reply to post by speculativeoptimist
I was asked to weigh in. My comments below are based on my experience and training. As always if you have legal questions ask a lawyer and as always,
keep in mind things will vary from state to state. Also, my comments are made as I watch the video. So far the one concern I have is the number of
times the video seems to black out, noting portions that were removed for whatever reasons. That extends to the video inside the courtroom as
* - Does law enforcement have a right to check on vehicles that are stopped on public right of ways (city / County / State roads / streets / highways
/ etc) - Yes
(Depending on location there are laws / ordinances that prohibit a motor vehicle being stopped in that manner on the side of the road. Also, stopped
vehicles can pose a danger to traffic. If you notice the vehicle is stopped on the side of the road, however it is still partially over the line,
placing it in the drive lane).
Regardless if the person was stopped prior to law enforcement arrival, once on scene its a lawful detention.
* - Is a person required to produce identification upon demand by Law Enforcement? - Depends
(Check your state / local / city laws / ordinances).
* - What is an Arrest? - Depends
(Check your state laws for this) - I bring it up because in my state the law reads any lawful arrest, detention or stop. The location of the vehicle
coupled with being stopped on the side of the road constitutes lawful contact, allowing the officers to investigate what is going on.
** NOTE - Other things to consider that most people do not thin about - Is the location of contact in an area where there is high crime / drug related
issues / etc ***
* - Can Law Enforcement ask for identification during those contacts - Yes
Is providing verbal information allowable? - Depends on the situation / state laws in effect. (My state requires a DL be in a persons possession if
they are operating a vehicle that requires it. My MDT allows me to enter verbal information and retrieve the Driver's license Photo to help determine
if the person im dealing with is the same person). Absent that we let dispatch know the info is verbal only, and they give us vital stats.
* - Can a person refuse to provide Identification - Depends on State laws / Situation.
* - Is looking thru vehicle windows to see inside a vehicle a search? - Per US Supreme Court Rulings - No
Anything inside the vehicle that can be seen from the outside without assistance is fair game (IE Drugs in plain view / open alcohol containers).
Plain View Contraband is an exception to the 4th.
* Does an officer require a warrant to search a motor vehicle? Depends
If Plain view contraband is located - no.
If the owner / operator gives the officer consent - no.
If a person in the vehicle has a warrant - Arizona vs. Gant - restricts search of motor vehicle as an incident to an arrest based on warrant.
If the search is based on arrest for DWI / DUI a search is valid under AZ vs. Gant (Us Supreme Court Ruling).
Can an Officer open a car door to look around like in the video? - Based on my experience and training no.
A plain view search only applies when items are in plain view. Anytime something must be manipulated, a warrant is generally required. I am not
familiar with Texas Law so I am not sure if they have any court rulings that allows that down there.
* General rule of thumb - If possible, obtain a warrant.
If a search is by consent, can a person stop that search and rescind consent - yes.
If contraband is located prior to the request to stop - the search can continue.
As for the question asked about drawing the line for illegal actions (in this case a search of vehicle) -
Law Enforcement is not the judge. The reason the law requires and individual to cooperate, even if they feel actions are unlawful, is based on the
premise that those arguments can be raised in court, which is the proper setting to challenge actions. If it is not done in that manner, the number of
incidents where a person thinks they can prevent something, when in fact the officer actions is lawful, places both parties in unneeded danger.
The comment made about an officer looking around a house without a warrant is actually valid. The Supreme Court ruled officers can conduct a limited
search of a residence in order to make sure no other persons are present than can pose a risk. The search is limited only to areas a human could
possibly be located.
* - As for the attitude of the officer - To be honest I've copped an attitude back towards people that have behaved in the same manner as the vehicle
owner. The number of people we encounter who think they know the law when in reality they do not is staggering. I don't mind a person giving me
their opinion, but at some point I would most likely shut down the conversation and tell the person if they have issues contact a lawyer / file a
complaint with my agency / bring it up in court.
* - USE of FORCE-
Excessive force - nope. Contrary to popular belief there are laws governing what is and what is not excessive force. Specifically because of people
like in the video, who want to act like they know the law when in reality they do not. For Law Enforcement use of force starts at the moment of
contact - first with a marked patrol vehicle and secondly with a uniform.
* - Freedom of Speech - Can be curtailed during a lawful arrest, detention or stop. Why? because the officer who makes the stop is solely
responsible for all persons at that scene, including those in the vehicle as well s those who are passing by. If we have to take the time to argue it
increases the likelihood of potential danger (IE other traffic / missing something over the arguing / verbal commands). As I stated before, a court is
where these issues are raised, not the side of a road.
In addition to speech, the manner in which a person is standing is also taken into account. Bladed body, clenched fists, clenched jaw muscles,
constantly looking around, constantly looking at where items are on the officers duty belt, breathing / the manner in which he speaks (signs of drug /
alcohol / medical issue).
* Laws he is citing -
A person needs to be aware of all laws before challenging it in this manner. As an example in my state passengers in a vehicle can be in possession
of open alcohol in a motor vehicle on county roads. City ordinance says no open containers, so they can be cited the moment they cross into city
limits. Also, in my state failure to ID is only enforceable by municipal officers (state never passed the law) so it can only be enforced by
* - His contention about requiring physical ID is a separate law and applies when a person is operating a vehicle that requires a drivers license. The
requirement of ID for motor vehicle operations and requiring to produce ID to an officer under required to Id laws are separate.
Issuing Citations - in this area I don't see a violation on the part of the officers. As I stated above, the laws governing identification upon
request and identification for driving are separate and the requirements are different. Its possible to violate both based on the law. In this case,
he only provided verbal information. In my state, a person with a valid DL who does not have it with them can actually be cited for it. The PA
usually makes them show their proper ID and then dismisses the charge.
His contention on not operating a motored vehicle - He admitted that he had been driving when he stated he and his wife were switching positions. At
that point there was no need to visually establish who was driving since the vehicle was stopped within their jurisdiction, specifically to change
drivers. The admission was present.
Coming back to argue about the citations - he is lucky he was not taken to jail for that. while I understand he is pissed, the side of the road,
actually in his case standing in the lane of travel, is not the place to make that argument. Regardless of how right he thinks (or actually is) the
place to challenge the incident is in court.
His post incident commentary about receiving the video etc is conjecture as to what small town officers do. To make the comment that the PA stated
that is sad to be honest. Even more so now that I got to the part where the PA is discussing that issue. The way the guy portrayed the conversation is
not what was stated by the PA.
Was a search conducted? Depends on what you consider a search. As I stated, what the Supreme Court considers a search and what civilians consider a
search are not the same thing. Was the door on the passenger side already opened? Was it an actual door or sliding door for minivans? Was anything
People make the same argument for searches when in facts its a terry frisk.
His attitude towards the legal system is... interesting to say the least. I get the impression this person does not care for law enforcement /
government. There is nothing wrong with that however sometimes it can cloud judgment.
Comment about his criminal trial - Would need to see if the charges are misdemeanors or infractions under Texas law. Traffic hearings are not always
criminal trials and as such, different standards can apply in the setting.
His argument about the copy of the video seems to be coming from something called discovery in criminal trials. Since he I "representing himself"
he is still required to follow court procedure in order to obtain documents / evidence. Sending a letter requesting it to the Pa is not a "formal
request". A formal request is made with the court itself, not the PA.
Also, contrary to popular belief most court appearances are not recorded or officially recorded. the manner in which this guy speaks to the PA and
the Judge is problematic. he expectation on how he thinks the system works, and in reality how the system works, are not the same.
I cant arrest him for anything he has done. while the person assumes it is in reference to his court case, its entirely possible its in regards to
his actions in court itself. Secondly, depending on state law, some infractions / misdemeanors can be non arrestable (Cite and release). The other
factor is the jail itself and what their policy is towards certain crimes. Our jail is joint city - county and our county population is almost half a
million. Minor citations like trespassing, while arrestable, are generally cite and release at the direction of the sheriff do to inmate
His actions at the end are stunning to be honest. First the PA is solely responsible for whether or not a charge goes forward, not him. Since the PA
did not go forward, I don't see where this guy has standing to challenge that decision. Secondly, he is once again trying to use legal lingo that is
not available at that level - with prejudice - which would prevent the PA from refilling the charges. Since no charges were filed, I don't see how
his motion is even valid.
I guess this is where I get yelled at.
After watching the entire mess, I don't see anything wrong with the Officer's or their actions. That is based on my experience and training. There
is no law that says an officer cant be a jack ass (although there might be departmental policy on it). There is also no law (***with exceptions***)
that prevents an officer from lying to a person. the way this guy reacted to what was occurring, while he makes some good points, doesn't excuse the
fact his method / manner and location is just plain wrong.
I give the guy props for taking a stand, even though I don't agree with what he is trying to present to the public. It is not enough to be able to
rattle of a law. A person must know what rulings dealing with that law are in effect. They must know case law as well as federal appeals circuit
rulings that affect those state laws.
Hence the reason a person is to make their argument in court and not the side of the road.
Sorry.. I just cannot agree with the guy in the video.