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Old January 4, 2011, 06:16 AM   #26
teeroux
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This all started when an officer requested ID from the husband. A number of states require everyone to provide identification on demand of LE. His refusal would thus be unreasonable if his state requires compliance to ID request.
It doesn't apply in your home or anyplace there would be an expectation of privacy. Now I didn't see his backyard but I would like to read the law that says you are required to have Identification at all times on your private property.
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Old January 4, 2011, 07:52 AM   #27
GoOfY-FoOt
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What if he was going inside to get his ID and that's when they bull rushed him? Like someone said earlier, even a mediocre lawyer will make good on this one...
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Old January 4, 2011, 08:47 AM   #28
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Conn. trooper, If you want to "seize" a home, you need to "sweep" it? This means you "enter"? If that is what you mean, How do you "sweep" it if you are denied entry by the occupant?

I know little more than what my BOR tells me... If an LEO wanted to search, I would politely tell them to get a warrant and shut the door.

If that means I just created a "stand off"... so be it... Putting your head past my threshold and peeking is SEARCHING and I won't be part and party to an unwarranted search of my home...

Brent


True, if you are securing a scene you would ensure there no people inside to destroy evidence. The sweep is exactly like it sounds, not a search for evidence, just a search for people. Once that has been done, you apply for a warrant. If the evidence that you are searching for can not be readily destroyed, like a gun or crossbow, I would secure the scene and prevent anyone from leaving with evidence and if a warrant is obtained, then I would search. If the evidence could be destroyed, like drugs, money, papers, etc. Then I would sweep, remove the people from the area to be searched, and apply for the warrant.

The best example I can give of a protective sweep is this. I am dispatched to a house where a family member has found a dead body. They have gone to check on a relative and found them dead in the house. I arrive, it appears suspicious, so I check the house for other victims ( don't want to be standing outside and people bleeding to death inside), once the sweep has been made, apply for a search warrant. If it's a natural death that just looked suspicious, so what? Writing a warrant is not hard work and search by warrant is always the best way to go. If it's a legit homicide, you covered your bases and obtained a warrant, no tainted evidence, no evidence tossed out.

Another example. I am doing Commercial Vehicle Enforcement. I stop a truck from Laredo, Texas. A known source city for drug trafficers. I see numerous signs and indicators of narcotics smuggling. A narcotics detection K-9 arrives and sniffs the truck. The dog indicates to the presence of narcotics. I ask for consent to search and the driver says no. I would then secure the truck, prevent it from leaving and prevent the driver from destroying or tampering with anything, and apply for a search warrant based on my training and observations of the known naroctics indicators and the K-9 alert on the vehicle. If the warrant was issued, then I am going to search.
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Old January 4, 2011, 09:12 AM   #29
hogdogs
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The dog indicates to the presence of narcotics. I ask for consent to search and the driver says no.
Funny you mention this scenario... Every time I refuse a vehicle search, the copper gets the Canine Cop to "walk the dog" around my ride... then like clock work, the dog cop gets the dog out of my sight, nods to his buddy and says, "We have an alert" and I am then frisked and my ride searched as they claim PC...

But back to a dwelling and NOT A HOMICIDE... with the RESIDING OCCUPANT inside telling you that you are not SEARCHING.

If you think I would let you step foot in to "SWEEP" for ANYTHING, yer outta yer mind... While "sweeping" for "persons" who "might be destroying evidence" you are performing a VISUAL SEARCH... don't pee on my back and tell me it is a warm summer rain.

Sure... you might not dump my dresser drawers or flip my mattress but searching with your eyes...

So to prevent my rights from being trampled we will just wait for the warrant, you might lose a bit of evidence but that is a small price to pay to make sure an American citizen doesn't have his Civil rights infringed upon... Denying a person of their civil rights can carry a life sentence in federal prison and I wouldn't want that to happen to anyone on my behalf.

Brent
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Old January 4, 2011, 09:21 AM   #30
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But back to a dwelling and NOT A HOMICIDE... with the RESIDING OCCUPANT inside telling you that you are not SEARCHING.

If you think I would let you step foot in to "SWEEP" for ANYTHING, yer outta yer mind... While "sweeping" for "persons" who "might be destroying evidence" you are performing a VISUAL SEARCH... don't pee on my back and tell me it is a warm summer rain.

Sure... you might not dump my dresser drawers or flip my mattress but searching with your eyes...

So to prevent my rights from being trampled we will just wait for the warrant, you might lose a bit of evidence but that is a small price to pay to make sure an American citizen doesn't have his Civil rights infringed upon... Denying a person of their civil rights can carry a life sentence in federal prison and I wouldn't want that to happen to anyone on my behalf.

Brent


And interfering with an officer that is lawfully performing their duties puts you in prison as well. Civil rights only bar unreasonable searches, not searches by warrant, probable cause, protective sweeps, etc. The case law is there. Has been for a long time, interfere or resist and you may end up in prison.

Now if the cops are in the wrong, then let the chips fall where they may. There are legal ways to address mistakes and wrongdoing by cops.
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Old January 4, 2011, 09:58 AM   #31
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Quote:
Originally Posted by Conn Trooper
Now if the cops are in the wrong, then let the chips fall where they may. There are legal ways to address mistakes and wrongdoing by cops.
Indeed.

I think what a few others and I don't grasp is how a PO in the absence of PC could "sweep" (which appears to be itself a search) in order to "secure" (a temporary seizure) a home without a warrant so he can later get a warrant that permits a search and seizure.

That appears to be the situation described in the original post. Toward the end of that, the woman refuses to consent to the search and the PO says he can secure the house, but there doesn't seem to be an indication that he did that.
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Old January 4, 2011, 10:15 AM   #32
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Because in cases like that the cops believe they have PC to search. If they didn't think they had PC, why apply for a warrant? You don't get warrants without PC. So, secure the scene (House, car, person, whatever) and apply for the warrant based on your probable cause. The courts have allowed the securing of a scene if imminent destruction or removal of evidence is possible.

Example-If I find a stolen car and the reporting agency says "hold for prints, or hold for forensic examination", I seize the car ( tow it away and bring it back to the troop, I don't have a warrant yet but I have PC to believe that the car contains evidence of a crime) then based on that probable cause, I secure a warrant and then I search it.

Many times cops have plenty of PC for a search and still go get a search warrant because Judicial Review (a search warrant) is the best and safest way to go. Even with warrants not everything is fair game. If I have a warrant to seize computer information ( like in a kiddie **** case, I am searching and seizing computers, hard drives, etc) and I am lawfully in the residence conducting that search, and I see drugs, weapons, whatever. I would go get another, seperate search warrant for that item. Now if I am in the house with a warrant to seize computers only, I could not open a sock drawer or medicine cabinet, if they couldn't conceal a computer.
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Old January 4, 2011, 10:36 AM   #33
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so if a LEO comes to my residence and for some reason asks to come inside i can deny them their request. they can then come inside anyhow under the fact that they are doing a "protective sweep"? that seems like an underhand trick that LEO's know they have under their sleeve. what then stops you from visually seeing the kilo of crack, pounds of weed, dead bodies, illegal brothel, etc, or nothing at all and not getting the warrant?
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Old January 4, 2011, 11:17 AM   #34
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Um, no cops don't just show up at your door for no reason and ask to come inside. If there is no reason to be there, then there is no need for a sweep or a search.
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Old January 4, 2011, 11:35 AM   #35
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If there is no reason to be there....

Sounds great, until a 90yo great grandmother is killed in a botched raid, PC for which was a false statement by a CI.

Or until a guy with a grudge starts making false complaints.

Or a LEO decides to go look for the guy he shared an off-duty road rage incident with.

All of which have made the news in the last twelve months (the great grandmother died before that, but aspects of the case were still ongoing).

I am generally strongly pro-cop, but blanket statements like "We wouldn't be there without PC" are up there with,"If the President does it, that means it's legal."

The old Roman saying, "Yes, but who will watch the watchers?" leaps to mind.

Secure my property without a warrant, and you had best have all ducks in a row, as there will be lawsuits. In the event an officer acted outside state law or departmental protocol, there would be a parallel suit against that officer.
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Old January 4, 2011, 11:37 AM   #36
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Funny, I already said that, but thanks for the bad cop bs that pops up in very thread.

Why do I bother?
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Old January 4, 2011, 11:45 AM   #37
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Conn Trooper, three of my dojo mates (and best friends) are cops. My HS asst wrestling coach was a cop. A former squadronmate of mine went Secret Service and last I knew was on Bill Clinton's protective detail. My cousin was a cop. Several of my co-workers are former state troopers.

I am not anti-cop, to say the very least.

So accusing me of anti-cop BS for using real world examples to point out that the system can be abused only highlights the fact that the system tends to assume the system is always right, and also tends to lash out at anybody who suggests it isn't always the case.
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Old January 4, 2011, 11:53 AM   #38
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Lash out? Good one. Look a few posts up where I was the one saying there is legal recourse against cops when things go wrong, and that the chips fall where they may if they were in the wrong.

And I " lash out" because without fail, somebody will throw the bad cop scenario out there. No matter what, it pops up sooner or later.
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Old January 4, 2011, 11:59 AM   #39
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I think the bad cop scenario comes up in these discussions because protection against bad behavior is part of the purpose of civil protections.

Quote:
Originally Posted by Conn Trooper
Why do I bother?
Probably because you thought you could answer some of our questions.

Quote:
Originally Posted by Conn Trooper
If there is no reason to be there, then there is no need for a sweep or a search.
That's what gives rise to some of our questions about this story. I still don't understand how a "sweep" isn't a search or why one needs a warrant but the other doesn't.

I can add that to the list of things I don't get.
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Old January 4, 2011, 12:12 PM   #40
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You said....

... there is legal recourse, if the cops are in the wrong.

Your other statements all seemed to imply that you don't think that happens all that often.

Given all the officer interactions that go down in any given year, you are mostly right. Sometimes, though, some pretty ridiculous things happen, and it normally seems that the first thing that happens is the department(s) circle the wagons.

At least, if often seems that things take very sharp turns when contradictory video evidence turns up - often after it's been given directly to media outlets.

I personally believe most cops mean well, and most behave honorably. Same goes for DA's. Assuming that they all don't would be insulting and ridiculous. But assuming that they all do is only slightly less ridiculous. Even if the percentage of dishonest LEO's and DA's is small, they do exist, and so a healthy level of skepticism is a good thing.

I find that most cops I know, even though they'll acknowledge they work with some guys who tend to be bullies and idiots, are loathe to think that their peers would do anything wrong - even when they describe the guy in question as a jerk. Could be professional benefit of the doubt, could be the good cops don't like to see the bad cops (or just inept cops) reflect on them, and don't really want to think about it.

Note: one friend of mine left a job as a deputy because the Sheriff made life miserable for him after he exposed some abuses going on at his county jail. The abuse was systemic, and involved interrogation techniques.

In this particular case, it's very odd that some are arguing that the police "had a history" with the arrestee, and yet the initial problem was that he wouldn't show ID. Did they have a history, but not know who he was? If so, how did they know they had a history?

Of course, it's possible the initial officers on scene were warned about the guy, but didn't know him personally.

It's just that a lot of what was described, sets off personal warning bells. The change in attitude of the one officer, when he realized that A) the lady knew the 4th Amendment, and B) she was recording set off some more of those bells.

Last edited by MLeake; January 4, 2011 at 12:22 PM. Reason: clarification
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Old January 4, 2011, 02:13 PM   #41
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It's just that a lot of what was described, sets off personal warning bells. The change in attitude of the one officer, when he realized that A) the lady knew the 4th Amendment, and B) she was recording set off some more of those bells.


I am with you on that, if you wouldn't want it on the news, don't do it. Being recorded should not make any difference. I can't see the story or the video, for some reason when I try and follow the link I get nowhere. I was speaking in general terms about how we do business.
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Old January 4, 2011, 02:19 PM   #42
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That's what gives rise to some of our questions about this story. I still don't understand how a "sweep" isn't a search or why one needs a warrant but the other doesn't.

I can add that to the list of things I don't get.


Because imminent destruction of evidence falls under the exigent circumstances exception to search warrants (Fourth Amendment). If there is danger of imminent destruction of evidence, you can take steps to prevent that, but that is not a blanket exemption to search or seize. Nor should it be. It is just what it sounds like, prevent the destruction of evidence. That's it. No further. Only after a warrant is obtained, then you search. The sweep should be and needs to be based on probable cause, and your warrant application is also based on probable cause.

So, if I was at a scene where I had PC to believe that there was evidence of a crime to be found, enough PC that I believed that I could obtain a warrant, I would have enough PC to secure the scene and prevent the destruction of evidence. It's not just a let's secure this scene and even though we have no evidence and no probable cause, we will secure it and try and get a warrant.
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Old January 4, 2011, 02:46 PM   #43
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Thanks.

This may make your response clearer to some others.

If I understand your response, the exigent circumstance makes the warrantless search you term a "sweep" reasonable, and it is therefore not an unreasonable search under the 4th Am.

If I misunderstood, feel free to note that.
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Old January 4, 2011, 02:49 PM   #44
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its funny that they mentioned the seize of the house but it was all smoke or bluff. Yes, they could've done that but weren't in the position to do it at that point. Maybe they should get their LT's approval ahead of time and then mention that to the owner when they are planning on actually doing the seize(especially since some officers were saying they didn't know what was going on in the first place).

The man never made it inside his home, so I mean the woman had a point. The guy wasn't to smart to run from the police in his back yard when they asked for ID, but there is no way to know exactly what happened&I guess he had his reasons. Conn Trooper- I realize you haven't seen the video.
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Old January 4, 2011, 02:51 PM   #45
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Nope, thats it. Exigent circumstances (imminent destruction of evidence, loss of life, hot pursuit, etc.) make the search reasonable. Must be based on PC.
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Old January 4, 2011, 03:25 PM   #46
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Hypothetical situation, but I'm curious. Conn. Trooper, if you were called to a drug manufacturing property and had to seize the building to protect evidence, during your sweep, how would you handle it if you saw money printing equipment/some other type of evidence of another crime? Would you ignore the 'other' evidence, until a warrant was issued, or directly after the sweep, get a warrant for ALL types of evidence seen?
And, wouldn't seeing another type of evidence other than what was being swept for, and acting on it, be something amounting to evidence from an illegal search?
Reason I ask this is that my local deputies several years ago busted a man for drugs with a drug warrant. Found his home full to the ceiling with stolen items, but did nothing about it. And, when I asked why not, they said merely that they were in there on a drug warrant.
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Old January 4, 2011, 04:11 PM   #47
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I can understand that a number of states have a requirement that if an LEO asks for your ID you have to produce it, but what I don't understand is this: The male in this situation was under the assumption that he wasn't doing anything wrong. If you're in your own back yard, minding your own business, not bothering or hurting anyone and an LEO walks up and says "Sir, I need to see your identification, now" you can't tell me you're going to hand it right over and say "Yes, Mister Hitler Sir" and not question anything! I sure would question it!
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Old January 4, 2011, 05:14 PM   #48
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Um lets see here, trailor park in Lincoln Nebraska, yards are like 10 foot by 12 foot if that. Now I am not saying he was doing bad things cause I wasnt there, but I myself do not go into trailor parks due to the drugs and violence these places have to offer.

If you live in the ghetto, expect to be treated with suspicion by the cops. I would bet they often have to go to that place and often encounter problem people.

Cops are people, they been to the place before not his but one in the area, had trouble know it may be the same get all worked up, adrenaline pumping, they react he reacts cops will beat you up and or shoot you if they feel they have to for their safety.

I do as they ask, I have nothing to hide. I have seen cops go wild at parties and gatherings and literally beat the crap out of everyone. They are human and get worked up.

I myself would never shoot a bow in the city, I have seen an arrow miss, hit a fence and fly wildly into who knows what. It isnt safe, same as shooting a gun, in the city limits you will be treated badly.

Use common sense and this may not ever happen to you.
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Old January 4, 2011, 05:40 PM   #49
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Hypothetical situation, but I'm curious. Conn. Trooper, if you were called to a drug manufacturing property and had to seize the building to protect evidence, during your sweep, how would you handle it if you saw money printing equipment/some other type of evidence of another crime? Would you ignore the 'other' evidence, until a warrant was issued, or directly after the sweep, get a warrant for ALL types of evidence seen?
And, wouldn't seeing another type of evidence other than what was being swept for, and acting on it, be something amounting to evidence from an illegal search?
Reason I ask this is that my local deputies several years ago busted a man for drugs with a drug warrant. Found his home full to the ceiling with stolen items, but did nothing about it. And, when I asked why not, they said merely that they were in there on a drug warrant.
sixgun


I would obtain another warrant for the items in question. I would not ignore stolen stuff laying around. That is stuff that people worked hard for and had stolen, if I can return it to someone that is missing it, I would.

Plain view is another exception to search warrants. If I was legally in the residence or wherever, and view items in plain view, then they are fair game. Example, I go on an ambulance call, standard procedure for us to respond in this town ( I was a Resident Trooper at the time, essentially a Trooper assigned to one town, and acts as a town officer), and knock on the door. Male comes to the door and I ask if he called the ambulance, he says he did and that he feels like he is having a heart attack. He walks into the living room and sits down on the couch. I follow him in and there is 6 pounds of marijuana, scales, and packaging material right on the coffee table. We secured a warrant and searched the whole place. I was there lawfully, he invited me in, and the items were in plain view, no issues with improper search. This actually happened, the guy had tried meth for the first time and thought he was having a heart attack. And he still let me in.
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Old January 4, 2011, 05:50 PM   #50
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Quote:
Originally Posted by markj
Use common sense and this may not ever happen to you.
The absence of common sense was seemingly universal in this situation. Common decency was also missing. If the guy says he is going inside to get his ID, let him. If he comes out with a gun, respond accordingly. According to what the woman said, there was no reason to believe he was going inside to get a weapon, and none of the officers on the scene refuted that in the video. The only thing they seemed to have was that they got cut on something while they tried to tackle him. They found he didn't have a gun in the home, confirming what the woman in the video said.

You have to have probable cause and a reason to believe that there will be a destruction of or tampering with evidence to seize a house. What evidence were the police trying to save? The crossbow? Was the wife going to flush it down the toilet after they had both already admitted that he was shooting the bow in the yard? There was no reason to believe there was contraband in the home from what I saw on the videos. They found throwing stars, knives, and bows, none of which are illegal in and of themselves.

It doesn't matter where you live, who you are, or what you look like, the police are bound by the constitution and should be obligated to act in a professional manner.
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