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Texas Cops Unlawfully Detain Driver, File False Charges - You Gotta See This

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posted on Mar, 9 2014 @ 08:24 AM
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Bedlam
Was the guy under arrest,

He was lawfully detained given the circumstances. The vehicle in question was stopped on the shoulder where part of the vehicle was in the drive lane. (a public safety hazard / against the law at the state level for both reasons - Drive lane / shoulder of road).


Bedlam
or just detained for a traffic stop or some sort of half-assed Terry?

A terry frisk can be performed on persons as well as a vehicle. The officer has to specify the reasons for the frisk - which can include a person behavior, physical or verbal or both.

As for traffic stop - The vehicle was on the shoulder prior to law enforcement contact from what I saw in the video. By definition it was not a traffic stop. What occurred would fall into the category of -

* - Self initiated by the officers to check the vehicle. The fact he is in the drive lane and stopped on the shoulder of the road is the basis. Both actions would be illegal under Texas State / Municipal law. With the vehicle partially in the road, and if no one was around it, it could be towed as it poses a safety hazard to other motorists. Those factors, in addition to the drivers behavior, created reasonable suspicion that something illegal might be occurring (Domestic Violence / kidnapping / etc), allowing the officers to further investigate the contact.

* - Lawful detention established - The above info would allow the officers to require an ID, regardless if he is driving or not. The officers will investigate to see if all is ok, and if so all could go on their way. The person refused to provide a state issued ID and only gave verbal information.

**I just now realized I overlooked a possible issue - apologies. ***
Did we ever find out where the guy was from? If he is not from Texas, any return received from out of state will not contain a photo.

The guy in the video claims he knews the law, and even cited the correct one. Apparently he failed to read it all -
TX Penal code 38.02

§ 38.02. FAILURE TO IDENTIFY. (a) A person commits an
offense if he intentionally refuses to give his name, residence
address, or date of birth to a peace officer who has lawfully
arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a
false or fictitious name, residence address, or date of birth to a
peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the
peace officer has good cause to believe is a witness to a criminal
offense.
(c) Except as provided by Subsections (d) and (e), an
offense under this section is:
(1) a Class C misdemeanor if the offense is committed
under Subsection (a); or
(2) a Class B misdemeanor if the offense is committed
under Subsection (b).
(d) If it is shown on the trial of an offense under this
section that the defendant was a fugitive from justice at the time
of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed
under Subsection (a); or
(2) a Class A misdemeanor if the offense is committed
under Subsection (b).
(e) If conduct that constitutes an offense under this
section also constitutes an offense under Section 106.07, Alcoholic
Beverage Code, the actor may be prosecuted only under Section
106.07.


Im not sure what your background is so if you know how to read a law (Im not wording that correctly so I apologize if its come off as rude or condescending).
When looking at a law / statute you will almost always see the following words -
* OR
* AND

If a statute lists a bunch of elements for a criminal act, and that list uses the word AND, it means all elements of that statute must be broken to be in violation of the law.

If a statute lists a bunch of elements for a criminal act, and that list uses the word OR, it means not all elements of that statute must be broken to be in violation.


Bedlam
In Texas the LEO cannot charge for failure to identify during a temporary detention or a Terry.

Actually under Texas Law you can -

(b) A person commits an offense if he intentionally gives a
false or fictitious name, residence address, or date of birth to a
peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the
peace officer has good cause to believe is a witness to a criminal
offense.


As for a Terry Frisk an officer must articulate the reason. In this case the guys words / actions, refusal to provide an ID, wanting to argue on the side of the road etc would meet the criteria to terry frisk for weapons / contraband as a matter of officer safety.



Bedlam
A few Supreme Court judges disagree with you...the minority opinion during Hiibel:


A minority ruling has no impact on the law. Only the Majority opinion is applicable.
Secondly, and I don't know if you noticed this, but your information cited deals with stop and identify laws, not failure to identify.

The difference -

Stop and ID (EX: New York) allowed officers to randomly detain and individual and check for contraband. That is a text book example of a voluntary contact, and I completely agree with the position that a person should refuse to assist the officer in those situations, including refusal for pedigree information.

Failure to Identify - When non voluntary (LEO has lawful / statutory grounds to be present) contact (call for service / 911 calls / investigations etc) is made with a person(s) and during that contact its determined some of the people present are suspects / witness, they would be required to provide pedigree information to law enforcement.

Again, those actions are not a violation of civil rights /constitutional rights etc.




posted on Mar, 9 2014 @ 07:39 PM
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Xcathdra

Bedlam
Was the guy under arrest,

He was lawfully detained given the circumstances.


Right, trying to establish that he was not under arrest at that point. You seem to agree - a traffic stop is not an arrest.



A terry frisk can be performed on persons as well as a vehicle. The officer has to specify the reasons for the frisk - which can include a person behavior, physical or verbal or both.


But under Terry, the detainee need not reply to your questions. Including a request for identification, unless that is criminalized by the state in a properly constructed stop and identify statute, which IIRC has to be approved by the court. Texas is not one of those states.



As for traffic stop - The vehicle was on the shoulder prior to law enforcement contact from what I saw in the video. By definition it was not a traffic stop. What occurred would fall into the category of -

Those factors, in addition to the drivers behavior, created reasonable suspicion that something illegal might be occurring (Domestic Violence / kidnapping / etc), allowing the officers to further investigate the contact.

Lawful detention established -


Again, state that it was not an arrest at that point. I agree.



The above info would allow the officers to require an ID, regardless if he is driving or not. The officers will investigate to see if all is ok, and if so all could go on their way. The person refused to provide a state issued ID and only gave verbal information.


That's where you go into the alfalfa. Missouri has such a requirement, Texas does not. I didn't stop to check Missouri, in many states with stop and identify, you cannot under Hiibel require a state issued ID. Just a name. Unless, of course, you are performing a state licensed function such as driving. I bet if you go look, Missouri cannot and does not require you to carry identification at all times. I don't know of a state that does.




§ 38.02. FAILURE TO IDENTIFY. (a) A person commits an
offense if he intentionally refuses to give his name, residence
address, or date of birth to a peace officer who has lawfully
arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a
false or fictitious name, residence address, or date of birth to a
peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the
peace officer has good cause to believe is a witness to a criminal
offense.


Im not sure what your background is so if you know how to read a law (Im not wording that correctly so I apologize if its come off as rude or condescending).
When looking at a law / statute you will almost always see the following words -
* OR
* AND


Well, actually I do know how. Under clause a, the officer can require ID if the person has been arrested. I think we both agree he was not under arrest. Under arrest, you DO have to provide such information. That's not unusual, a quick perusal of other state laws seem about the same.

It's under clause b that you are making the error. Let's reread it -



(b) A person commits an offense if he intentionally gives a
false or fictitious name, residence address, or date of birth to a
peace officer
who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.


Under clause b, a person commits an offense if he intentionally gives a FALSE address. The only time clause b is relevant is if the guy lies to the officer. Not if he refuses to give any information at all. B.2 "lawfully detains" only pertains if the guy lies. He can, in fact, refuse to answer. Now, if you moved 2 and 3 up to clause 1, you'd have a stop and identify statute, which Texas does not have.



If a statute lists a bunch of elements for a criminal act, and that list uses the word AND, it means all elements of that statute must be broken to be in violation of the law.


If a statute has a definitive clause such as "intentionally provides a false name", then the subsequent qualifiers only pertain if that clause is violated. In this case, nothing in (b) is valid unless that occurs.

Therefore clause a only pertains if the person is arrested. Clause b only pertains if the person lies to the officer. They are not conditions of each other.




Actually under Texas Law you can -

(b) A person commits an offense if he intentionally gives a
false or fictitious name, residence address, or date of birth to a
peace officer
who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the
peace officer has good cause to believe is a witness to a criminal
offense.



Nope. Only if he intentionally gives a false or fictitious name et al.



As for a Terry Frisk an officer must articulate the reason. In this case the guys words / actions, refusal to provide an ID, wanting to argue on the side of the road etc would meet the criteria to terry frisk for weapons / contraband as a matter of officer safety.


And during a Terry stop, you need not provide pedigree info unless you are in a stop and identify state, which Texas is not. Hiibel vs Nevada, IIRC.





A minority ruling has no impact on the law. Only the Majority opinion is applicable.
Secondly, and I don't know if you noticed this, but your information cited deals with stop and identify laws, not failure to identify.


Roll back to the actual post. You stated "Requesting pedigree information is not a violation of anyone's civil rights.
There are situations where an ID can be required, and this case is one of them.
Requesting / requiring Id has no incrimination attachment. Could you please clarify / explain how you arrived at this conclusion? (respectfully asking)"

To which I replied that four of nine Supreme Court justices feel that it DOES have an aspect of incrimination. I'd say they were pretty well versed in the law. So, yes, people who actually are the top of the heap in legal issues feel that it does. So, I don't think that it's crazy, out-of-line or uninformed to think as they do. Respectfully replying.
edit on 9-3-2014 by Bedlam because: (no reason given)



posted on Mar, 9 2014 @ 07:43 PM
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reply to post by Bedlam
 


This is correct. In Texas you do not have to provide an ID. They will ask you if you know your DL number, which they will run. If you don't know it, then they will ask you your name, and cross check/verify some other stuff (address, etc). It is also the law tha tyou have to update your address when you move. I think you get 2 weeks, if i recall. I typically ignore that one. I think its stupid.

It is easy to give a name of someone else. I have know a few folks who have had "bad" cousins give their name int he past. One girl was a black chick with green eyes. The traffic ticket noted brown eyes, not green.
She had it dismissed, and they went to get her cousin instead.



posted on Mar, 9 2014 @ 11:30 PM
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Bedlam
Right, trying to establish that he was not under arrest at that point. You seem to agree - a traffic stop is not an arrest.

A traffic stop is a technical seizure under the 4th amendment (lawful arrest / detention / stop).



Bedlam
But under Terry, the detainee need not reply to your questions. Including a request for identification, unless that is criminalized by the state in a properly constructed stop and identify statute, which IIRC has to be approved by the court. Texas is not one of those states.

No - this goes back to what I was saying about your Supreme court cases you cited. There is a difference between Stop and Frisk (which you based your position, as well as this post, on) and failing to identify to law enforcement.


Bedlam
Again, state that it was not an arrest at that point. I agree.

A traffic stop is a lawful arrest / detention / stop and is a technical seizure under the 4th amendment.




Bedlam
That's where you go into the alfalfa. Missouri has such a requirement, Texas does not. I didn't stop to check Missouri, in many states with stop and identify, you cannot under Hiibel require a state issued ID. Just a name. Unless, of course, you are performing a state licensed function such as driving. I bet if you go look, Missouri cannot and does not require you to carry identification at all times. I don't know of a state that does.

Again, you are confusing Failure to identify to law enforcement and stop and id/frisk. They are fundamentally different and cannot be used interchangeably.

Actually Texas does - TX Penal Code 521.05

Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
(a) A person required to hold a license under Section 521.021 shall:

(1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and

(2) display the license on the demand of a magistrate, court officer, or peace officer.

(b) A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver's license as required by this section.

(c) A person who violates this section commits an offense. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $200, except that:

(1) for a second conviction within one year after the date of the first conviction, the offense is a misdemeanor punishable by a fine of not less than $25 or more than $200;

(2) for a third or subsequent conviction within one year after the date of the second conviction the offense is a misdemeanor punishable by:

(A) a fine of not less than $25 or more than $500;

(B) confinement in the county jail for not less than 72 hours or more than six months; or

(C) both the fine and confinement; and

(3) if it is shown on the trial of the offense that at the time of the offense the person was operating the motor vehicle in violation of Section 601.191 and caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person, an offense under this section is a Class A misdemeanor.

(d) It is a defense to prosecution under this section if the person charged produces in court a driver's license:

(1) issued to that person;

(2) appropriate for the type of vehicle operated; and

(3) valid at the time of the arrest for the offense.

(e) The judge of each court shall report promptly to the department each conviction obtained in the court under this section.

(f) The court may assess a defendant an administrative fee not to exceed $10 if a charge under this section is dismissed because of the defense listed under Subsection (d).




Bedlam
Well, actually I do know how. Under clause a, the officer can require ID if the person has been arrested. I think we both agree he was not under arrest. Under arrest, you DO have to provide such information. That's not unusual, a quick perusal of other state laws seem about the same.

A person who is detained / arrested / lawfully stopped are required to provide identification - See above. When the officer asked for his identification, the person refused to provide his license, which under Texas Law he is required to do. His action, failing to provide his license, was a violation of the law.


Bedlam
Now, if you moved 2 and 3 up to clause 1, you'd have a stop and identify statute, which Texas does not have.

Again, and I cant emphasize this enough, you are using the wrong information.
There is a fundamental difference between Stop and ID and Failure to Identify to law enforcement.

New York City - Law Enforcement uses Stop and ID - Forced "voluntary" contact is made where by the person is required to provide certain information to law enforcement. The ruling you are referring to, where a person does not have to provide ID (the minority opinion), is a ruling on Stop and ID and NOT failure to provide Identification.

Texas - Law Enforcement, when lawful contact is made (traffic stop / investigations / etc) an officer can request identification. When dealing with motor vehicles in Texas a person is required under Texas Law to have his driver's license in his possession if he is operating a motor vehicle and is required by Texas law to produce that license upon demand.

A person who is charged with failing to produce a drivers license under Texas Law can use as a defense to the charge their driver's license. Upon presentation the PA dismisses the charge. Its like vehicle insurance in MO. The law requires it to be present. If a person does not have their insurance card with them, they are issued a citation of no proof of insurance. The defense to that charge is the person shows up to the court and produces the insurance. If the insurance was valid at the time of the stop, the citation is dismissed.

Under Hibbel, a request for pedigree information is not a violation of civil rights.


Texas is NOT a stop and identify state.
Texas IS a failure to identify state.




Bedlam
If a statute has a definitive clause such as "intentionally provides a false name", then the subsequent qualifiers only pertain if that clause is violated. In this case, nothing in (b) is valid unless that occurs.
Therefore clause a only pertains if the person is arrested. Clause b only pertains if the person lies to the officer. They are not conditions of each other.

In correct - The very first section - A


Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.


In the State of Texas, a person is required to provide a driver's license upon demand when dealing with motor vehicle operations (TXPC 521.05), in addition to criminal investigations or witnesses to a crime. The statue is clear - must produce a driver's license. It does not state a drivers license and or verbal information. A citation can be issued and upon proof of driver license in court, that charge is dismissed (per the statute itself).

The request for an ID was proper under Texas Law as well as Supreme Court Rulings because this is NOT a stop and ID/frisk, it IS failing to identify to law enforcement.







Bedlam
Nope. Only if he intentionally gives a false or fictitious name et al.

Incorrect - see above.



Bedlam
And during a Terry stop, you need not provide pedigree info unless you are in a stop and identify state, which Texas is not. Hiibel vs Nevada, IIRC.

Incorrect - Again, Stop and ID/Frisk is [I]NOT[/I] the same as Failure to Identify

The citation you are using does not apply as this situation is NOT stop and ID/Frisk contact.




Bedlam
Roll back to the actual post. You stated "Requesting pedigree information is not a violation of anyone's civil rights.
There are situations where an ID can be required, and this case is one of them.
Requesting / requiring Id has no incrimination attachment. Could you please clarify / explain how you arrived at this conclusion? (respectfully asking)"

To which I replied that four of nine Supreme Court justices feel that it DOES have an aspect of incrimination. I'd say they were pretty well versed in the law. So, yes, people who actually are the top of the heap in legal issues feel that it does. So, I don't think that it's crazy, out-of-line or uninformed to think as they do. Respectfully replying.
edit on 9-3-2014 by Bedlam because: (no reason given)

A minority / Dissenting position for appeals / Supreme Courts are not binding legal rulings. The majority opinion is the legal ruling. Attempting to argue that a dissenting / minority ruling is somehow valid is without base / merit since the legal system does not operate in that fashion. 5/10/20/40 years down the road, if something similar comes up and the Supreme Court gets the case, and some intern locates the dissenting opinion, could impact the courts decision and could very well lead to the change. Until that happens, the minority opinion is whats used.

Respectfully - Your use of Stop and ID is the flaw in your position as it does NOT apply to this situation. This is a failure to identify, which is not the same.



posted on Mar, 9 2014 @ 11:33 PM
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bigfatfurrytexan
reply to post by Bedlam
 


This is correct. In Texas you do not have to provide an ID. They will ask you if you know your DL number, which they will run. If you don't know it, then they will ask you your name, and cross check/verify some other stuff (address, etc). It is also the law tha tyou have to update your address when you move. I think you get 2 weeks, if i recall. I typically ignore that one. I think its stupid.

It is easy to give a name of someone else. I have know a few folks who have had "bad" cousins give their name int he past. One girl was a black chick with green eyes. The traffic ticket noted brown eyes, not green.
She had it dismissed, and they went to get her cousin instead.


In Texas there is no stop and ID/frisk law.

In Texas there is failure to provide identification and failure to have a valid driver's license in your possession when engaging in an action that requires it be present.

That was the situation in the op article. His court appearance, where he most likely had to present his identification, nullified the citation for not possessing a valid license at time of request / demand.

That action can then be used to review the second citation issued, failure to identify to law enforcement. Since the guy was who he claimed to be, that citation (which could still be applied) was dropped.

There is a difference between Stop/ID Frisk and Failure to identify.

Respectfully.



posted on Mar, 10 2014 @ 12:19 AM
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Sorry I meant to state the Majority opinion is whats used.

I stated minority so my mistake - apologies.



posted on Mar, 10 2014 @ 01:04 AM
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Xcathdra
reply to post by diggindirt
 


Sorry I misunderstood your request -

A traffic stop being a technical seizure under the 4th Amendment -
Cornell Law - BRENDLIN v. CALIFORNIA 2007

Restrictions placed on speech is cited in my last response. In those rulings an obstruction charge can be permissible under state law (per Federal appeals ruling with no further challeneg), when specific, when language moves from protected to non protected speech. The Hill decision is geared towards a 3rd party. The Supreme Court has ruled an officer's peace cannot be disturbed, removing that argument (restricting law enforcement's use of that statute). Hence Obstruction.

The info below is the Wikipedia breakdown.
Brendlin v. California, 551 U.S. 249 (2007)

was a decision by the Supreme Court of the United States that held that all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver.




Opinion of the Court
A person is "seized" for purposes of the Fourth Amendment when physical force or a show of authority terminates or restrains his freedom of movement. If the police's intent to restrain an individual is unclear, or if an individual's submission to a show of authority takes the form of passive acquiescence, a seizure does not occur unless a reasonable person would not feel free to leave in light of all the circumstances. If, however, the person has no desire to leave for reasons unrelated to the traffic stop, there is no seizure.

Before the Court's decision in this case, the law was clear that a traffic stop seized the driver of the car. The Court had also repeatedly suggested—but never formally held—that a traffic stop in fact seizes everyone in the vehicle. With its decision in this case, the Court expressly so held. "We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission."

A traffic stop necessarily curtails the freedom of movement of all within the vehicle, and a reasonable person riding in a stopped vehicle would know that some wrongdoing led the police to stop the vehicle. At the same time, any occupant of the vehicle cannot be sure of the reason for the stop. "If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no reasonable passenger would feel free to leave in the first place." Moreover, no passenger could expect an officer to allow him to move around in ways that might jeopardize the officer's safety.

The California Supreme Court went astray by making three assumptions with which the Court disagreed. First, it reasoned that Brendlin was not the initial focus of the police's investigation, being concerned as they were with verifying the registration of the car, which Brendlin did not own. But the Court pointed out that this reasoning ignores the focus of the Fourth Amendment on what a reasonable person would believe, not the subjective intentions of the officers. Second, the California court reasoned that Brendlin was not in a position to submit to the officers' show of authority because only the driver of the car could do so. But the acts that constitute submission to a show of authority depend on what the person was doing beforehand. As a passenger in a vehicle, Brendlin could not affirmatively submit until the vehicle was stopped on the side of the road. Third, the California Supreme Court resisted the conclusion the Court drew because it feared that occupants of cars merely stuck in traffic would also be "seized" under a contrary holding. But the Court noted that "incidental restrictions on freedom of movement would not tend to affect an individual's sense of security and privacy in traveling in an automobile." Indeed, the California court's holding was a kind of incentive for the police to conduct "roving patrols" that would violate the Fourth Amendment rights of drivers.




ETA (Not trying to be disrespectful / condescending so if you are familiar with my comment here just disregard) - US Supreme Court rulings will apply to all states and commonwealths / territories of the US unless otherwise noted. As an example, in Tennessee vs. Garner The US Supreme Court ruled that law enforcement could not shoot a fleeing felon in the back unless that felon posed an immediate risk to the public at large.

That ruling applied to the state of MO (my state). However, under MO law the criteria established for use of deadly force was any felony. Which means if a person tries to write a bad check, they are technically committing a felony, and MO law would allow deadly force to be used.

With that being said, in MO blue book (state statutes issued to law enforcement / any one who wants one) it specifically noted the Supreme Court ruling and noted MO law was in violation of it. So its possible to have legal definitions being different from state to state. The US Supreme Court is the law of the land, so it over rules MO law.

Another example is the federal HIPAA Law (medical). While it is a Federal law, it is defined by state laws.
edit on 5-3-2014 by Xcathdra because: (no reason given)


Now that was a lot of reading and some of it I admit to not being clear in my mind. (It is cases like this that make me miss my law professor so much.) However, it does say that a passenger is seized when the traffic stop occurred.
"When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop."
But your assertion that a seizure automatically seizes the rights under the 1st and 4th isn't supported by this case. In fact it is just the opposite. In this case a car was stopped without probable cause and the passenger was subsequently arrested for an outstanding warrant.
Rather it says that because he was seized without probable cause---the cop admitted that he did not know the suspect was in the vehicle---it would follow that any search or seizure of evidence would be inadmissible because the original stop was without cause.
That fact caused the SCOTUS to vacate and remand the case to the state to reconsider if suppression hinged on something other than an illegal seizure.

"Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."
Yes, they did say a seizure occurs but there is nothing to indicate that the "seizure" included seizure of the passenger's 1st and 4th Amendment rights. Rather they did say that he has rights under the 4th to challenge the proceedings from the time the illegal stop commenced.

"The State concedes that the police had no adequate justification to pull the car over, see n.2, supra, but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission."

The court relies on what a reasonable person would believe. In the posted video, a reason person would believe that the cops were telling the truth when they said they were just making sure everything was okay. The civilian in the video cooperated to the best of his ability by giving them the info they requested. They developed an attitude problem when he objected to their illegal search of the vehicle. When the civilian objected, the officer was halfway inside the vehicle and yet stated that he wasn't searching the vehicle. Seriously? That's the first lie by the police officer to the detainees. How would a reasonable person react to observing a police officer opening the door of the vehicle and sticking half of his body into the van? I believe that a reasonable person would see a search being conducted and would point out that he had not given permission to search.
It was the police officers who developed an attitude and accused the civilian of "coming out with attitude that you don't need to take" or words to that effect. It was the police officers who used vulgar language with the civilian even though he had not threatened or demeaned them in any way that I can see. When he exposes the abject ignorance of the officer in regard to "jackboots, Nazis and Gestapo" the cop gets the attitude about what anyone can say to him. Calling a cop a name he doesn't like is not illegal. Especially when the name fits as it does in this case. These guys were acting exactly like Gestapo. The only difference between these guys and Gestapo is that Gestapo had the law on their side and these guys don't; they are simply acting as though they do as they perform an illegal search on a vehicle. Then they go on to "make up" law and write him citations for crimes he has not committed.
Your reasoning about the manner that the vehicle is parked is moot since at no time did the officers even mention the position of the vehicle nor were the citations given having anything to do with the position of the vehicle. Not applicable at all in this situation. These officers far exceeded their authority and were obnoxious in doing so.
You say that court is the place to argue this but why should courts continue to be clogged up with innocent people who have to take time off from work to attend the court proceedings just because an officer has an attitude about people who know their rights and are not afraid to assert them? Please explain how justice is achieved in this case. The guy was completely innocent of wrong-doing and yet he is cited into court because two jackboots found him offensive, meaning that he has to spend probably at the very least, half a day sitting in a courtroom waiting for his case to be heard or sitting waiting for someone to address his concerns. Is that justice?
I sat in a courtroom last summer in our small town (16k+) and watched at least two dozen cases get dismissed because citations had been issued when no citation was required. I have spoken with both the judge and the DA about this situation and they are quite perturbed about it but they turn your argument the other way---we're not the police and we can't stop them from writing citations, even if those citations are the result of the officer being upset with the civilian.
You say to work with the legislature. I did and I am. I am currently attempting to bring law enforcement in Kentucky into the cyberage.
Last year several folks worked very hard to get the laws surrounding the requirement of a proof of insurance card to include electronic devices as well as a physical card showing proof of insurance. People were routinely being hauled into court for violation of a statute that said they must have the physical possession of the physical card. This was way out of date as the society goes "paperless" and all the business of insurance can be handled without issuance of paper cards. The state maintains a system called AVIS that verifies proof of insurance and is readily available to law enforcement. We got the bill passed and the statute amended to include allowing a citizen to show an officer on a phone or other e-device a proof of insurance verification that can then be verified through AVIS. Did it reduce the number of people appearing in court needlessly? Not so as you can tell. Cops are still writing citations to court for no insurance card even though every police agency got the updates to the statutes. Even when the information the officer was supposedly "seeking" is right there in the database.
So now we must go back and adjust the statute once more, this time to make AVIS the primary source of valid information and in some manner prohibit police officers from writing citations for crimes that they know full well have not occurred.
Here is just one instance that I observed: A person is pulled over for a burned out bulb on their license plate. Driver's license, registration and proof of insurance are automatically demanded. The driver provides a license and registration but as the registration shows, the driver is not the owner of the vehicle. The passenger is the owner of the vehicle and states that the vehicle is insured but his proof is on his phone and he is not in possession of his phone. Officer checks the AVIS database and confirms that the vehicle is insured but writes a ticket to the driver anyway for not having an insurance card as well as the light bulb violation. Then he turns around and also writes a ticket to the passenger for not having the proof of insurance in his possession.
All charges were dismissed so no harm, no foul---right? No, absolutely not. Those people had to take time from their lives, in this case a couple of students missed classes they had paid to attend just because a cop didn't like their looks. There is nothing just or right about that.
The reason we have a set of laws by which to live is generally believed to be that we can find justice through the application of the laws. How does one find justice in the case of the civilian in the video? Are the police pursuing law and order in society by violating laws and wrongfully sending people to the court system?
The cops in the video threatened to take the guy to jail because he had an attitude---yet there is no statute in Texas or any other state of which I'm aware that says having a "attitude" is illegal, much less an offense deserving of jail. The most this situation could have produced was some sort of improper "stop" or "parking on a highway" but that issue was never mentioned.
I also worked with legislators on the law under which I was stopped on Thursday as I related in my earlier post. I knew the law because I was in contact with legislators each and every time the bill moved in the legislature so I know the exact wording and intent. It isn't unclear at all. It applies only to vehicles manufactured after 1981, therefore it cannot apply to a vehicle manufactured in the 1970s. And yet the young man who wrote me the ticket told me he would take me to jail if I didn't comply with his illegal demand for my license, registration and proof of insurance. He stood in the street and simply made up law despite the fact that I had handed him a true copy of the statute and requested that he check it for accuracy. It is my intent to see that he is made aware of the error of his thinking in the most effective manner available to me. He won't be the first to find out that some civilians know their rights and cops can be disciplined for their unethical and illegal behaviors.
Sorry, didn't mean to write an entire brief...but you got me thinking and that's a good thing---even if we disagree.





posted on Mar, 10 2014 @ 02:18 AM
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diggindirt
Now that was a lot of reading and some of it I admit to not being clear in my mind. (It is cases like this that make me miss my law professor so much.) However, it does say that a passenger is seized when the traffic stop occurred.
"When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop."
But your assertion that a seizure automatically seizes the rights under the 1st and 4th isn't supported by this case. In fact it is just the opposite. In this case a car was stopped without probable cause and the passenger was subsequently arrested for an outstanding warrant.


The assertion is valid because a traffic stop does not require probable cause. A traffic stop only requires reasonable suspicion that a crime occurred (whether it be speed / lane violation / DWI / etc). In the case of the op a few posts up is my response dealing with Texas specifics and supreme Court rulings on actions taken by those 2 officers. Their contact was valid / lawful and the request for ID was valid under supreme court rulings and Texas state law.



diggindirt
Rather it says that because he was seized without probable cause---the cop admitted that he did not know the suspect was in the vehicle---it would follow that any search or seizure of evidence would be inadmissible because the original stop was without cause.
That fact caused the SCOTUS to vacate and remand the case to the state to reconsider if suppression hinged on something other than an illegal seizure.

"Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."
Yes, they did say a seizure occurs but there is nothing to indicate that the "seizure" included seizure of the passenger's 1st and 4th Amendment rights. Rather they did say that he has rights under the 4th to challenge the proceedings from the time the illegal stop commenced.

Minority opinions are not enforceable as law and have no impact on any local/state/federal law. As I pointed out in the other posts there is a fundamental difference between failure to identify to law enforcement and stop and ID/Fisk. In the op case its failure to ID, and the appropriate sources are up a few posts.

Secondly, and respectfully, people need to consider the term totality of circumstances. Specifically what led to contact in the first place -
* - A motor vehicle pulled off the side of the road (unless posted, its prohibited).
* - That motor vehicle is not completely off the road, with a part of it over the fog line and inside the lane of travel, creating a hazard to other drivers.
* - Its suspicious in the fact its not something that is normal. When a vehicle is stopped on the shoulder of the road, where parking is a no no, and which can also be a violation of state / municipal ordinance, it was checked on by law enforcement.



diggindirt
The court relies on what a reasonable person would believe. In the posted video, a reason person would believe that the cops were telling the truth when they said they were just making sure everything was okay.

which is why the officer was speaking to the driver and the secondary officer checked the far side of the van. The other factor people are ignoring is the fact a second person was in the vehicle. Is she ok? Was the driver telling the truth? Is she armed? What is she doing. Its not against the law for an officer, when a search is not the intent, to open a door to make contact with a passenger.

Secondly, no one bothered to ask if the window was up or down and whether it was working or not. Those things can also be taken into account when contact is made.

In he video, the officers were being truthful. The guy who wanted to argue about the law was wrong on all accounts, and the info above in the other posts support that position.



diggindirt
The civilian in the video cooperated to the best of his ability by giving them the info they requested.

No he did not comply. Under Texas law he is required to show photo identification. Texas law specifically states that and does not make an allowance for verbal identification. The request of the ID was valid under Texas law and US Supreme court rulings. Secondly, if you listen to him talking, he stated they were switching driving. He made his intent known to law enforcement he was going to operate a motor vehicle in the state of Texas.

If you read the Texas statutes for identifying to law enforcement as well as Driver's license requirements, you will see where he violated the law. Those laws by the way allow for a defense. If he comes to court and show he has a valid license, the ticket is invalidated. When that citation was removed, the second citation enforcement was 50/50 at best, so it was dropped.



diggindirt
They developed an attitude problem when he objected to their illegal search of the vehicle.

A search of the vehicle did not occur. I get the position you and some others are arguing on this one, but im telling you, under law, no search occurred.



diggindirt
When the civilian objected, the officer was halfway inside the vehicle and yet stated that he wasn't searching the vehicle. Seriously? That's the first lie by the police officer to the detainees. How would a reasonable person react to observing a police officer opening the door of the vehicle and sticking half of his body into the van? I believe that a reasonable person would see a search being conducted and would point out that he had not given permission to search.

What if the officer was speaking to the female in the car, and in an effort to shut her up, he started down the road of object to a search?

Secondly, what contact did the female in the vehicle have with the officer on her side? What were they talking about? There is a lot to consider that is taken into account.




diggindirt
It was the police officers who developed an attitude and accused the civilian of "coming out with attitude that you don't need to take" or words to that effect. It was the police officers who used vulgar language with the civilian even though he had not threatened or demeaned them in any way that I can see.

Actually the officers exercised command presence, and that situation elevated because the guy, who claims to know the law and what it says, in actuality does not (see statutes a few posts above). His body language also soke volumes, his hands are down at his sides, clenched, his body in bladed, his feet are off set - all of that is taken into consideration, and those actions when put together can be a threat.

Vulgar language is not a law violation on either side. I have used vulgar language when it has been directed at me to the extent of getting thru to the person who is yelling at me.




diggindirt
When he exposes the abject ignorance of the officer in regard to "jackboots, Nazis and Gestapo" the cop gets the attitude about what anyone can say to him. Calling a cop a name he doesn't like is not illegal. Especially when the name fits as it does in this case. These guys were acting exactly like Gestapo. The only difference between these guys and Gestapo is that Gestapo had the law on their side and these guys don't; they are simply acting as though they do as they perform an illegal search on a vehicle. Then they go on to "make up" law and write him citations for crimes he has not committed.

So when this guy throws out attitude while claiming to know the law, when in reality he doesn't, and then compares law enforcement to a Nazi... and the officers are the one in ignorance?

He can call the cops whatever he chooses. In the end the court room is the proper place for the argument, not the side of the road in traffic.

The officers did not make up the law - again read the statutes posted a few up.
The officers did not commit an illegal search of the vehicle - see this post and a few posts up.




diggindirt
Your reasoning about the manner that the vehicle is parked is moot since at no time did the officers even mention the position of the vehicle nor were the citations given having anything to do with the position of the vehicle. Not applicable at all in this situation. These officers far exceeded their authority and were obnoxious in doing so.

The point is valid - Listen to the video and the reasons the officer gave for contact. Totality of circumstances. You cannot just dismiss law because its doesn't do what people want it to do.



diggindirt
You say that court is the place to argue this but why should courts continue to be clogged up with innocent people who have to take time off from work to attend the court proceedings just because an officer has an attitude about people who know their rights and are not afraid to assert them? Please explain how justice is achieved in this case. The guy was completely innocent of wrong-doing and yet he is cited into court because two jackboots found him offensive, meaning that he has to spend probably at the very least, half a day sitting in a courtroom waiting for his case to be heard or sitting waiting for someone to address his concerns. Is that justice?

because in our system of government law Enforcement is not a part of the Judicial branch, its a part of the executive branch. Law Enforcement does not determine guilt or innocence - A judge / jury does.
Law Enforcement does not lay charges - the prosecuting Attorney is solely responsible for that.

Law Enforcement is neither the judge / jury or Prosecuting Attorney. The proper action is to use that realm for the argument. That setting is where potential law suits / 42 USC 1983 violations can arise for the "suspect" "defendant" to start legal action, both criminally and civil for a redress of grievances.





diggindirt
I sat in a courtroom last summer in our small town (16k+) and watched at least two dozen cases get dismissed because citations had been issued when no citation was required. I have spoken with both the judge and the DA about this situation and they are quite perturbed about it but they turn your argument the other way---we're not the police and we can't stop them from writing citations, even if those citations are the result of the officer being upset with the civilian.

Which means the system is working as it should. The PA is the sole authority on whether or not a prosecution goes forward or if he decides not to prosecute.

The other thing to consider is the State Attorney General / County Prosecuting Attorney and something called an "opinion".
The AG and the PA's can issue an opinion on law in terms of how it will be prosecuted / applied to. In my state the law prohibits a vehicle from having a forward facing light that is either red or blue (reserved for emergency services).

Law Enforcement in one county was writing those citations, and the PA was not prosecuting them. In his legal opinion of that statute, it was intended to prevent individuals who are not in emergency services from gaining access to that equipment. However, the law did not specify, so you had officers who were writing citations using that statute for people who had the ground light effect kits and the small steady burn lights on the hood.

The PA issued an opinion on that law and how it would need to be applied for him to prosecute it.



diggindirt
You say to work with the legislature. I did and I am. I am currently attempting to bring law enforcement in Kentucky into the cyberage.

Bravo - At least you are involved.


Last year several folks worked very hard to get the laws surrounding the requirement of a proof of insurance card to include electronic devices as well as a physical card showing proof of insurance. People were routinely being hauled into court for violation of a statute that said they must have the physical possession of the physical card. This was way out of date as the society goes "paperless" and all the business of insurance can be handled without issuance of paper cards. The state maintains a system called AVIS that verifies proof of insurance and is readily available to law enforcement. We got the bill passed and the statute amended to include allowing a citizen to show an officer on a phone or other e-device a proof of insurance verification that can then be verified through AVIS. Did it reduce the number of people appearing in court needlessly? Not so as you can tell. Cops are still writing citations to court for no insurance card even though every police agency got the updates to the statutes. Even when the information the officer was supposedly "seeking" is right there in the database.

I have seen the above occur as well. The issue you run into, like my state, is the way the law is written. When a person cannot produce an insurance card, I am required by law (no discretion) to issue a citation. I inform the person to contact the PA, explain the situation. They usually have them bring it in / fax a copy and the citation is dismissed. That is not officer's being to harsh. Its officers not being given the ability to exercise common sense in those situations.

In my state if I know they don't have insurance (or a valid license for that matter) and I allow them to drive away, I can be charged. The other concern about the digital stuff is an inability to verify if the information provided is real or if the company is a fake etc.

Personally, I like what Arkansas does. The insurance information is attached to their driving info in the system. If I run someone on my MDT and they are from AR, the return I get shows me their insurance info as well. Since the info is coming from a State source, any issues with the info is on them and not the officer / Driver.



diggindirt
So now we must go back and adjust the statute once more, this time to make AVIS the primary source of valid information and in some

....sniped for room.....,


no foul---right? No, absolutely not. Those people had to take time from their lives, in this case a couple of students missed classes they had paid to attend just because a cop didn't like their looks. There is nothing just or right about that.

The owner of the vehicle is responsible for making sure all legal documents are easily located. If he is going to loan someone his car, then the person assuming responsibility for the car should ensure the documents are present and valid. Finally if people look at their own insurance policies, its entirely possible your own insurance will cover you when driving someone else's vehicle. That insurance, which is usually noted on the card for most of those companies, is just as acceptable.

Aside from that though, Law Enforcement in this area is not the one to blame. That fight needs to go to the legislative branch to get it changed. Its not enough to just complain about how poorly written a law is, and its counter productive to take that argument up with law enforcement when we have nothing to do with how it was written or how the courts deal with it. That is not our primary function.



diggindirt
The reason we have a set of laws by which to live is generally believed to be that we can find justice through the application of the laws. How does one find justice in the case of the civilian in the video? Are the police pursuing law and order in society by violating laws and wrongfully sending people to the court system?

The guy had his day in court and the outcome was in his favor.
the other option I don't believe was exercised, which would be filing an IA complaint against the Officers and a bar/ethics complaint against the Pa and the judge.

People want to complain, which is fine and their right. However, if they don't do it using the right forum, they cant be pissed because nothing happened with it.

At some point, people will need to understand that a person is responsible for his or her actions, and not the state. If something is that bad where a person wish to complain, why do a half assed job of it then? Its not that hard to fill out a complaint form and its not hard to follow up on the status of the complaint.

Again - The actions of the officers were valid, lawful and constitutional. Federal and State Law in addition to Supreme Court rulings supports that.

Not understanding how a law is applied or how case law works does not make something illegal or legal.




diggindirt
The cops in the video threatened to take the guy to jail because he had an attitude---yet there is no statute in Texas or any other state of which I'm aware that says having a "attitude" is illegal, much less an offense deserving of jail.

A few things -
* - almost any criminal offense is arrestable. If you want to get technical every time a citation is issued the person is technically arrested. Instead of booking them into a jail, they are released with the citation. Its one of the main reasons for the signature line on the bottom of the citation and what the officer says (or should anyways imo).

"Sir here is your citation for . Your court date is on this date and time at this location . What I need you to do is sign on the bottom line for me. It is not an admission of guilt and it says you will show up to court to resolve this issue. Before you sing do you have any questions / concerns?

If yes, and within reason, I will answer.

If no, they are given the citation and released.

Refusal to sign the citation can be taken as a refusal to come to court. Texas, of all states, had an incident back in the day where a person refused to sign a speeding ticket. They were arrested and booked. Legal battle ensued, it made it to scotus, and they upheld the officers actions.



diggindirt
The most this situation could have produced was some sort of improper "stop" or "parking on a highway" but that issue was never mentioned.

If you wish to get technical -
Parking / topping on a public right of way (shoulder of road).
Obstructing traffic (vehicle over the line)
Refusal to ID / Refusal to produce drivers license (see above posts)
Obstruction (when he decided to argue instead of leave at the end)
Refusal to obey a lawful command (again at end when told to leave)
Driving while Drowsy
Operating motor vehicle without a license.

In general anyway.. Although there is no real reason to be that much of a dick to the guy, no matter how much o a dick he was coupled with his lack of knowledge of the law.

If you are playing baseball and you are at bat. The pitch occurs, you nail the ball, sending it out to left field. You start haling ass to first base and as you slide in, the other player catches the ball and tries to tag you.

You and the other player can argue as much as you want about whether you are safe or if you were tagged out. In the end, the umpire will make the call. In addition to that call, he has the ability to allow / disallow throw people out of the game etc.






diggindirt
I also worked with legislators on the law under which I was stopped on Thursday as I related in my earlier post. I knew the law because I was in contact with legislators each and every time the bill moved in the legislature so I know the exact wording and intent. It isn't unclear at all. It applies only to vehicles manufactured after 1981, therefore it cannot apply to a vehicle manufactured in the 1970s. And yet the young man who wrote me the ticket told me he would take me to jail if I didn't comply with his illegal demand for my license, registration and proof of insurance. He stood in the street and simply made up law despite the fact that I had handed him a true copy of the statute and requested that he check it for accuracy. It is my intent to see that he is made aware of the error of his thinking in the most effective manner available to me. He won't be the first to find out that some civilians know their rights and cops can be disciplined for their unethical and illegal behaviors.

Illinois had a law that dealt with wiretapping / recording parties. A person not involved in the incident recorded police as they did their job. He was eventually and confronted, arrested and charged with violating the states wiretap laws.

The way the statute is written seems pretty straight forward. Person A cannot do this this or this. The law was specific enough that a PA was able to get a conviction. It eventually was thrown out at the federal level and the federal court stated the law cannot be applied to person recording in public - because a person does not have an expectation of privacy in public.

The wording was specific, concise.
The intent was specific and concise.

Just because something is specific and concise, doesn't mean its absolute and restricted to one or 2 things.

This is why I am also a huge believer in reviewing laws / case laws to make sure our laws are keeping up with technology. We are starting to see that with some Scotus cases now.



diggindirt
Sorry, didn't mean to write an entire brief...but you got me thinking and that's a good thing---even if we disagree.


Don't ever apologize for making an argument on a topic you thing is important. You brought up some good points and I find myself in agreement with them.

My only concern is the use of case law that was ruled in Stop and ID/Frisk cases. That case law does not apply to Failure to ID to Law Enforcement. They are completely different, both in there wording and their intent and their application. Just my 2 cents anyway.

As always if anything of mine comes across as condescending or asshatery like its not intended.

I would like to say thanks to the people who have responded / debated. While we may not agree it is reassuring to know that there are people out there who take an interest in this topic and are wanting to improve / fix things.


thanks



posted on Mar, 10 2014 @ 02:21 AM
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I wanted to add, however the book I wrote above doesn't have room -

In reference to Supreme Court rulings and minority / majority opinions and their application -

If minority opinions were valid, we would not have Obama care and we would still have campaign finance reform bills in place (although if wishing made it so..... but we put our dreams away..)



posted on Mar, 10 2014 @ 04:27 AM
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Xcathdra
Sorry I meant to state the Majority opinion is whats used.

I stated minority so my mistake - apologies.


However, we're not talking about court decisions on this one. To paraphrase you "I can't understand why you feel giving your name and address implicates you, can you explain why", to which my answer was "even Supreme Court justices felt so, and they are better on law than either of us, so it's not an unreasonable thing to think"



posted on Mar, 10 2014 @ 04:31 AM
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Xcathdra

In reference to Supreme Court rulings and minority / majority opinions and their application -

If minority opinions were valid, we would not have Obama care and we would still have campaign finance reform bills in place (although if wishing made it so..... but we put our dreams away..)


If you'd read the reply for understanding, you'd have seen I made it clear I was replying to your request for some explanation of why we unwashed masses didn't leap to give you personal info. I understand about majority opinions. Really, I do. But if you ask for my opinion of why I feel that way, and I give you an example of Supreme Court justices who agree with me, it's a corroboration of my opinion you asked for, not a confusion on my part.



posted on Mar, 10 2014 @ 06:14 AM
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Bedlam

Xcathdra
Sorry I meant to state the Majority opinion is whats used.

I stated minority so my mistake - apologies.


However, we're not talking about court decisions on this one. To paraphrase you "I can't understand why you feel giving your name and address implicates you, can you explain why", to which my answer was "even Supreme Court justices felt so, and they are better on law than either of us, so it's not an unreasonable thing to think"


Fair enough...



posted on Mar, 10 2014 @ 06:53 AM
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Bedlam
If you'd read the reply for understanding, you'd have seen I made it clear I was replying to your request for some explanation of why we unwashed masses didn't leap to give you personal info. I understand about majority opinions. Really, I do. But if you ask for my opinion of why I feel that way, and I give you an example of Supreme Court justices who agree with me, it's a corroboration of my opinion you asked for, not a confusion on my part.


I never called anyone unwashed...

Right I got that.. I am pointing out that the Supreme Court decision you say agrees with you is not accurate. I say that because the case you keep citing has nothing to do with an Officers ability to request/demand ID when LEO's have a lawful / statutory basis to be present.

Stop and ID/Frisk is not the same as failure to identify. One deals with voluntary contact (Stop and ID/Frisk) and the other deals with required contact.

Example -
Stop and ID/Frisk - I am driving down a city street and I see a person doing nothing but walking on the side of the road. I decide to stop, make contact with him, request ID and then pat him down. That scenario is the one scotus is referring to when they stated a person does not have to comply with the request. - Voluntary Contact


Failure to identify - I make a traffic stop on a vehicle that was speeding, it was failing to maintain lane control and it made a wide right turn (I have a reasonable suspicion the driver might be intoxicated based on the traffic violations). The driver of the vehicle is required to produce a driver's license.

* - If there are 2 other people in the car, and I don't see anything in plain sight, only the drier is required to provide an ID. If I ask the passengers, they can refuse since they are not the focus of the stop (Its an Arkansas case that went to Scotus - Ill try and find it if you would like to see it..).

* - If there are 2 other people in the car, and I see open beer bottles in plain sight in the center console area that is accessible to both persons, and neither person claims it, I can require identification from both since an open container in a vehicle is against the law(*see note below*). I can then issue both parties a citation for an open container in a motor vehicle by constructive possession.

*Note - The above is an example of the differences between Stop and ID / Frisk and Failure to identify to law enforcement.
* - In some states, municipalities don't allow open containers at all in the vehicle.
* - In some states (county level) an open container in a vehicle is lawful if it belongs to the passengers and the driver is not drinking / in possession of alcohol.
** check your state laws **

3rd example of Failure to Identify to LEO's.
* - Dispatch sends us to a fight in progress between 2 people. Upon arrival you get every in their corners. One of the parties involved in the fight has to be taken to the hospital for serious injuries. During the investigation you interview an eye witness who stated she saw everything. She is required to provide identification as a witness to a crime. If she refuses she is failing to identify herself to law enforcement (this would take us down the road of a material witness warrant but that's another topic entirely). Why? Due Process.

* - She could conceivably have information about the incident that can describe how the fight started and what occurred from that point up to law enforcement arrival. That information would be able to be used by the defense as well as the prosecuition -


Exculpatory evidence

Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt.[1] It is the opposite of inculpatory evidence, which tends to prove guilt.

In many countries, including the United States, police and prosecutors are required to disclose to the defendant exculpatory evidence they possess before the defendant enters a plea (guilty or not guilty).[2]

Per the Brady v. Maryland decision, prosecutors have a duty to disclose exculpatory evidence even if not requested to do so. While the prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control, the prosecution's duty is to disclose all information known to any member of its team, e.g., police, investigators, crime labs, et cetera. In Brady v. Maryland, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty to seek justice.[3]


Because a witness could be key to a persons guilt or innocence they are required to provide ID. An officer interviews a witness, and the witness refuses to identify and the officer lets it go, it would open up Pandora's box from the outset. Since a witness is generally a 3rd party, they are not the focus of a criminal investigation so any questions asked by law enforcement need to be answered. There is no civil rights violations.

With that being said, did I misunderstand your reply this time around (If I did please reply and give me one more shot so I can try and understand your position.

Sorry - I'm not trying to be difficult / condescending.

As always there are going to be exceptions / factors that can come into play so make sure people to do your due diligence and research the laws etc from your neck of the woods.

As a side note are there any lawyers floating around the site that can chime in? If so please do and if any of my info is wrong let me know.




edit on 10-3-2014 by Xcathdra because: (no reason given)



posted on Mar, 10 2014 @ 07:27 AM
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reply to post by Xcathdra
 


I think you got it on two posts above. The statement wasn't intended as an extension of the stop and identify thing just a reply to "why does this bother you". I agree with one of the SC judges who said the question implies that you are investigating me and are trying to get info to that end. That was the only reason for bringing it up. And a lot of times you guys ask that info for intimidation purposes to be honest, at least in my experience.


edit on 10-3-2014 by Bedlam because: (no reason given)



posted on Mar, 10 2014 @ 07:40 AM
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Bedlam
I think you got it on two posts above. The statement wasn't intended as an extension of the stop and identify thing just a reply to "why does this bother you".

Yeah I missed that so my apologies.



Bedlam
I agree with one of the SC judges who said the question implies that you are investigating me and are trying to get info to that end. That was the only reason for bringing it up.

K I took that question/comment as an argument that for asking a driver for ID(lawful contact) was somehow prohibited.




Bedlam
And a lot of times you guys ask that info for intimidation purposes to be honest, at least in my experience.

let me ask - you say intimidation.

I think I would categorize that area as command presence (not all the time but you get the idea).

As for intimidation I think that boat sets sail the moment we come into contact with, well, almost anyone - A person in a uniform who is armed. I can see people thinking its intimidation.

An issue that we can easily resolve by open communication among all parties.



posted on Mar, 10 2014 @ 09:22 AM
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reply to post by Xcathdra
 


This is correct as well. If you are driving without your license present, it could be a class b misdemeanor should the officer present choose to pursue it, and the presiding judge choose to continue that pursuit. Typically, it doesn't go that way. But if you have pissed them off in the past, or fit some kind of profile, thats exactly how it goes down.



posted on Mar, 10 2014 @ 02:50 PM
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Xcathdra

The assertion is valid because a traffic stop does not require probable cause. A traffic stop only requires reasonable suspicion that a crime occurred (whether it be speed / lane violation / DWI / etc). In the case of the op a few posts up is my response dealing with Texas specifics and supreme Court rulings on actions taken by those 2 officers. Their contact was valid / lawful and the request for ID was valid under supreme court rulings and Texas state law.


Was this truly a traffic stop? When the man first encountered the LEO's, they stated they were just making sure everything was OK. Fair enough. He gave identifying information, which the officer's wrote down, and accepted at this point. He was not pulled over for an infraction, he was already stopped and actively engaging in swapping drivers. A statement to police that he was going to become the driver, does not mean he has operated the vehicle, or was observed by the LEO's operating the vehicle. "I'm fixin' to" doesn't mean "I have".


Xcathdra
TX Penal Code 521.05 Link Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
(a) A person required to hold a license under Section 521.021 shall:
(1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and
(2) display the license on the demand of a magistrate, court officer, or peace officer.
(b) A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver's license as required by this section.


You cited the above section as Texas Penal Code, When in fact, it is part of the Texas Transportation Code Link,
and is applicable while operating a motor vehicle. (See above Bold and Underlined) No, Texas does not have a show your ID law, except under special circumstances.

What it all boils down to is the man was a jerk, the cops were jerks, and people should just take a deep breath and relax a bit. You have made some compelling arguments, but sometimes it's not worth the effort. The initial confrontation and subsequent events, occurred because the man and the cops were not willing to let it go, and move on. Gotta prove my manhood and dominance. Have a great day!



edit on 3 10 2014 by retiredTxn because: Dangit



posted on Mar, 10 2014 @ 04:38 PM
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reply to post by retiredTxn
 


Traffic Stop - No since the guy was already stopped. However -
United States vs. Lewis - 2010

Approaching an individual in a parked car is the same as approaching an individual on a public street; Police may ask questions without implicating the 4th amendments protections.


Berkemer v. McCarty - 468 U.S. 420 (1984)

The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute "custodial interrogation" for the purpose of Miranda.


Texas Law requires identification in certain instances and this would be one of them. Reasonable suspicion a law was violated was made the moment the vehicle pulled onto the shoulder as well as stopping with their vehicle over the line. Third would be using a shoulder to change drivers instead of using a more appropriate / safe location. So without even seeing this person drive they are still valid in requesting ID.

He was charged with Failure to Identify and Failure to produce a drivers license. When the officer asked for his license, the guy refused to provide it. Verbal information is not listed as an acceptable form of Id under Texas Law. The guy was lawfully detained, which means he is required to provide identification to law enforcement under Texas Law.

Texas law requires a drivers license when operating a motor vehicle. If the person has a valid license but does not have it on them, they can be issued a citation. The statute allows for the person to present a valid ID, which in turn allows that citation to be dropped (like insurance requirements in MO). Since the guy was who he claimed to be, the second charge was 50/50.

Operating a motor vehicle - Texas DPS set the criteria for what operating a motor vehicle means. I will look for the specific entry and add it in when I get a chance. Needless to say operating a motor vehicle is not restricted to being in the driver's seat driving down the road. US Supreme Court / US Federal Courts have weighed in as well - case law comes from the DWI / DUI field.

As for the Im fixin to comment - He opened that door the moment he stated he was getting ready to drive. Based on totality of circumstances / progression of the encounter to that point, a check of his driving status would be valid. If his status were to come back suspended / revoked, that info would be relayed to the guy.

An Officer does not have to wait for a violation to occur before taking action (by that I mean public safety courtesy). EX: You don't have to wait for a person who is visibly intoxicated to get in the car, turn it on and start to drive before making contact. Immediate contact would be far safer and would prevent a court appearance.


Penal Code 38.02 / 521.05 -
521.05 established the requirement in order to operate a motor vehicle. Even though its under transportation code, it establishes the criminal penalty for violating it, which is enforceable by Law Enforcement.

Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
(a) A person required to hold a license under Section 521.021 shall:

(1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and

(2) display the license on the demand of a magistrate, court officer, or peace officer.


If not in compliance -

(c) A person who violates this section commits an offense. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $200, except that: ..........


In addition, the transportation code also establishes an affirmative defense for the defendant -

(d) It is a defense to prosecution under this section if the person charged produces in court a driver's license:

(1) issued to that person;

(2) appropriate for the type of vehicle operated; and

(3) valid at the time of the arrest for the offense.


Show your ID law - I answered this question in one of my larger books above these posts. People are confusing 2 distinct statutes.

Stop and ID/ Frisk



posted on Mar, 10 2014 @ 05:31 PM
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Xcathdra

sean
Forced to have ID, Forced to hand it over. The state and police already has that info in the computer. So the officer preemptively forces you into agreement to incriminate yourself, for breaking some law that you don't even know you broke.


Requesting pedigree information is not a violation of anyone's civil rights.
There are situations where an ID can be required, and this case is one of them.
Requesting / requiring Id has no incrimination attachment. Could you please clarify / explain how you arrived at this conclusion? (respectfully asking)

As for the last comment -
I think it is safe to say that the guy in the video should know the law if he is going to start citing it - yes? no?


edit on 9-3-2014 by Xcathdra because: (no reason given)


See you said requesting. Your own words is a contradiction. So if you're requesting the info then it must be a choice, so why is this man getting cited for failure to show ID? You guys use these laws because you know you need that information to fill out a citation so you flip flop it in your favor. So this is forcing him to render his ID under duress. Which is the same as asking him to incriminate himself. May I have your ID so that I can cite you? Ridiculous. Being slightly over the line on interstate highway in the middle of the desert, my gosh that is such an emergency! I have seen cops pull over onto sidewalks and get out, get a cup coffee. Nobody did a damn thing.



posted on Mar, 10 2014 @ 05:55 PM
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reply to post by sean
 


Oh ffs.. Read the books that have been posted above and please take the time to understand them. You seem hell bent on trying to jump on word use and a bunch of other BS.

This info is there.

Read.



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