To clear up a few things....
Private property (whether its a residence or a store in a mall) - The owners / person who legally controls the property do not have to have a reason
to ask an individual to leave. Regardless if the property is private but open to the public (mall / Hospital etc). If a person who lawfully controls
the property says to leave, then you must leave. Refusal can result in arrest for trespassing. In my state a person can use whatever force neccissary,
excluding death, to remove a person from their property who refuses to leave.
With that being said, the same can apply to law enforcement who are NOT responding to a call. If they are present due to call / invesitgation, they
cannot be forced to leave and its not trespassing.
Secondly - Probable Cause.
PC is needed to make an arrest / apply for a search warrant. People are skipping over the term that comes just before PC, which is reasonable
suspicion. To help those understand the difference who arent familiar -
A police officer who observes a vehicle swerving over the center and fog lines, inconsistent speeds, no head lights etc, has reasonable suspicion a
crime is taking place and based on those observations can initiate a traffic stop. During the officers contact with te individual, an investigation is
being conducted to determine what is going on. The investigation will lead to 2 possible conclusion -
* - The driver of the vehicle is impaired based on the evidence present (SFST's / smells / actions of the driver etc).
* - The driver is a bad driver or is undergoing a medical situation, like ketoacidosis (diabetic condition that mimics alcohol intoxication very very
The results of the above moves the officer from reasonable suspicion to probable cause as the driver broke the law. We can then make an arrest however
we must submit our report / PC to the city prosecutor or the PA for the county, depending on what the person was charged with. In my state a person
can be held for 24 hours at which point, if no charges are filed, the person must be relased from jail. The actual filing of charges resides solely
with the PA.
Using the yard sale, and someone else brought up the possibility, the police received a call or drove by and saw the items in plain sight. In
California (I linked to the CA law) you must have a certificate tio purchase a ffirearm and if you are selling you must be a licensed dealer / fill
out and submit paperwork while entering the purchasers name for the background check.
The officer had reasonable suspicion a crime was taking place. That leads to contact to see exactly what is being sold and the subsequent
investigation as to whether or not a crime is taking place. Based on a myriad of possibilities, had the owners violated the law, the officer could
have shut the garage sale down, seized the illegal items and detained the owners until a warrant can be obtained to lawfully search.
The Supreme Court has ruled time and again that law enforcement can secure evidence if their is a possibility the evidence could be tampered with /
destroyed prior to the arrival of a warrant. The same holds for a house, where law enbforcement can enter, detain people inside nd secure the premisis
while waiting for a search warrant to arrive.
Law enforcement can NOT search for evidence until the warrant arrives. They can only secure the people and ensure there is no one hiding / other
dangers present to the officers.
In this case, the officers were within the law, both state and federal.
The lady, by her own words and actions, baited the police in order to get a reaction out of them because she hates all law enforcement.
The lady and guy arguing with the police are not correct in their view of the law.
ETA from a comment in the post above.
California gun control laws are strict. California actually has laws that detemine what type of guns / accessories are legal in the state or illegal
in the state for possession use and buying and selling.
In this case the right to bear arms is applied to the individuals through 2 supreme court rulings (DC and Chicago). Like travel within a state and
across state lines, the act of owning a gun is protected however the type of gun available to buy can be regulated. A person has a right to freely
travel within a state or across state lines, however the manner of travel is not a protected right.
IE if you dont like the TSA you are more than welcome to walk, run, jog, take a bus etc to get to your destination.
edit on 6-7-2012 by
Xcathdra because: (no reason given)