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Discussion Starter · #1 ·
You may find today's reading assignment here. When you are finished, please discuss whether the method of the arrest and search is deemed appropriate.
 

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Sledgehammer
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The court ruled that the arrest and search were improper.

It is not clear from the opinion whether the "persons" performing the search and arrest were LEOs, but the court said they were not authorized to serve warrants, nor make arrests, nor conduct searches. Therefore, one can properly infer that they were not LEOs.

I submit that citizens conducting searches at gun point, when such citizens are not acting in concert with the police, are not subject to 4th Amendment limitations. While their conduct was probably itself illegal, I don't believe the evidence they gathered during their crime need have been excluded. But, it was excluded, and the state has no right to appeal. So, under the circumstances of that case, the reversal was appropriate.
 

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Discussion Starter · #3 ·
jrm said:
It is not clear from the opinion whether the "persons" performing the search and arrest were LEOs . . .
No, but I bet they were white.
 

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Discussion Starter · #4 ·
jrm said:
. . . conducting searches at gun point
" . . . at the point of a shotgun (with which the witness had just killed another *****),"

:shock:
 

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Discussion Starter · #5 ·
Does anybody get the feeling that the testimony about the sale of the pistol was contrived?
 

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Actually I disagree. on the grounds that citizens have the same arrest and detention powers that LEO have, with the exception of traffic violations and warrants. Not sure if this was the case in 1914.

The only liability that the citizens would be subject to would be during civil proceeding, which POST certified LEOs are exempt from. However the court did rule correctly when it said that ownership of a firearm is not the same as carrying one and just because the jailer was sold one by the defendant, could not be construed as carrying it. But based on the cited testimony it is correct to rule it as insufficient to convict.

Basically the search and discovery of the weapon was ruled as inadmissible, so the only thing that the prosecution had to go on was the testimony of the jailer, which could not stand on it's own and warrant a guilty conviction for Carrying a Pistol without having obtained the license required by law.

If the search and detention of the two men were allowed to stand then the conviction would stand as well.

Now if the laws in 1914 regarding citizens arrest are the same as they are now, then the court erred in throwing out the evidence.
 

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Sledgehammer
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Slabertooch,

What are you disagreeing with?

Citizens can make arrests, and probably could then (I don't know), but I don't think that was the source of the (trial) court's error. Based on the facts given, the search conducted by the citizens was illegal (conducted at gun point without justification). But, illegally retrieved evidence is not inadmissible (under the 4th Amendment) if it was not the government that did the retrieval. If I break into your house and discover your cocaine stash, and I seize it and turn it over to the police, you are not going to be able to get that evidence suppressed on the grounds that it was illegally obtained. You can sue me for trespass if you like, and you can have me prosecuted for burglary, but you are SOL on the drug charge.

As a general matter, an illegal arrest also will not overturn a conviction. For example, LEOs cannot arrest you in your home without a warrant (generally). If they do, though, the illegal arrest will not prevent prosecution for whatever you are charged with. But, if they gather evidence in your home in a search incident to the arrest, that evidence should be suppressed as the fruit of an illegal arrest.

So, it doesn't really matter if the citizens arrested the guy legally or not. What matters is whether the evidence was obtained legally, and, if it was not obtained legally, whether the proper rememdy is suppression. In this case, the evidence appears to have been obtained illegally (the citizens essentially robbed the guy). But, the illegally obtained evidence should not be suppressed because the governement was not involved in the search.
 

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Discussion Starter · #8 ·
Was there an exclusionary rule from the Fourth Amendment applicable to Georgia in 1914, jrm?

:lol:
 

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Sledgehammer
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Don't think so, but it doesn't matter. As I've said, the evidence should not have been excluded.

But, because the state cannot appeal, the conviction was properly reversed.
 

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My bad, a misread of your post, I was under the impression that you were stating that citizens do not have the power to arrest. thats what I get for multitasking.
If I break into your house and discover your cocaine stash, and I seize it and turn it over to the police, you are not going to be able to get that evidence suppressed on the grounds that it was illegally obtained. You can sue me for trespass if you like, and you can have me prosecuted for burglary, but you are SOL on the drug charge.
I did not know this until today, wow. I did some research and it astounds me that this is the case.

A good example is this

But with the drug charge, all I would have to say is that "It's yours" the burden of proof is with the prosecutor. It would be different however if you broke into my house on suspicion of drug activity and found drugs, and reported their location to the police. Then there would be a chain of evidence that could possibly stand up in court, however I could also use as a defense, that you planted the drugs, you did after all break into my house.
 

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In addition I propose a thought.
Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The 4th amendment (and all others) enumerates the right of the people. These rights cannot be violated by the government, or , in my opinion, other persons.

Just as the govt cannot restrict you right to free speech, peaceable assembly, vote, bear arms, etc et. neither can I. I do have a say over what happens when my rights are involved ie. when you are on my personal or private property, life and liberty, but the Bill of Rights is for the people. It is not just a restriction on the govt but also on other persons.

So I would say that the 4th Amendment would apply even in this case. It might be a stretch, but it would be something that I would argue.
 

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Sledgehammer
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Slabertooch, I understand the compelling nature of your argument, but the bills of rights never has been applied to private action. It is viewed as a limitation on the power of government, by guaranteeing certain rights. If I am not clothed with the power of government, anything I do that infringes on your rights is criminal matter, or a civil matter between you and me, or both.

Given the mountain of precedent that applies the bill of rights to government only, I don't think you'd get very far with your argument.
 

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Agreed, some common sense needs to be applied, which is why a said in my opinion.

I cannot bring criminal charges against anyone, that is reserved by the state. The extend of my legal powers is in the civil system, I can however file charges alleging criminal conduct, after which it is reviewed by the prosecutor who makes the determination if the state will attempt legal recourse.
 

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Discussion Starter · #14 ·
Malum Prohibitum said:
jrm said:
. . . conducting searches at gun point
" . . . at the point of a shotgun (with which the witness had just killed another *****),"

:shock:
I would like to read a transcript of the testimony in this case.
 

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Thats what I was looking for earlier, would be nice to have more information.
 

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Discussion Starter · #16 ·
I doubt the courthouse keep them that long.
 

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Romans 10:13
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That was my first question. Where the "persons" LEO's?
 
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