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Old 09-11-2017, 01:38 PM #81

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Originally Posted by Jhhnn View Post
I'm sure you won't let facts interfere with the formulation of your opinions, such as they are. Until you do, you won't get much respect from anybody who values the truth.

So I ask you, point blank, why you would defend Arpaio & Trump for any reason other than agreeing with Arpaio's methods of cleansing America of the "scourge of illegal immigration" as Trump does here-

I'll bet you didn't even notice what was really said here-

"Throughout his time as Sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime (executing the War on Drugs) and illegal immigration (aggressive racial profiling, hassling & arresting brown people just trying to get by).

Trump knows what he's doing & the sentiments to which he panders. Make no mistake about that.
First, no where in this thread have I disclosed my "opinions" regarding Sheriff Joe. I don't see how my opinion of Sheriff Joe and his past has anything to do about discussing the fairness of Presidential Pardons--the topic that sparked this discussion.

Second, since you don't know my opinion or where I stand when it comes to Sheriff Joe--you incorrectly applied your "binary philosophy" (black/white, hot/cold, right/wrong, left/right) that since I believe Marc Rich's pardon was 1000x worse than Sheriff Joe's...I therefor must be a fan of Sheriff Joe (polar opposite of you). Wrong. So any illusion that I am defending Sheriff Joe is strictly a fantasy game in your head. Oh, think I am wrong...OK, quote my words where I expressed support or even defended Sheriff Joe and his actions. You won't find a single one. LOL, I think your reading comprehension skills need some improvement.

Third, the things you call facts--imo, are really your opinions. You have produced nothing to suggest that Sheriff Joe's pardon is worse than Marc Rich's....nothing! Since I respect opinions--rather than respond to each and every "word", I choose to let those worded opinions dangle in the wind, unanswered. Again, my political opinions have little to do with this conversation--but political opinions are obviously front and center in your mind...everyday, every hour, every minute, lol.

Fourth, not everything is about Trump and Company. If you want to start a thread that trashes Trumpy and Sheriff Joe, please go for it. I will not be visiting though, since political attack threads on ICMag are usually nonsensical and...before they are "binned"...become chock full of trash talk; words are typed--that would never be said--if that person was standing in front of you. I type things here--that I would say to a person's face; not afraid of a bloody nose.

Lastly, you are stuck on minutia. Debating minutia is boring--now I am game to debate something real (but not the yakety yak bullshit you spew--which I guess is your best intelligent effort to formulate persuasive arguments). Maybe it has to do with age or maturity, I don't know--but minutia bores me.
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Old 09-11-2017, 02:21 PM #82

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You guys still on this thread? This was proven false......
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Old 09-21-2017, 01:04 PM #83

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So I completed my civic duty for the year (decade I hope) by being a jurist in a civil case (what a fucking waste of time)...and the discussion bounced to the topic of "warrantless searches". Someone said there are about a dozen exemptions that LEO can use to avoid getting a search warrant--and that got me wondering, what are those exceptions? Well there appears to be 13 actually--

The most surprising one for me is #8, the "open fields" exception, hmmm that I did not know.

From a website that explains legal matters for cops:
(add 3rd "w" to make the link read "www.")

There are basically thirteen exceptions to the warrant requirement under the Fourth Amendment. They are:

Exigent circumstances
Stop and frisk
Search incident to arrest
Plain view
Open fields
Abandoned property
Probation search
Protective sweep

1. Exigent circumstances are situations where immediate action is necessary. If the officer takes the time to get a warrant, evidence will be destroyed, life could be lost, or the suspect could escape. It is time consuming to get a warrant. First, the officer has to get the physical description of the place to be searched. A detailed affidavit, describing all the elements required by the court including the probable cause information, has to be crafted. In many jurisdictions, the District Attorney’s office has to review the affidavit. A judge then has to be contacted for his approval and signature. During normal business hours, this can take two to three hours. At night, or on weekends or holidays, this can take much longer. The Ninth Circuit Court in the case of United States v. McConney, 728 F.2d 1195, 1199 1984) provides a good definition of exigent circumstances-

Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.'

Common sense clearly dictates that if someone’s life was in danger, any delay increases the likelihood life will be lost. It is unreasonable to put an officer in the position of choosing between saving a life, and bringing the perpetrator to justice. The officer will always choose saving the life. If the courts mandated that even under these circumstances a warrant must be obtained to properly retrieve and use evidence against the defendant prior to entering his residence, the “exclusionary rule”, Mapp v. Ohio could literally cause the defendant to get away with murder.

The practical application of exigent circumstances is that the officer can enter a home or business without a warrant. The officer is limited to taking steps in ending the emergency. The officer can retrieve and secure any evidence found in plain view, but cannot conduct a full search. Once the situation is stabilized, the officer is required to obtain a search warrant to continue searching for evidence.

The following cases illustrate exigency. Under most circumstances, officers are able to conduct drug investigations with enough secrecy that the suspect is not aware of a pending police search. Search warrants are obtained in compliance with the Fourth Amendment. When a police officer, however, inadvertently discovers probable cause that drugs are in a house, and the suspect is aware of this, the officer may have exigency to enter the residence without a warrant. In the case of US v. Cephas, a police officer knocked on Cephas’s door. When Cephas opened, the officer smelled the odor of burning marijuana coming from the residence. Marijuana is an easily destroyed drug. It can be ingested, burned, flushed, or washed down the sink. If the officer had left to obtain a search warrant, it would be very likely the officer would find no evidence upon returning with the warrant. The officer, therefore, had an exigency to enter the residence and secure it. The officer found some marijuana in plain view. A search warrant was obtained. Further drugs and guns were found. The Sixth Circuit Court applied the same reasoning in the case of US v. Carter. The situation was similar, except that Carter was in a motel. The officer smelled burning marijuana coming from the room. He entered and found evidence in plain view. Further, the Tenth Circuit Court ruled that an odor of a methamphetamine lab justified the warrantless entry of a residence because of an explosion risk, US v. Rhiger.

2. Stop & Frisk, also known as a “Terry Stop”, is a search warrant exception allowed solely for officer and bystander safety. The case of Terry v. Ohio deals with two separate issues. The first involves the legality of the officer’s seizure of the suspect. The second deals with the officer’s authority to submit the suspect to a pat search without a warrant. In the “Terry” case, a Cleveland detective observed suspects casing a business. Based on his observations, he had reason to believe that the suspects were about to commit a robbery. He was concerned for his safety and for the safety of others nearby when he stopped them. He pat searched the outer garments of one of the suspects and found a gun. The detective did not have a search warrant. He did not have probable cause that the suspect was armed, and he did not have probable cause that he had committed a crime. So, why was the officer able to legally search the suspect? The court ruled that the officer was able to articulate enough reasonable suspicion that the suspect was about to commit a robbery. Since weapons are usually used in robberies, the officer was justifiably concerned the suspect was armed. The court stated, “Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required.” The officer for safety reasons was justified in conducting a limited pat search of the suspect’s outer garments for a weapon.

3. Search incident to arrest goes beyond a “frisk” or “pat” search. A search incident to arrest is the thorough search of the suspect and his immediate area conducted contemporaneous to the arrest. The purpose of this search is to look for means to escape, prevent the destruction of evidence, and to secure any weapons. There has been some controversy over the search of a suspect’s vehicle incident to arrest. Many courts have ruled that a search incident to arrest of a suspect’s vehicle is allowed if conducted contemporaneous to the arrest. Other courts, however, have ruled that a search incident to arrest of the suspect’s vehicle is not justified if the suspect is secured in the patrol vehicle. These courts have reasoned that a suspect could not possibly escape from the patrol vehicle, get to his vehicle, and obtain a weapon or destroy evidence. The United States Supreme Court settled this in the recent case of Arizona v. Gant . The Court addressed the searching of the vehicle for officer safety and the search for evidence or contraband. The Court established that a search of a vehicle incident to arrest could occur under the following conditions:

There was a lawful custodial arrest.
The search was contemporaneous to the arrest.
The arrestee was an occupant of the vehicle at the time or just before the arrest.
The search is limited to the passenger area of the vehicle.
There has to be a real possibility that the arrestee or other occupants who are in or near the vehicle can obtain a weapon from the vehicle before it can be searched for officer safety.
A search for evidence or contraband is limited to circumstances where there reasonably may be evidence in the vehicle that is related to the crime that lead to the arrest.

4. Custodial search is the search of a person’s property after he has been arrested and submitted for detention. This type of search is an administrative search done for the purpose of inventorying and securing the personal effects for safekeeping. Although evidence is often found during a custodial search, this is not the primary reason for it. The goal is to protect the officer and the employer, as well as the owner of the property in case theft or damage occurs or false allegations are made. Therefore, there is no Fourth Amendment violation. The same reasoning applies to the custodial inventory of a vehicle when impounded by an officer, U.S. v. Edwards.

5. Plain view is fairly self-explanatory. Any item that an officer has probable cause to believe is associated with criminal activity that he sees in plain view can be seized without a warrant. Although this is simple to understand, several circumstances over the years needed judicial clarification. One of the earlier cases was United States v. Lee. The court in this case said that police can use spotlights and binoculars to enhance their ability to observe evidence. There is also no Fourth Amendment violation to observe something that is visible to the naked eye while traveling in an airplane or helicopter in public airways, California v. Ciraolo. The police are further allowed to use vision enhancement equipment as long as it is accessible to the public, Dow Chemical Co. v. United States. The undercurrent to these cases that is important to understand is that the officer must be in a place that he has a lawful right to be when the evidence is observed. All the cases so far have dealt just with the observation of evidence. What happens if the officer manipulates the item observed to determine if it is evidence by picking it up or moving it? As I mentioned earlier, the officer must have probable cause to believe the item is associated with criminal activity. If he has probable cause, he is permitted to manipulate the item, i.e. look at the serial number. Curiosity or reasonable suspicion is not enough to move the item, Arizona v. Hicks. The main points to remember when a plain view situation occurs are:

The officer must have a lawful right to be where the item is viewed.

The officer must have probable cause to believe the item is associated with criminal activity.

6. Vehicle searches-The advent of vehicles such as automobiles and airplanes did not create a unique situation for the United States Supreme Court. The court recognized historical facts that extended to the beginnings of this country to rely on in addressing Fourth Amendment search warrant concerns over these types of vehicles. The very Congress that proposed and adopted the amendments to the U.S. Constitution recognized a difference between the search and seizure of stolen or forfeited goods, or goods subject to a duty, and the personal effects searched or seized for evidence. There have been numerous statutes enacted by Congress through the history of this country that allow for the warrantless search of ships, boats, wagons, vessels, and other means of transportation for contraband goods. All of these statutes withstood judicial scrutiny. The Congress and courts recognize that the inherent mobility of these vehicles allows them to quickly move beyond jurisdictional boundaries, and escape the enforcement of a search warrant. The citizens of this country, however, would find it reprehensible for an officer to stop and search their vehicles without justification. The United States Supreme Court addressed this issue in the case of Carroll v. U.S. The court ruled that a warrantless search of a vehicle stopped in transit could be searched without a warrant if the officer had probable cause to believe the vehicle was transporting contraband or evidence. In the Carroll case, the search was conducted at the scene contemporaneous to the stop and the subsequent development of probable cause. Does the warrant exception continue if the vehicle has to be moved to a different location for the search to occur? In the case of Chambers v. Maroney, police officers stopped a vehicle and arrested the occupants for armed robbery. The vehicle was moved to the station for the search because it was safer and better illuminated there. The court decided that, if the officers had probable cause to search at the scene, it was reasonable for them to move the vehicle to the station for processing. The officers did not need a warrant to search the vehicle after it was moved. This action was reaffirmed in the case of Texas v. White. The court further added in the case of United States v. Ross that the search conducted could be as thorough as a search authorized by a search warrant. These cases turn on the facts that the vehicle was stopped on traffic upon which probable cause was established, and the vehicle was kept in police possession until the search. What if probable cause was developed during the inventory of a vehicle impounded for safekeeping? In the cases discussed up to this point, the United States Supreme Court has allowed the warrantless search of vehicles stopped on traffic based on probable cause because of their mobility. The probable cause was developed prior to the police taking the vehicle into custody. An impounded vehicle has been taken into police custody. If probable cause is developed after this point, is a search warrant required to search the vehicle? A police officer, for example, finds illegal drugs in the vehicle during the inventory. He can conduct a search of the vehicle without a warrant. There is no Fourth Amendment violation, Michigan v. Thomas. Further, if the officer has probable cause, the vehicle can also be searched after it has been secured in the impound yard, Florida v. Meyers.

7. Border searches consist of the inspection of persons, conveyances, and goods passing through the borders of the United States. The inspection is done to protect the security of the United States, locate contraband or stolen property, and locate and seize items on which duty has not been paid. The Congress of the United States has, since the founding of this country, recognized the need to search persons and property entering the country. The Congress has enacted laws allowing these warrantless searches. These laws do not conflict with the Fourth Amendment, Boyd v. U S. The searches can occur at the border or at its functional equivalent (i.e. an inland airport receiving international flights).

8. Open fields are not protected under the Fourth Amendment. The Fourth Amendment only protects "persons, houses, papers and effects,” Hester v. US. Open fields do not fall within any of these categories. What does “open fields” exactly mean? Open fields encompass any open, undeveloped property that is not intimately used for dwelling (including curtilage) or business. The status of an open field does not change even if a fence secures the property and “no trespassing” signs are erected, Oliver v. United States. If a police officer suspects that there is marijuana being grown, a whiskey still in operation, stolen vehicles being stored, etc. in the wooded area of a farmer’s back forty acres, he can walk out there and look without a warrant.

9. Abandoned property is any property in which the owner relinquishes possession. When the property is abandoned, the owner no longer has any expectation of privacy over that property as protected by the Fourth Amendment. This is constructively done when the owner leaves the property unsecured in a public place, or takes any other measures to surrender ownership. Abandoned property that is rendered accessible to other members of the public is equally accessible to the police. When a suspect flees from the police and throws down a bag of illegal drugs, the drugs were abandoned. When a person leaves a satchel on a park bench, it is abandoned. A resident that removes trash from the curtilage of the residence and places it by the curb no longer has a privacy interest in it, California v. Greenwood.

10. Consent searches are conducted with the express permission of the owner or person with custody and control of the item(s) searched. When a person gives consent to search, he forgoes his right to require the police to obtain a search warrant. Although a police officer may seek consent to search, it must meet certain requirements. The main requirement is that the consent must be voluntarily given. The officer does not have to advise a person not in custody of the Miranda warnings, or tell the person that he could refuse the consent. The court, however, will take into consideration these and all other facts in determining if the consent was voluntary, Schneckloth v. Bustamonte. The court will side with the defendant if the officer coerces consent, such as falsely asserting his authority by claiming he possessed a search warrant, Bumper v. North Carolina. An officer can obtain a verbal consent without any documentation or recording. This, however, is unnecessarily risky. A police officer’s word carries weight with the court, but unforeseen events can occur that may lessen this weight, clouding the officer’s veracity. Many times this happens, not because of officer mistakes, but because of good lawyering, leading to the exclusion of evidence. The officer should use as much ammo as possible to strengthen the case against the defendant. When obtaining consent to search, use a well-crafted consent to search form when possible. A properly crafted form greatly bolsters the establishment of voluntariness. When asking a person to give consent to search, it is the responsibility of the officer to determine certain things. The officer first must establish that the person giving consent has the authority to do so. The person must be the owner of the item, vehicle, or location being searched, or have legitimate custody and control. The person must also possess a level of maturity and mental ability to understand the nature and consequences of giving consent. If the person due to immaturity or mental illness cannot be held criminally responsible, then consent from this person probably would not be considered voluntary.

11. Administrative searches are warrantless inspections generally of businesses that need to be closely regulated. Examples of these types of businesses are nursing homes, restaurants, junk yards, nuclear power plants, etc. The state and/or federal government has substantial interest in how these businesses are operated. For administrative searches to be valid, the following criteria must be met:

There must be a “substantial” government interest supported by a regulatory scheme.

Inspections must be necessary to carry out the regulatory scheme.

The government statutes must notify the business that warrantless inspections will occur, Donovan v. Dewey.

The statutes establish the scope of the inspections and limit the inspectors’ discretion, Marshall v. Barlow’s, Inc.

Searches at airline security checkpoints are a form of administrative search. They are not stop and frisk type pat-down searches that require reasonable suspicion.

12. Probation search is a search of a person on probation and his property and residence. A person convicted of a crime and released on probation often has a search requirement as a condition of release. If the person agrees to the conditions of release, he obviously agrees to being searched without a warrant. The United States Supreme Court said that the search is reasonable under the Fourth Amendment. The court weighed the interests of the probationer’s right to privacy against the government’s right to “further the two primary goals of probation--rehabilitation and protecting society from future criminal violations.” The court ruled that a warrantless search requirement as a condition to being released from custody is legitimate, US v. Knights.

13. Protective Sweep is a limited search of the premises that is quickly done. The purpose of this type of search is to protect the officers on the scene from being attacked by persons undetected in other parts of the premises. A protective sweep can be conducted without reasonable suspicion for the areas immediately adjoining the location of arrest. To expand the search to all rooms of the premises requires at least reasonable suspicion that the officers’ safety are in danger, Maryland v. Buie.
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Old 09-22-2017, 03:55 PM #84

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Police use of ‘StingRay’ cellphone tracker requires search warrant!!!!


A device that tricks cellphones into sending it their location information and has been used quietly by police and federal agents for years, requires a search warrant before it is turned on, an appeals court in Washington ruled Thursday. It is the fourth such ruling by either a state appeals court or federal district court, and may end up deciding the issue unless the government takes the case to the U.S. Supreme Court or persuades the city’s highest court to reverse the ruling.

The case against Prince Jones in 2013 involved D.C. police use of a “StingRay” cell-site simulator, which enables law enforcement to pinpoint the location of a cellphone more precisely than a phone company can when triangulating a signal between cell towers or using a phone’s GPS function. Civil liberties advocates say the StingRay, by providing someone’s location to police without court approval, is a violation of an individual’s Fourth Amendment right not to be unreasonably searched. The D.C. Court of Appeals agreed in a 2 to 1 ruling, echoing similar rulings in the Maryland Court of Special Appeals and federal district courts in New York City and San Francisco....

Rest of the article is here--
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