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Old July 6, 2013, 02:02 PM   #26
johnelmore
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Its better if the window is up 3/4 of the way for all involved including the officer. The window provides a partition of safety. The driver cant lunge out at the officer and its a bit more difficult for the driver to pull a firearm on the officer. Try pulling a firearm with the window up. You wouldnt be able to stick your hand out the window.

The officer believes its better to have the window all the way down but I beg to differ. He doesnt need it down.

In any event there are civil courts which can decide on this matter. My opinion is that officers should be held personally responsible rather then holding the tax payers responsible.
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Old July 6, 2013, 02:33 PM   #27
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Re: DUI checkpoints: another example of how they can be abused

Quote:
Originally Posted by OuTcAsT View Post
kxkid wrote:

The key word is "lawful". Care to cite any law that makes this particular order lawful ? Simply because a LEO gave the order ?

Yes if a cop says to roll your window down more you must. Go ask any lawyer they will tell you the same that is a lawful order.


Really ? That depends on what constitutes an "alert" The dog in the video clearly is following a command.

You obviously have no idea how a k9 search is done on a car. There is a high and low search and the only way the dog knows what to do is by following the handlers hand.

Officers do not explain to you what the dog's reaction will be if he "alerts" on something so, anything could be considered a "hit".

We are not required to. But most dogs sit since departments do not like the liability of the scratching hit. And what I say in the video where the driver said the dog "hit" was not a hit at all and reason is the dog did not act like he wanted to go in, just jumped up to where the handler said to and did not smell anything.. If I saw video from the outside I could tell you if it was.

This particular "checkpoint" has existed in that area for years and, pops up at random. I drive through this area regularly, had my entire truck searched for no reason other than the "alert" of a dog. They found nothing because, there was nothing to find. I filed a complaint but, nothing has changed.

Hopefully this video will cast some needed light on this "checkpoint".
There are times where the dog is having a bad day and will alert to food. You never know. But like one person said the kid set this up and got what he wanted. Only thing is he doesn't let you know is that he did everything correct to get this reaction. If he just rolled the window down he would have been fine. Also its a DUI check point a lot of drunks try to keep the smell of the alcohol in the car by only rolling the window down partly, so you see my point about it being a lawful order?
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Old July 6, 2013, 05:59 PM   #28
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I just looked at the video again and the officer was saying to the officer the reason for the search was the fact the driver asserted his rights so this was a punishment more or less.
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Old July 6, 2013, 06:00 PM   #29
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Quote:
Everything I read basically says that you must do what a LEO says to do unless the action ordered is itself unlawful. There are, of course, exceptions and specifics that have been clarified by courts but, generally speaking, it seems that a "Do this..." is a "lawful order".
--BP

Quote:
Also its a DUI check point a lot of drunks try to keep the smell of the alcohol in the car by only rolling the window down partly, so you see my point about it being a lawful order?
--kx

And people conceal weapons illegally under their clothes, it doesn't automatically mean an order to lift one's shirt is lawful and constitutes a reasonable search barring any other evidence of wrong doing. The pedestrian equivalent of a dui checkpoint was the NYC stop and frisk program(instead of drunk driving being the motivating factor, it's concealed weapons)...they were stopping lots of people, just for being at certain areas at certain times, so then by the previous logic, this was lawful, the officers told them to do something, which in itself wasn't an illegal, so it was a lawful order... A further parallel is that the officers ability to go observe and question someone on the street is not in question, but rather how far they are allowed to go, and with what does a person have to comply. Stop and frisk was ruled unconstitutional, and lower courts decision has not yet been challenged.

Similarly, one of the issues here surrounding the idea of lawful or unlawful order, specifically in this case, is that SCOTUS did their normal extreme specificity in their ruling in the Michigan case. They explicitly stated that the seizure/detention is ok and that questioning and observation are ok. But remained silent as to what exactly is still considered reasonable under these circumstances. They did not answer the question whether the additional intrusion into someones private space afforded by to what degree a window is rolled down constitutes a search, they didnt address whether that's a form of self-incrimination, and they left the details of what a "proper" checkpoint is up to the states. Additionally, they did not specify whether a person must comply with the questions and observations, just that they may be conducted.

Without knowing the TN law and constitution its pretty difficult to make these determinations. However, based on the Michigan decision, a partially rolled down window does not with an officers ability to communicate with the person inside, which then hinges on does it interfere with the ability to observe. So assuming the officer is only asking for the window to be rolled down so that he/she may look for evidence beyond a barrier, arguably a search, is it a search and is that search reasonable? Is there an expectation of privacy in ones car, from olfactory intrusion? Katz v US would imply that you have an expectation of auditory privacy in your car, so does that extend to smells? It is also worthy to note that Katz spells out that physical intrusion is not necessary for a search to have occurred, so even though the officer doesn't physically intrude into the space, a search could have still occurred.

So is it a lawful order? Does that order, lawful or not, constitute a search? I don't know, but it is dangerous to assume just because an officer says something that it is lawful or that you must comply.
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Old July 6, 2013, 07:15 PM   #30
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Let me clarify some things. There are some things you have to do when an officer says to do them but there are other things you dont have to do. The officer will not tell you which things you have to do or dont have to do.

An example, when an officer says to put that pistol down you have to do that. When an officer says you need to walk that line during the drunk driving stop you dont need to do that in many states and its best you decline.

The best advice in that regard is to research and go through the possible scenarios. There are things which are required you follow and other things you are not required. In any event the officer isnt going to educate you and they will probably give you a hard time if you dont do what they say making it harder to distinguish what is required and whats not. I am all for a law which makes the officer inform someone whats required and whats not required. That would make our land more free in my opinion.
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Old July 6, 2013, 08:14 PM   #31
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So can some of you legal eagles explain why the officer couldn't be arrested on the spot for violation of constitutional rights? There's a few that are in jail for constitutional violations but usually when someone dies involving official oppression. Just curious.
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Old July 6, 2013, 08:52 PM   #32
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Quote:
So can some of you legal eagles explain why the officer couldn't be arrested on the spot for violation of constitutional rights?
Those things are generally civil matters, and not handled by arrest.
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Old July 6, 2013, 11:13 PM   #33
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Quote:
I am all for a law which makes the officer inform someone whats required and whats not required. That would make our land more free in my opinion.
Ah, let me see, where have I heard that solution before?
Oh, all we need is ... more laws.
Right there is the solution to any problem. We just need more laws.
dc
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Old July 7, 2013, 09:22 AM   #34
OuTcAsT
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From the Constitution of the State of Tennessee :

Quote:
Article 1 Section 7.
That the people shall be secure in their persons, houses, papers
and possessions, from unreasonable searches and seizures; and that general
warrants, whereby an officer may be commanded to search suspected places,
without evidence of the fact committed, or to seize any person or persons not
named, whose offences are not particularly described and supported by evi-
dence, are dangerous to liberty and ought not be granted.
Additionally, (IANAL) The Tennessee Code Annotated, recognizes that a persons : Home, property, business, and vehicle, are considered the same under the law, at least for purposes of self defense. ( I can find no other section where this distinction is excluded for any reason, including the motor vehicle section)

Let me ask a question of those who are advocating the officers here: If an officer comes to your front door, and knocks, you answer the door and, open it just enough to stick out your head and communicate with him, and he "orders" you to open the door fully, are you going to comply ? How about if he "orders" you to let him in your foyer ?
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Old July 7, 2013, 09:56 AM   #35
johnelmore
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There is a test you should use to know when you should follow the officers orders. If the officer has a pistol, taser, pepper spray or baton drawn and is shouting orders then obey the commands given absolutely. It can later be argued you submitted to the orders under duress.

If it seems like a polite engagement then you can verbally decline doing so in a civilized fashion but you cant physically decline. When declining always speak loudly for the officers recording device.

If the officer comes to your door and it seems like a polite engagement then verbally decline. If the officer is pointing a weapon or forces their way in then you have to submit.

There are situations which the law mandates a certain action to be taken when an officer asks. For example, an officer approaches and stops a concealed carry permit holder. In some states its mandated the permit holder inform the officer of the firearm and permit.

Research and go through scenarios...I might add its best to go through scenarios with a local defense attorney. They may charge you like 300 dollars but thats 300 well spent dollars. It will cost a lot more if you do the wrong things during one of these encounters.

Last edited by johnelmore; July 7, 2013 at 10:16 AM.
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Old July 7, 2013, 10:36 AM   #36
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The kid is a patriot.

Why do we have illegal searches ? Because people submit to them.

If the majority of the population did not submit to them we would not have them.
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Old July 7, 2013, 11:11 AM   #37
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The thing I find troubling is that we are arguing over how we should behave at police checkpoints in a free country.

We should be ashamed that we accept the presence of such checkpoints as compatible with our liberty.
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Old July 7, 2013, 11:31 AM   #38
OuTcAsT
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Quote:
Yes if a cop says to roll your window down more you must. Go ask any lawyer they will tell you the same that is a lawful order.
I asked, It's not. It is at my discretion how much I roll down the window in order to communicate effectively,If he can see me clearly, and we can communicate verbally and, documents passed freely, that is all that is required. beyond that is an unreasonable request.

Quote:
You obviously have no idea how a k9 search is done on a car.
I digress, and am certainly no expert. I see that you seem to qualify yourself as one;

Quote:
I worked a lot hand in hand with my departments k9's,
And you admit to the following:

Quote:
They are trained on orders
Quote:
There is a high and low search and the only way the dog knows what to do is by following the handlers hand.
So, the dog only searches where he's told, and only on orders ?

You also said;

Quote:
And what I say in the video where the driver said the dog "hit" was not a hit at all and reason is the dog did not act like he wanted to go in, just jumped up to where the handler said to and did not smell anything.
Yet, the officers claimed it was and, as a result, searched his vehicle on the premise of "probable cause" of a "hit" that, by your own expert opinion, was not ?
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Last edited by OuTcAsT; July 7, 2013 at 11:40 AM.
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Old July 7, 2013, 01:49 PM   #39
kxkid
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Re: DUI checkpoints: another example of how they can be abused

Quote:
Originally Posted by OuTcAsT View Post
I asked, It's not. It is at my discretion how much I roll down the window in order to communicate effectively,If he can see me clearly, and we can communicate verbally and, documents passed freely, that is all that is required. beyond that is an unreasonable request.



I digress, and am certainly no expert. I see that you seem to qualify yourself as one;



And you admit to the following:





So, the dog only searches where he's told, and only on orders ?

You also said;



Yet, the officers claimed it was and, as a result, searched his vehicle on the premise of "probable cause" of a "hit" that, by your own expert opinion, was not ?
They said there was a hit on the vehicle, the kid is the one that said when the dog jumped on the window was a hit. So tell me this. I had a drunk lady that refused to roll down her passenger window because she did not feel safe and her right as a women but said she would on the driver side which was right next to the highway. I am sorry but that's just like someone not rolling down their window all they way. I gave a order and she refused.
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Old July 7, 2013, 02:02 PM   #40
OuTcAsT
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kxkid wrote;
Quote:
They said there was a hit on the vehicle, the kid is the one that said when the dog jumped on the window was a hit. So tell me this. I had a drunk lady that refused to roll down her passenger window because she did not feel safe and her right as a women but said she would on the driver side which was right next to the highway. I am sorry but that's just like someone not rolling down their window all they way. I gave a order and she refused.
I am sorry but, I do not understand your response. Can you re-phrase, perhaps I am missing something ?
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Old July 7, 2013, 02:05 PM   #41
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kxkid, your reasoning is at best circular, what you're saying is "its a lawful order because its a lawful order." At worst, it's a case of "because I said so." Just because you told someone to do something, doesn't make it lawful. If you are in a position of authority as your posting would imply, you should be able to cite law(statute or case) that gives you that specific authority. More importantly, if you're not LE in TN, you should consider what might be a lawful order where you are, might not be there.
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Old July 7, 2013, 02:28 PM   #42
OuTcAsT
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kxkid, There is a difference between an "order" given by a LEO, and an "order" given by a LEO that actually has a law behind it, that says I must comply.

For instance: The law says that if I am "blue lighted" by a LEO in a squad car, I must stop. This is a given and, I am following a "lawful order".
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Old July 7, 2013, 03:04 PM   #43
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The video displays a classic case of "Contempt of Cop" IMO. I am definitely not anti-LEO. But I am against the tactics I saw the LEO use in the video.
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Old July 7, 2013, 03:21 PM   #44
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Anyone who works a job whether it be a police officer or the lady at the local Starbucks, we have to show a bit of respect and civilized behavior. Ask yourself, do you appreciate people testing you and giving you a hard time at your job? The person who created this video was purposely trying to give the officer a hard time. In return for the hard time the officer was given, the officer gave the video creator a hard time. It seems like a fair exchange.

Before passing judgement on the officer in the video, ask yourself if you would appreciate someone giving you a hard time at your work. There must have been times in the past when someone gave you a hard time at your work and how did you deal with it? How did it make you feel? This is the officers job and its something he was assigned to do. He didnt wake up one day and choose to setup a DUI checkpoint. His superiors decided to set it up and he was involuntarily assigned to work it.

Write letters and meet with the political leadership and the head of the department. You are always free to protest with signs and the like in a civilized way. You can write posts on websites and send letters to the editor. However, the wrong way is to give someone a hard time at their job and thwart the checkpoint in some type of devious manner.
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Old July 7, 2013, 03:58 PM   #45
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Quote:
Anyone who works a job whether it be a police officer or the lady at the local Starbucks, we have to show a bit of respect and civilized behavior. Ask yourself, do you appreciate people testing you and giving you a hard time at your job? The person who created this video was purposely trying to give the officer a hard time. In return for the hard time the officer was given, the officer gave the video creator a hard time. It seems like a fair exchange.
Therein lies the issue...being a police officer is not even remotely the same as working at starbucks. A police officer a) works for the public good b)operates under legal authority c) has the potential to commit violations of someones rights under the color of that authority to a vastly greater degree than someone behind the counter at starbucks. How are people to trust officers to properly uphold and enforce the law, if they succumb to petty revenge/tit for tat behavior?

If you want to related it to private sector jobs, do you really think that if an employee of starbucks, for example, went off on a rude customer that they would remain employed? So somehow, you expect a lower standard to be applied to those who enforce the law? "Well its ok because the guy had it coming." Really...is that your argument? Whether or not one would appreciate being given a hard time is not relevant.

Additionally, while they may not have chosen their specific assignment, they did choose to be a police officer. I can be relatively sure that no one ever told them: "Hey this is a super easy and laid back job, no one ever gives you any trouble." In fact I would guess at some point in time they were told or recognized, that is is not an easy job. What they do have control over, even after an involuntary assignment, is how they behave. If you feel that someone with no authority should act respectfully, shouldn't this also go for the person with authority, regardless of how the person they're interacting with behaves themselves?

The issue with just bringing it up via letter writing is that, barring state law issues(which in TN its unclear whether they would survive a court challenge), checkpoints are legal. However, just because the checkpoint is legal, does not make all actions conducted at the checkpoints legal. Additionally, for a lawsuit to change the law or manner in which the checkpoints are conducted, it has to be shown that they are not operating within the standards set forth, and or are incompatible with current state law or constitution. For a case like that to have standing or merit, that evidence should come from more than just a theoretical legal analysis, ie showing actual harms done to people passing through those checkpoints.

So, while in this case, the person failed to follow up with a complaint which would bring additional scrutiny to the issue, as a whole, without people doing such actions, rude or not, and if everyone just complied, the outcome would be continued issues like this.

Furthermore, it is interesting, that in an issue that revolves around specifically enumerated rights, that you would consider attempting to assert those rights as "devious." If you were just walking down the street, and an officer told you to stop where you were and submit to their questioning, if they could not provide RAS or PC, I suppose by your logic it would also be "devious thwarting" to tell them you do not consent and keep walking.

To be clear, obviously not all officers act in this manner. However, it should be clear to all officers that this type of behavior is questionable, and policies/laws tend not to just change on their own. Something has to effect change.
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Old July 7, 2013, 04:37 PM   #46
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Quote:
At a border control checkpoint what do you think happens if an officer motions you to stop? You must interact with them, and it just makes it easier on everyone if you are polite. If you don't have anything to hide, then just be civil. I am sick and tired of people not even wanting to talk to police officers because they "know their rights". If you are arrested then yes, keep your mouth shut. But if it is a checkpoint then roll down your window, speak to the officers, and be on your way.
Except the checkpoint itself violates your rights, so why talk to them at all? Here they need to say when and where they will be doing one, so all of the drunks go a different way; thus only the law-abiding are harassed..........sounds like the same situation lawful gun owners are treated versus the criminals
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Old July 7, 2013, 05:04 PM   #47
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A few years back, I was stoped by one of Dallas' finest. That considerate Gentleman was equally as rude and blunt as the uniformed officer in the video.

After all was said and done, I mentioned that I hadn't been spoken to iin that fashon since the early 60's. He chuckled and replied that an aggressive attitude displayed by the Officer helped to ptrvent roadside esclation. Everyone is then more likely to get home safely.

He then went about his business to 'protect and serve' and I went on about my business of getting to work.

Although I did then and do now understand the value of getting the early licks in, still it bothers me that my Mom and Bride could be treated in a like manner as SOP.

rant over,

salty

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Old July 7, 2013, 06:08 PM   #48
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Quote:
Originally Posted by sigcurious
And people conceal weapons illegally under their clothes, it doesn't automatically mean an order to lift one's shirt is lawful and constitutes a reasonable search barring any other evidence of wrong doing.
Sure we do, it's called a Terry frisk, and was found constitutional by the Supreme Court in Terry v Ohio (1968).
Quote:
Terry v. Ohio, 392 U.S. 1 (1968), was a landmark decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous.
All I need is a reasonable belief that a person is armed. That falls way below the articulable "probable cause" necessary to support a warrant. Now, if I reasonably believe that a person is armed, and I conduct a Terry frisk, that can open the door to other articulable observations that might lead to probable cause.
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Old July 7, 2013, 06:38 PM   #49
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No...you need RAS that they are committing, about to, or have committed a crime. Absent of specific state/local law that would make being armed/accidental revealing a crime, being armed in itself is not cause to conduct a detention and search (aka terry stop). That's vastly different than, just approaching someone, detaining them and searching them. Someone just walking down the street absent of those factors, is not free game for a terry stop.

If you actually read Terry, what made the detention and search reasonable was that the officer involved, noted distinctly suspicious behavior, specifically what amounted to casing the building, and was able to articulate based on that they there was suspicion of crime afoot. The terry decision is not "and or" being armed...its that based on suspicion of a crime, while the officer initiates a detention while investigating the possible crime, they may conduct cursory search for officer safety.

So again: No, an order to lift your shirt, barring any other evidence of wrong doing is not automatically a lawful order.
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Old July 7, 2013, 06:53 PM   #50
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Quote:
If you actually read Terry, what made the detention and search reasonable was that the officer involved, noted distinctly suspicious behavior, specifically what amounted to casing the building, and was able to articulate based on that they there was suspicion of crime afoot.
I've read Terry (stem to stern) many times. If I can articulate a reasonable suspicion of criminal conduct, and if I can articulate a reasonable belief that the person is armed, I can conduct a Terry frisk. The question becomes, can I articulate reasonable suspicion? Sure I can, in those instances where I conduct the frisk.

I'm one of the most laid-back cops you've ever met. Easy to get along with, don't like hassling people, and I live in a VERY gun-friendly state. So, can I articulate? You betcha. I can articulate.
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