innocent mistakes should not be penalized.

Depends on the situation.

Search incident to arrest: You get the whole inside passenger part of the car. That includes glove box and trunk if accessible from back seat. The thought behind that is the arrestee could have hidden his gun drugs etc in those places easily because he could reach them. A trunk that is not accessible from the inside is off limits because it is obvious the arrestee did not get out of the car and put something in it and then got back into the car before the traffic stop. If the glove box is locked and there is no key then you cannot search it because the suspect could not have gotten in their either.

With PC,,,you already found crack in the center console or you smelled dope when you stopped them is different. With PC you can search anywhere where the dope could be hidden. Even locked suitcases in the trunk. From bumber to bumper.

We do not have to get a warrant for a car. If you could get a warrant for a car you don’t need to get it. So act as if you have a search warrant when you have probable cause and search like you would w/ a warrant for a house.

Inventory search: If arresting on new traffic and towing the car you inventory for valuables because we are responsible for the arrestee’s articles. You can search interior, glove box and trunk. You cannot search locked items such as suitcases etc because they are considered secure. You can ask arrestee if he has any valuables in these places so it can be secured for them.

Consent search: you can search anything they allow you to search. They can say you can search whatever you want but not the trunk. You cannot search the trunk.


Yes the courts do lean towards the accused in their decisions because it is true, one is considered innocent until proven guilty in America.

Brendon
02-01-2009, 06:23 PM
I can see why you checked the "victim" box.

Because I'm 17 and can't legally own a gun. Did you see that?

pujolsfan146
02-01-2009, 08:10 PM
It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.

The moral of the story. Conduct good searches and you won't have to worry about this.

Sincerely,

wannabee lawyer

Very good explanation. Not bad for a wannabee lawyer!:)

GGG
02-01-2009, 11:21 PM
In any event, there is simply no distinction. I don't know where you got that SCOTUS language from but I go by NJ Case law which must, at a minimum, be in compliance with SCOTUS. It is in both our 2C Code and Case law:

It is no defense to a resisting arrest prosecution that the “law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.” N.J.S.A. 2C:29-2a. State v. Seymour 289 N.J.Super. 80(1996).

Silly me, I thought SCOTUS overruled NJ.

“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

On The
02-02-2009, 04:41 AM
Originally Posted by Ex Army MP
It's simple. Any evidence that a police officer seizes as a result of an illegal search is considered " fruits of the poisonous tree" and must be suppressed at trial. However, sometimes the evidence can come in under the inevitable discovery or independent source rule.


What if the person against whom the unconstitutionally-seized evidence is to be used had no reasonable expectation of privacy in the place from which the evidence was seized?

Smurfette_76
02-02-2009, 07:01 AM
Then why would it be unconstitutional? Plain view doctrine.

Tex,

Happy Birthday, btw...No one here has suggested officers shouldn't understand search and seizure issues, but if they were clear cut we wouldn't be making case law so frequently. SCOTUS can't agree, there's no way we're going to get it right every time. Officers need a working knowledge and excellent articulation.

Ex Army MP
02-02-2009, 04:30 PM
Silly me, I thought SCOTUS overruled NJ.

True, when it comes to constitutional matters. In any event, the issue of whether you could resist an unlawful arrest technically is not a constitutional issue under the U.S. Constitution. The suppression issue most certainly is because that's a fourth amendment issue. But the amount of force one could use against an officer is exclusively a state court issue. You do realize that SCOTUS has no jurisdiction over what laws a state can pass so long as the law doesn't violate a provision of the U.S. Constitution, right? What provison of the U.S. Constitution is violated by NJ having a law that says you can't resist arrest?

Perhaps other states allow folks to resist arrest. I wouldn't know because I am not familiar with the criminal code from any other state.

GGG
02-02-2009, 05:24 PM
True, when it comes to constitutional matters. In any event, the issue of whether you could resist an unlawful arrest technically is not a constitutional issue under the U.S. Constitution.

So why did SCOTUS hear the case? Isn't an LEO making an illegal arrest, thereby violating a persons 4th Amendment rights, a Constitutional issue? That was the case SCOTUS heard that I cited. LEO's were sent to round up John Bad Elk without a warrant for a misdemeanor not committed in their presence. He said he horse was spent, and he would ride in in the morning. One of them did not like that and drew first, John Bad Elk drew fastest. SCOTUS said since they never had cause for the arrest, John Bad Elk was simply defending himself from assault.

I realize SCOTUS does not make state law, but when they rule on an issue, they are ruling on the constitutionality of that issue. So it seems to me that they made a ruling, and your state law is in violation of it, thereby unconstitutional.

DAL
02-02-2009, 06:13 PM
This is really off topic, but I do not want to encourage people to kill police officers when they believe they are being wrongly arrested.


I realize SCOTUS does not make state law, but when they rule on an issue, they are ruling on the constitutionality of that issue. So it seems to me that they made a ruling, and your state law is in violation of it, thereby unconstitutional.

Not so. You need to read cases carefully, and understand fundamental principles of constitutional jurisprudence.

The Supreme Court only addresses constitutionality when that is an issue that is presented for review. In the Bad Elk case, the Supreme Court was interpreting federal common law and South Dakota law. It had no reason to consider whether a state law that conflicted with the common law would be constitutional.

Furthermore, the Supreme Court did not hold that Bad Elk was entitled to use deadly force to resist. Rather, it held that the unlawfulness of the arrest negated the malice that is essential to a conviction for murder.

John Bad Elk v. United States, 177 U.S. 529 (1900)

John Bad Elk v. United States

No. 350

Submitted February 26, 1900

Decided April 30, 1900

177 U.S. 529

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF SOUTH DAKOTA

Syllabus

Three policemen in South Dakota attempted, under verbal orders, to arrest another policeman for an alleged violation of law when no charge had been formally made against him and no warrant had issued for his arrest. Those attempting to make the arrest carried arms, and when he refused to go, they tried to oblige him to do so by force. He fired and killed one of them. He was arrested, tried for murder, and convicted. The court charged the jury:

"The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. It is claimed on the part of the defendant that he made no resistance, and he was willing to go with the officer in the morning. I charge you, of course, that the officer, John Kills Back, had a right to determine for himself when this man should go to the agency with him. . . . In this connection I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant, he would have had the right to show his revolver. He would have had the right to use only so much force as was necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgot his duties as an officer and had gone beyond the force necessary to arrest the defendant, and was about to kill him or to inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest."

Held, that the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter.

The case is stated in the opinion.

MR. JUSTICE PECKHAM delivered the opinion of the Court.

The plaintiff in error was convicted in April, 1899, in the Circuit Court of the United States in South Dakota, of the murder on March 13, 1899, of John Kills Back at the Pine Ridge Indian reservation, in South Dakota, and sentenced to be hanged. The case is brought here on writ of error to the circuit court.

Both the deceased and the plaintiff in error were Indians and policemen residing on the reservation at the time of the killing.

Upon the trial, it appeared that the plaintiff in error, on March 8, 1899, while out of doors, fired a couple of shots from his gun at or near the place where he resided. Soon after the firing, one Captain Gleason, who stated that he was what is called an "additional farmer" on the same reservation, having heard the shots, and meeting the plaintiff in error, asked him if he had done that shooting, and he said that he had; that "he had shot into the air for fun," to which Gleason responded by saying to him, "Come around to the office in a little while, and we will talk the matter over." Thereupon they separated. As he did not come to the office, Gleason, after waiting several days, gave verbal orders to three of the Indian policemen to go and arrest plaintiff in error at his mother's house near by and take him to the agency, some twenty-five miles distant. No reason for making the arrest was given, nor any charge made against him. The policemen, one of whom was the deceased, went to the house where the plaintiff in error was stopping, and came back and reported to Gleason that he was not there, and they were then ordered to return and wait for him and to arrest him. They returned to the house, but came back again and reported that the plaintiff in error said that he would go with them to the agency in the morning; that it was too late to go with them that night. Gleason then told them to watch him and see that he did not go away, and in the morning to take him to the Pine Ridge agency.

The policemen then again went back to the house where plaintiff in error was staying and met him coming towards his mother's place. He went into the house, and one of their number followed him; found him smoking, and told him that they had come to take him to the agency at Pine Ridge. Plaintiff in error refused to go, and the policeman went outside. Another of them then went into the house, and in a few minutes, both he and the plaintiff in error came out, and the latter saddled his horse and went over to the house of a friend, and they followed him. It was getting dark when he came back to his mother's house, still followed by them, and while following the plaintiff in error to his house on this last occasion, they were joined by others, so that, when he went into the house, there were four or five men standing about it. In a short time, the plaintiff in error came out and asked of those outside, "What are you here bothering me for?" The deceased said: "Cousin, you are a policeman, and know what the rules and orders are." To which plaintiff in error replied: "Yes; I know what the rules and orders are, but I told you I would go with you to Pine Ridge in the morning." Then, according to the evidence for the prosecution, the plaintiff in error, without further provocation, shot the deceased, who died within a few minutes.

The policemen had their arms with them when they went up to where the plaintiff in error was at the time the shooting was done.

This is substantially the case made by the prosecution.

There is an entire absence of any evidence of a complaint's having been made before any magistrate or officer charging an offense against the plaintiff in error, and there is no proof that he had been guilty of any criminal offense, or that he had even violated any rule or regulation for the government of the Indians on the reservation, or that any warrant had been issued for his arrest. On the contrary, Gleason swears that his orders to arrest plaintiff in error were not in writing, but given orally. Indeed, it does not appear that Gleason had any authority even to entertain a complaint or to issue a warrant in any event.

The plaintiff in error testified in his own behalf, and said that during the day he had been looking after the schools along the creek near the station; that that was his duty as a policeman; that he arrived at his mother's house about half past four in the afternoon, and soon afterwards an Indian named High Eagle came into the house, staid a minute or two, but did not speak, then went outdoors, and Lone Bear came in, and said that he was directed to take the plaintiff in error to Pine Ridge to Major Clapp. To which the plaintiff replied: "All right, but my horse is used up, and I shall have to go to my brother's, Harrison White Thunder's, and get another horse." Lone Bear said all right. Then the plaintiff in error started for his brother's, and when he got there, found that the horses were out on the range, and when they came in, his brother promised to bring one of them down to him. In this he was corroborated by his brother, who testified that he brought the horse over about dark. On his way back to his mother's, the plaintiff in error stopped at a friend's and got a Winchester rifle for the purpose, as he said, of shooting prairie chickens. When he went back to his mother's, he was there but a short time when the deceased and two or three others came to his house to arrest him, and the plaintiff in error went out, and according to his testimony the following was what occurred:

"I asked John Kills Back and High Eagle what they were there bothering me all the while for. John Kills Back said: 'You are a policeman, and know what the rules are.' I said: 'Yes, I know what the rules are, but I told you that I would go to Pine Ridge agency in the morning.' Then the deceased moved a little forward, and put his hand around as if to reach for his gun. I saw the gun and shot; then I shot twice more, and John Kills Back and High Eagle ran off. John Kills Back fell after he had gone a short distance. I shot because I knew that they (John Kills Back and High Eagle) would shoot me. I saw their revolvers at the time I shot."

This was in substance all the evidence.

Counsel for plaintiff in error asked the court to charge as follows:

"From the evidence as it appears in this action, none of the policemen who sought to arrest the defendant in this action prior to the killing of the deceased, John Kills Back, were justified in arresting the defendant, and he had a right to use such force as a reasonably prudent person might do in resisting such arrest by them."

The court denied the request, and counsel excepted.

The court charged the jury, among other things, as follows:

"The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. It is claimed on the part of the defendant that he made no resistance, and he was willing to go with the officer in the morning. I charge you, of course, that the officer, John Kills Back, had a right to determine for himself when this man should go to the agency with him."

"* * * *"

"In this connection, I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant, he would have had the right to show his revolver. He would have had the right to use only so much force as was necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgotten his duties as an officer, and had gone beyond the force necessary to arrest defendant, and was about to kill him or to inflict great bodily injury upon him which was not necessary for the purpose of making the arrest."

This charge was duly excepted to.

We think the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

The evidence as to the facts immediately preceding the killing was contradictory, the prosecution showing a killing when no active effort was at that very moment made to arrest and the defendant showing an intended arrest and a determination to take him at that time at all events, and a move made by the deceased towards him with his pistol in sight, and a seeming intention to use it against the defendant for the purpose of overcoming all resistance. Under these circumstances, the error of the charge was material and prejudicial.

At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer at common law was not authorized to make an arrest without a warrant for a mere misdemeanor not committed in his presence. 1 Arch.Crim. Pr. & Pl. 7th Am. ed. 103, note(1); also page 861 and following pages; 2 Hawk.P.C. 129, sec. 8; 3 Russell on Crimes, 6th ed. 83, 84, 97; 1 Chitty's Crim.L. star page 15; 1 East P.C. c. 5, p. 328; Derecourt v. Corbishley, 5 E. & B. 188; Fox v. Gaunt, 3 B. & Ad. 798; Reg. v. Chapman, 12 Cox Crim.Cas. 4; Rafferty v. People, 69 Ill. 111; S.C. on a subsequent writ, 72 Ill. 37. If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest. 1 East, supra.

We do not find any statute of the United States or of the State of South Dakota giving any right to these men to arrest an individual without a warrant on a charge of misdemeanor not committed in their presence. Marshals and their deputies have in each state, by virtue of § 788, Revised Statutes of the United States, the same powers in executing the laws of the United States as sheriffs and their deputies in such state may have by law in executing the laws thereof. This certainly does not give any power to an officer at the Pine Ridge agency to arrest a person without warrant, even though charged with the commission of a misdemeanor. These policemen were not marshals nor deputies of marshals, and the statutes have no application to them.

By section 1014 of the Revised Statutes, the officers of the United States named therein and certain state officers may, agreeably to the usual mode of process against offenders in such state, order the arrest of an offender for any crime or offense committed against the United States. This section has no application.

Referring to the laws of South Dakota, we find no authority for making such an arrest without warrant. The law upon the subject of arrests in that state is contained in the Compiled Laws of South Dakota 1887, section 7139 and the following sections, and it will be seen that the common law is therein substantially enacted. The sections referred to are set out in the margin. *

No rule or regulation for the government of Indians upon a reservation has been cited, nor have we found any, which prohibits the firing of a gun there "for fun," nor do we find any law, rule, or regulation which authorizes an arrest, without warrant, of an Indian not charged even with the commission of a misdemeanor, nor does it anywhere appear that Gleason had authority to issue a warrant for an alleged violation of the rules or regulations.

It is plain from this review of the subject that the charge of the court below that the policemen had the right to arrest this plaintiff in error without warrant and that, in order to accomplish such arrest, they had the right to show and use their pistols so far as was necessary for that purpose, and that the plaintiff in error had no right to resist such arrest, was erroneous. That it was a material error, it seems to us, is equally plain. It placed the transaction in a false light before the jury, and denied to the plaintiff in error those rights which he clearly had. The occasion of the trouble originated in Gleason's orders to arrest him and in the announced intention on the part of the policemen, which they endeavored to accomplish, to arrest the plaintiff in error that night and take him to the agency, and all that followed that announcement ought to be viewed in the light of such proclaimed intention. And yet the charge presented the plaintiff in error to the jury as one having no right to make any resistance to an arrest by these officers, although he had been guilty of no offense, and it gave the jury to understand that the officers, in making the attempt, had the right to use all necessary force to overcome any and all opposition that might be made to the arrest, even to the extent of killing the individual whom they desired to take into their custody. Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist an attempted illegal arrest, the jury were informed that the policemen had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first
case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.

The plaintiff in error was undoubtedly prejudiced by this error in the charge, and the judgment of the court below must therefore be

Reversed, and the case remanded with instructions to grant a new trial.

* [statutes omitted for lack of space]

Tex4720
02-02-2009, 06:37 PM
Tex,

Happy Birthday, btw...No one here has suggested officers shouldn't understand search and seizure issues, but if they were clear cut we wouldn't be making case law so frequently. SCOTUS can't agree, there's no way we're going to get it right every time.

Thanks, and you right, no one can be right every time, I just think we should attempt to get get close by keeping up with the changes,,,I'm lucky because my department and friends keep me up to date,,they take an interest in it and I get to take advantage of their knowledge,,I am also lucky to be in Texas because our state laws tend to shadow supreme court decisions.

On The
02-02-2009, 08:57 PM
Then why would it be unconstitutional? Plain view doctrine.

Suppose the police pull me over just because I'm Scandinavian-American, search my car with no RS and find my gun under the seat. Seize it and use it against my brother, who stole it and used it in a homicide. That would be an unlawful search, wouldn't it? But the gun would still be admissible, wouldn't it?

Tex4720
02-02-2009, 09:31 PM
I think it could be used against him because your brother did not have the expectation of privacy in your car and does not have standing to file the illegal search motion.

mdrdep
02-03-2009, 01:28 AM
+1 to Tex, the brother would not have standing to contest the search.

As to Tex's earlier rebuttal to my post; Yes we do need to know search and seizure to the best of our ability. Unfortunatley there will always be those cases where it's not cut and dry because it's always in flux. I think the best way to handle the situation would be to admit the evidence except where it apeared there was an integrity issue with the police seizure. If it was good evidence but seized in a questionable manner the evidence should be admitted but the officer would expose himself and his dept. to liability.

Lawless One
02-03-2009, 10:11 AM
This is why I like Canadian law much better than American. Things seem to be a bit more simple. We have the exclusionary rule in that evidence obtained through unlawful means cannot be used in a court of law. However a secondary law states that a judge may deem the evidence obtained as admissible in court of it's exclusion would constitute a "miscarriage of justice".

For example, if a cop roughs up a rapist during arrest and obtains evidence that would put him behind bars for life after the excessive use of force, the evidence obtained cannot be used against the defendant in a Canadian court of law. If the judge, however, considers the evidence as proof beyond a reasonable doubt of the defendants guilt he may deem the evidence necessary in order to prevent the recidivism of a violent sex offender.

Also I've never quite understood the American weapon laws. In Canada a weapon is defined as, "Anything that the individual forms the intent to use as a weapon."