For the benefit of those here, I will post what I posted about these cases over at THR, responding to oobray, who tried to set everybody straight.
Oobray wrote:
am glad to see all of you with the liberty of yourself and others in mind. But I would like to bring reality of the law in to this discussion.
It seems that the blame is being placed on the LEO's for doing thier job. Yes, maybe the DUI checkpoint is wrong on principal... so blame the politicians who wrote the law, and the judges who approved it. Not the LEO's for doing thier job.
Michigan State Police vs Sitz 1990 <-- roadblocks are constitutional and not a violation of 4th ammendment as long as every driver, or a defined pattern of drivers (i.e every third driver) are stopped.
As for those of you who believe the LEO's had no legal right to remove the young lad from his vehicle
Pennsylvania vs Mimms 1977 <--- states that "the fourth ammendment allows LEO's to order the driver to exit the vehicle without requiring any additional factual justification". THat is quoted from the supreme court document.
There has been talk that the officer driving the car was an illegal search and seizure. It was not illegal because the officer did not dislodge anything to look. This falls under the plain view doctrine of Arizona vs Hicks 1978
As far as siezure goes, it would be easy to explain that the officer established reasonable suspiscion to detain the young boy due to the ruling of Illinois vs Wardlow 2000 that states if a LEO has made a lawful stop (in this case that is true) and encounters "nervous or evasive" behavior he may detain that person. The young man was not nervous, however he was evasive.
Those of you who are saying that the young man was exercising his 5th ammendment right not to self incriminate. That applies only if you have been formally arrested. In this case, he was not, he was being detained for investigation. Any statement he made could have easily been thrown out in court because he was not read his rights. So you have no argument there. Also, Terry vs Ohio 1968 states that an LEO may make "reasonable inquiries" as to the person's conduct. "Where are you headed" is definately a "reasonable inquiry".
Now, I do not necessarily agree with some of these case laws, however they are laws. If you feel that these are a violation of the constitution than take that up with the legislators and courts, do NOT blame LEO's who put thier lives on the line everyday.
Now, for all the defense of the officers, I must say that if they truly said anything to the effect of "If you don't stop running your mouth we'll find a reason to arrest you". That is DEFINATELY out of line. However we can't hear that on the video and must take the young man's word for it. Knowing that he intentionaly went looking for a confrontation I would be hard pressed to believe it. There are bad cops out there, but I don't see anything wrong with what these particular cops did as far as legality goes. Sorry but if you are going to stand up for something, at least now you truly know the laws.
Oobray, if you are a lawyer, then you need to turn in your bar card. If you are not a lawyer, then you need to quit pretending.
You claim to have informed everybody so that they "truly know the laws."
Yeah.
Let us examine what you had to say.
As far as siezure goes, it would be easy to explain that the officer established reasonable suspiscion to detain the young boy due to the ruling of Illinois vs Wardlow 2000 that states if a LEO has made a lawful stop (in this case that is true) and encounters "nervous or evasive" behavior he may detain that person. The young man was not nervous, however he was evasive.
Illinois v. Wardlow involved a guy who
took off running in a drug area! What the court really said was that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion," not that nervous or evasive behavior on its own justifies
anything. It is one factor among many, but what you must forget is that it is one factor in determining what? Reasonable suspicion. Reasonable suspicion. Reasonable suspicion of what? Reasonable suspicion that a crime is being committed or is about to be committed. Reasonable suspicion means that one is "justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further." Yeah,
that's a quote from
Wardlow.
Pennsylvania vs Mimms 1977 <--- states that "the fourth ammendment allows LEO's to order the driver to exit the vehicle without requiring any additional factual justification". THat is quoted from the supreme court document.
This is in the context of a traffic stop, where one is not only suspected of a crime, but the officer witnessed a crime. You are already detained. the court's reasoning was that there is no real difference between detaining you in the seat of your car and detaining you outside the car.
"The police have already decided that the driver shall be breifly detained; the only question is whether he shall spend that period sitting in the driver's seat of his caror standing alongside it." Oh, yeah, that's a quote from
Mimms, too.
The
Mimms case is
not in the context of a DUI checkpoint, which courts uphold only if the level of seizure is de minimus - a check of the license and on your way. At DUI checkpoints, they can only detain you further if there is reasonable suspicion of a crime (DUI) from this very brief and minimal intrusion. And no, refusing to be interrogated or discuss one's personal life with the officer does not create "reasonable suspicion" of DUI.
Also, Terry vs Ohio 1968 states that an LEO may make "reasonable inquiries" as to the person's conduct. "Where are you headed" is definately a "reasonable inquiry".
As for Terry, it requires more than a "hunch" that there is criminal activity. Without reasonable suspicion - no "reasonable inquiries." At this particular DUI checkpoint, there is no suspicion of any wrongdoing, and therefore
reasonable inquiries are not necessary to dispel the officer's suspicions. What suspicions? Suspicions of what? Did you actually read any of these cases?
Michigan State Police vs Sitz 1990 <-- roadblocks are constitutional and not a violation of 4th ammendment as long as every driver, or a defined pattern of drivers (i.e every third driver) are stopped.
Well, you got this one generally right.:neener:
BUT you left out the context when you went on your wild ramapge with the other cases.
"It is important to recognize what our inquiry is about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint. . . . We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard."
That quote is the context. And what level of intrusion did they approve? Ordering people from their cars for being smart mouths or not answering questions about their personal travel plans? Um, no.
Remember, the suspicion has to be reasonable, and it has to be suspicion of a
crime, not suspicion that the officer does not like the driver's attitude.
:scrutiny:
