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Old 04-19-2018, 06:05 PM
Quartz Quartz is online now
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THe US Supreme Court as an enabler of police racism

I stumbled across this article and thought it might interest Dopers.

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The Fourth Amendment secures the citizen against any unreasonable search or seizure of their person or property. But what is "reasonable"? Before Terry, the reasonableness of a police officer's seizure or search was defined by the magistrate's authority to issue a warrant on a showing of probable cause.

Terry redefined "reasonableness" in more subjective terms. Before 1968, police officers operated, at least in theory, with reference to the magistrate's authority. Ever since Terry, police officers have had the despotic discretion to search or seize any US citizen based on a "reasonable suspicion" that they are a criminal or are about to commit a crime.
I'm not sufficiently knowledgeable to make any judgement but the article does seem to hold water.
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Old 04-20-2018, 02:18 PM
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IANAL but I was an LEO for 25+ years. Probable cause is a fairly high standard. If cops have probable cause to believe that you have committed a crime they have enough to arrest you. If they have PC to believe that you possess evidence of a crime they have enough to search you. Normally, both of these require a warrant. Getting a warrant is a time consuming process and isn't always practical. I believe that Terry recognizes that there are times when police may need detain you without enough evidence to arrest you. The standard is "reasonable suspicion". Say a bank robbery is reported. The cops show up and a guy comes running out of the bank carrying a briefcase. Is there PC to arrest at this point? Nope. Is it reasonable to suspect that he may be involved and should be detained (seized) until this can be determined? Sure. To require that PC exist before someone could be detained (for a reasonable length of time) for investigation would have foreseeable negative consequences for society.

Terry does not allow police to search someone without a warrant. It allows a "frisk" or "pat down" for weapons only. Before officers can conduct a frisk they must have a reasonable articulable suspicion that the person may be armed and dangerous. Legally, they cannot empty pockets or check undergarments. As a matter of practice, many (most?) cops will pat down anyone who they have the slightest suspicion about. ("better safe than sorry" theory) If they don't turn up any weapons, no harm - no foul and no one is likely to complain about this very limited intrusion, assuming the rest of the interaction is professional. Also, I bet that most people don't realize the requirements for a Terry frisk and just accept the pat down. After all, they've seen it on TV a million times. The remedy for this violation of civil rights would be to make a formal complaint or sue and who wants to go through all that? If they do find a gun, they will have to come up with a basis for the frisk. It is easy to conjure up reasonable suspicion after the fact but I think this will become less prevalent with the use of body cameras. Frankly, I don't see how NYPD got away with stop and frisk for so long. I wonder how many of those encounters were documented with the basis of the reasonable suspicion detailed. Given the very few weapons recovered in these encounters, the old "based on my training and experience" line would lose most, if not all, of it's credibility.

The reasonableness of the officers' actions is still, ultimately, determined by judge if it is challenged by an accused at a hearing. Any search without a warrant is presumed to be bad and the state must show why it fit one of the warrant requirement exceptions. Since most of these pat downs don't result in arrest, few see a courtroom. If "walking while black" pat downs are commonplace, the officers need to be called on it. The law is fine but it must be followed.

Last edited by MikeF; 04-20-2018 at 02:21 PM.
  #3  
Old 04-20-2018, 02:23 PM
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Originally Posted by MikeF View Post
Terry does not allow police to search someone without a warrant. It allows a "frisk" or "pat down" for weapons only. Before officers can conduct a frisk they must have a reasonable articulable suspicion that the person may be armed and dangerous. Legally, they cannot empty pockets or check undergarments.
Are you sure this is true? There are videos abound that show cops emptying pockets and performing road-side anal cavity searches.
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Old 04-20-2018, 04:39 PM
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Originally Posted by MikeF View Post
The standard is "reasonable suspicion".
Yes, but the article argues that 'being black' is being used as reasonable suspicion. Which is wrong.
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Old 04-22-2018, 10:41 AM
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Originally Posted by manson1972 View Post
Are you sure this is true? There are videos abound that show cops emptying pockets and performing road-side anal cavity searches.
There are Terry pat downs and probable cause searches.
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Old 04-22-2018, 10:45 AM
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There are Terry pat downs and probable cause searches.
If they do a terry pat down, and find drugs or other forms of non-weapon related contraband, is that admissible?
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Old 04-22-2018, 01:52 PM
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If they do a terry pat down, and find drugs or other forms of non-weapon related contraband, is that admissible?
Of course it is. If the pat down was done in accordance with the Terry decision. Terry is a legal intrusion why wouldnít what was found admissible? Now if a judge decides the situation did not meet the criteria for a pat down or if the pat down what beyond the scope of Terry then the evidence would be thrown out.
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Old 04-22-2018, 02:09 PM
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Of course it is. If the pat down was done in accordance with the Terry decision. Terry is a legal intrusion why wouldn’t what was found admissible? Now if a judge decides the situation did not meet the criteria for a pat down or if the pat down what beyond the scope of Terry then the evidence would be thrown out.
IANAL. But, it does seem as though the excuse to search someone without a warrant under the pretext that you are just being safe and checking for weapons short circuits due process a bit.

MikeF specifically said
Quote:
Terry does not allow police to search someone without a warrant. It allows a "frisk" or "pat down" for weapons only. Before officers can conduct a frisk they must have a reasonable articulable suspicion that the person may be armed and dangerous. Legally, they cannot empty pockets or check undergarments. As a matter of practice, many (most?) cops will pat down anyone who they have the slightest suspicion about. ("better safe than sorry" theory) If they don't turn up any weapons, no harm - no foul and no one is likely to complain about this very limited intrusion,
So, my question on that is, they turn up no weapon, but they do turn up a non-weapon related contraband item. If you give them permission to search everyone on the pretense that they may be armed, then why do we even bother paying lip service to any sort of probable cause?

Last edited by k9bfriender; 04-22-2018 at 02:10 PM.
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Old 04-22-2018, 06:10 PM
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Originally Posted by k9bfriender View Post
IANAL. But, it does seem as though the excuse to search someone without a warrant under the pretext that you are just being safe and checking for weapons short circuits due process a bit.

MikeF specifically said


So, my question on that is, they turn up no weapon, but they do turn up a non-weapon related contraband item. If you give them permission to search everyone on the pretense that they may be armed, then why do we even bother paying lip service to any sort of probable cause?
Youíve made up your mind so go ahead and run with it I donít join in on those types of discussions.
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Old 04-22-2018, 06:33 PM
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Quote:
Originally Posted by k9bfriender View Post
So, my question on that is, they turn up no weapon, but they do turn up a non-weapon related contraband item. If you give them permission to search everyone on the pretense that they may be armed, then why do we even bother paying lip service to any sort of probable cause?
Its not permission to search everyone - that's where you've mistaken the fact pattern.
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Old 04-22-2018, 07:01 PM
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Originally Posted by Quartz View Post
Yes, but the article argues that 'being black' is being used as reasonable suspicion. Which is wrong.
No, that's perfectly correct. New York's infamously racist "Stop and Frisk" program being a recent example, where the police obsessively searched black men over and over.
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Old 04-23-2018, 04:14 AM
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No, that's perfectly correct. New York's infamously racist "Stop and Frisk" program being a recent example, where the police obsessively searched black men over and over.
You misunderstand me: I'm saying that it's morally wrong, not that the article is wrong.
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Old 04-23-2018, 03:53 PM
Shodan Shodan is offline
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A Terry stop is where the police briefly detain you, based on a reasonable, articulable suspicion that you are or have been involved in a crime. ("Briefly" is not specifically defined.) He can pat you down for weapons, but not search you otherwise. You do not have to answer any questions, and he cannot arrest you without probable cause. Is that what you believe is morally wrong?

Certainly it can be abused, but when it is not so abused...?

I had a quick read thru the article, and the suggestion that Terry made it a crime to "Walk While Black", and that
Quote:
Terry effectively criminalized walking while Black and driving while Black -- and pretty much doing anything while Black in the US
seems more to have been asserted rather than demonstrated. The example in the article is of a black man being stopped because he matched (more or less) the description of someone the police had received a complaint about.

That is not the same thing as being arrested for Walking While Black.

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Old 04-24-2018, 10:13 AM
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Quote:
Originally Posted by Quartz View Post
I stumbled across this article and thought it might interest Dopers.

I'm not sufficiently knowledgeable to make any judgement but the article does seem to hold water.
It doesn't. The author has a quite racist agenda she is pursuing, and mixes that with a painful lack of understanding of the Terry v. Ohio case.
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Old 04-24-2018, 10:20 AM
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Originally Posted by Shodan View Post
A Terry stop is where the police briefly detain you, based on a reasonable, articulable suspicion that you are or have been involved in a crime
What do the police need in order to perform a road-side anal cavity search?
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Old 04-24-2018, 10:23 AM
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The article is an editorial, not a fact based reporting.
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Old 04-24-2018, 10:31 AM
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Originally Posted by manson1972 View Post
What do the police need in order to perform a road-side anal cavity search?
Hopefully, gloves.
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Old 04-24-2018, 10:50 AM
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From the article "How many African American males have traveled through University Circle and were stopped while walking [while] Black and were given misdemeanors?"

I don't understand. What misdemeanor are they being charged with? Is the guy saying that these men were involved in no criminal activity whatsoever and were arrested and convicted of being black in the first degree?


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Old 04-24-2018, 11:24 AM
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Originally Posted by manson1972 View Post
What do the police need in order to perform a road-side anal cavity search?
At least buy me a drink first.

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Old 04-24-2018, 12:03 PM
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Jesus - gloves, drinks, who knows what else. I'm beginning to rethink my strategy of become a cop for dating purposes.
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Old 04-24-2018, 12:16 PM
Tired and Cranky Tired and Cranky is offline
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Quote:
Originally Posted by Loach View Post
There are Terry pat downs and probable cause searches.
I understand the legal distinction here but to the person being patted down by the side of the road, the difference between "pat down" and "search" is semantics. The guy getting frisked on the sidewalk is being searched under all normal meanings of that word.

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Its not permission to search everyone - that's where you've mistaken the fact pattern.
If the police had permission to search everyone, they could arbitrarily stop anyone they wanted for any reason and search them. If something illegal were found, the person would go to jail. If nothing were found, the person would not be compensated for the lost time or the indignity of being searched. The officer who needlessly stopped the person would face no adverse consequences.

This pretty closely describes the situation we have today. The description ignores some of the theoretical limits on the police's ability to search whoever they want in public but those limits are inconsequential. This article is a great summary of how police can stop and frisk essentially anyone, and it shows how the burden of arbitrary detention and search falls predominantly on minorities who live in "high crime" neighborhoods.

https://www.repository.law.indiana.e...00&context=ilj

There is also a great list of the profile factors that in various cases supported reasonable suspicion to stop someone coming off an airplane because police believed they were drug couriers. They included factors like:
  • Being first to deplane
  • being the last to deplane, or
  • deplaning at a time somewhere in between.
  • Purchasing one-way tickets, or
  • purchasing round-trip tickets.
  • Taking nonstop flights, or
  • changing planes.
  • Carrying no luggage
  • carrying new suitcases, or
  • carrying a gym bag.
  • Traveling alone or
  • traveling with a companion.
  • Acting too calm or
  • acting too nervous.

https://scholarworks.law.ubalt.edu/c...893&context=lf

So, if you've ever taken any flight, police would definitely have at least three and probably five grounds to stop you as a potential drug courier. The problem is that the only people being stopped as potential drug couriers are Hispanic minorities.

The truth is, almost any excuse a police officer can make up will be accepted as reasonable suspicion. Any police officer who has been on the job for a year or two already knows a good working list of reasonable suspicion factors that will be accepted by the courts to justify a stop.

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Originally Posted by Clothahump View Post
It doesn't. The author has a quite racist agenda she is pursuing, and mixes that with a painful lack of understanding of the Terry v. Ohio case.
Pointing out racism in society so people can recognize the problem and do something about it is not racist. Monotonously calling people who are trying to address racism in society "racist" is racist since it only obstructs the end of racist policies.

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Originally Posted by manson1972 View Post
What do the police need in order to perform a road-side anal cavity search?
A warrant or the consent of the person being searched. In most cases, the court will credit the officer's testimony that he received consent even if the suspect denies that he or she consented.

If a police officer says to you, "You've got nothing to hide. You wouldn't mind if I searched you (or looked in your car)?" My suggestion is that you answer: "I do not consent to a search." Either "yes" or "no" to this question could be interpreted as consent.

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Originally Posted by drewder View Post
From the article "How many African American males have traveled through University Circle and were stopped while walking [while] Black and were given misdemeanors?"

I don't understand. What misdemeanor are they being charged with? Is the guy saying that these men were involved in no criminal activity whatsoever and were arrested and convicted of being black in the first degree?
I think what he is saying is that black males are disproportionately stopped for looking suspicious on campus (i.e., for "walking while black"), are disportionately frisked, and thus pick up misdemeanors for things like possession of marijuana. White people reportedly consume marijuana at the same rate as black people but black people are much more likely to be arrested for violations since the police do not stop and frisk white people at the same rates.

The same issue comes about when "driving while black." Police use pretextual stops to pull black people over for stupid reasons they wouldn't have hassled white drivers about, and then the black drivers are cited disproportionately for things like driving with a suspended license or driving with lapsed insurance.

It's also possible that black people who fail to provide a University ID are charged with something like trespassing. That was the allegation against the two people arrested while waiting for a business associate in a Starbucks in Philadelphia (https://www.usatoday.com/story/money...ans/526255002/). The racist part would be if black people are disproportionately stopped and asked to present a school ID or are disproportionately arrested for failing to produce one. White people without a student ID would rarely be asked for one, and if they fail to produce one, are unlikely to be charged with trespassing in any event.
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Old 04-24-2018, 12:38 PM
k9bfriender k9bfriender is online now
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Youíve made up your mind so go ahead and run with it I donít join in on those types of discussions.
Okay, thank you for admitting to your presumptiveness. I was actually asking a question and looking for information, as to how this actually plays out vs the legal theory that permits it, but since you have "read my mind" to tell me how it is made, then you obviously are not obligated in any way to be a part of a discussion in which you have already made up your mind as to the minds of others.

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Its not permission to search everyone - that's where you've mistaken the fact pattern.
Then who is excluded from terry stops?

ISTM, as though a cop can stop someone for whatever reason, they don't need PC to show that you are in any way connected to any crime, just that they have a "reasonable suspicion" that you may be connected to some sort of crime, which is easy enough to justify after the fact. They don't even have to be aware of, or even really have a reasonable suspicion that an actual crime has been committed, just that they think that you have committed one.

They cannot search you without probable cause, but they can pat you down, with just "reasonable suspicion", and anything found in that pat down is admissible. That's the part that doesn't make sense. It essentially allows searches with just reasonable suspicion, rather than probable cause.
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Old 04-24-2018, 01:08 PM
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Originally Posted by k9bfriender View Post
Then who is excluded from terry stops?

ISTM, as though a cop can stop someone for whatever reason, they don't need PC to show that you are in any way connected to any crime, just that they have a "reasonable suspicion" that you may be connected to some sort of crime, which is easy enough to justify after the fact. They don't even have to be aware of, or even really have a reasonable suspicion that an actual crime has been committed, just that they think that you have committed one.
It may seem that a cop can stop someone for whatever reason, but that's not true. People excluded from Terry searches are those that an officer does not have reasonable suspicion that they are involved in criminal activity. From the wiki:

Quote:
Originally Posted by wiki
To have reasonable suspicion that would justify a stop, police must be able to point to "specific and articulable facts" that would indicate to a reasonable police officer that the person stopped is or is about to be engaged in criminal activity, as opposed to past conduct.[7][8] Reasonable suspicion depends on the "totality of the circumstances,"[9] and it can result from a combination of facts, each of which by itself innocuous.[10]
Reasonable suspicion must be more than an "inchoate and unparticularized suspicion or 'hunch". When you say easy enough to justify after the fact, you are saying the officer will lie somehow. If we are assuming lying then no standard is sufficient since the officer will simply lie - I don't think that's a fair assumption to make. So no, it is not permission to search everyone. "Am I being detained? Am I free to go?" Those questions will delineate between when someone is seized and subject to a Terry patdown and when an officer is simply asking questions they are free to do to anyone.



Quote:
They cannot search you without probable cause, but they can pat you down, with just "reasonable suspicion", and anything found in that pat down is admissible. That's the part that doesn't make sense. It essentially allows searches with just reasonable suspicion, rather than probable cause.
It allows a Terry search which is a pat down. It's not a full search. But you are correct, Terry allows pat down type searches on the basis of reasonable suspicion. A full search requires probable cause which is the same standard for arrest.
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Old 04-24-2018, 01:19 PM
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Originally Posted by Bone View Post
It allows a Terry search which is a pat down. It's not a full search. But you are correct, Terry allows pat down type searches on the basis of reasonable suspicion. A full search requires probable cause which is the same standard for arrest.
Can something that is found during a, uh, "Terry pat down" then provide probable cause?
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Old 04-24-2018, 01:29 PM
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Of course.
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Old 04-24-2018, 01:48 PM
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ok, thanks.
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Old 04-24-2018, 03:08 PM
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Quote:
Originally Posted by Bone View Post
It may seem that a cop can stop someone for whatever reason, but that's not true. People excluded from Terry searches are those that an officer does not have reasonable suspicion that they are involved in criminal activity. From the wiki:



Reasonable suspicion must be more than an "inchoate and unparticularized suspicion or 'hunch". When you say easy enough to justify after the fact, you are saying the officer will lie somehow. If we are assuming lying then no standard is sufficient since the officer will simply lie - I don't think that's a fair assumption to make.
There are different types of lies.

There are lies that we believe when we tell them.

There are lies that we make ourselves believe when we tell them.

There are lies that we know are untrue, but are unprovable.

And there are lies that are provable to be lies.

Most of the time I suspect a cop is lying is one of those first three, not the last. But the more latitude that they are given, the more stuff can move from the fourth to the third.

For instance, consider the difference between the statements, "I saw him with a gun in his hand." vs "I thought I saw him with a gun in his hand."

Either is grounds for a terry stop, but only the former is a fact that can be proven or disproven. That terry stops can be made on the latter is where the potential for abuse comes in, IMHO.

Now, as far as lying cops go, sure, if they are willing to lie, then you are screwed, but you may be lucky, and they may accidently leave their body cameras on while they are talking about planning on lying about having probable cause.

Same as when they plan evidence on you, or rape you. It's your word against theirs, and your word will never be believed against theirs, even if they have been caught lying before, unless somehow it managed to get on tape to contradict them. It's a small chance, but it's a chance.

Quote:

So no, it is not permission to search everyone. "Am I being detained? Am I free to go?" Those questions will delineate between when someone is seized and subject to a Terry patdown and when an officer is simply asking questions they are free to do to anyone.
It should be on the officers to inform those who they encounter of their rights, rather than it being an obligation of the citizen who is being accosted by law enforcement to know how to navigate the legal system during a time in which they may not be at their best academic performance.

The officer should be the one indicating what the status of the person they are interacting with, not having the citizen have to play a guessing game to try to find out what their status is.
Quote:

It allows a Terry search which is a pat down. It's not a full search. But you are correct, Terry allows pat down type searches on the basis of reasonable suspicion. A full search requires probable cause which is the same standard for arrest.
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Old 04-24-2018, 03:39 PM
Shodan Shodan is offline
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Originally Posted by k9bfriender View Post
It should be on the officers to inform those who they encounter of their rights, rather than it being an obligation of the citizen who is being accosted by law enforcement to know how to navigate the legal system during a time in which they may not be at their best academic performance.
They do when they arrest someone. They don't have to for a Terry stop.

I for one would not support legislation (or a court decision) that police have to inform you of your rights during a Terry stop. This would give up one of the major advantages that police and the rest of us have over criminals, which is that criminals are stupid. Criminals try to talk their way out of trouble, when usually it winds up that they talk themselves into it. That is to say, criminals are at their best academic performance when they get stopped by the police, because their best academic performance is not all that different from their worst.

Not having enough sense to keep your mouth shut is not a deprivation of your rights by anyone else. There comes a point at which it is a case of "you are an adult - if you choose to talk to the police and incriminate yourself, tough toenails. You should know better."
Quote:
Originally Posted by Ron White
I had the right to remain silent...but I didn't have the ability.
If the cop is patting you down for weapons and when he feels your pocket you say "those aren't my drugs" there is no help for you.

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Shodan
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Old 04-24-2018, 03:39 PM
Richard Parker Richard Parker is offline
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The Supreme Court has enabled police racism in a lot of ways. In the context of Terry, it is a combination of Terry's low standard and Whren. But Whren is the real culprit.

Because of the Supreme Court ruling in Whren, it is not a Fourth Amendment violation for the police to stop you because of your race so long as they provide some pretext. So they can explicitly and intentionally follow you because you are black and then when you fail to signal 30 ft. before a turn or you cross the street outside of a marked crosswalk, they are perfectly justified in stopping you--even if they would never stop white people for the same reason and they targeted you because you were black. Because the requirement for reasonable suspicion are so low, there is almost always reasonable suspicion to stop a given person at all time. In addition to those petty infractions, reasons upheld by courts include merely being in a high crime area. Fidgeting. Being too relaxed. Staring at an officer. Looking away from an officer. And so on.

The Court in Whren pointed to the ability to bring an Equal Protection suit. But that was disingenuous for multiple reasons. First, it would have no impact on the criminal proceeding and indeed may well be barred until the criminal proceeding is complete. Second, the Supreme Court has erected such high walls around such claims in McCleskey and Armstrong that it is a fool's errand. With the rare exception of municipal policies analyzed with million-dollar statistical studies, you generally have to prove what is in an individual officers head. Good luck with that.

In a non-racist system, racially motivated stops would be unreasonable and therefore a Fourth Amendment violation. And when police and prosecutors engage in racially disparate conduct after you control for legitimate explanations (such as differential crime rates), then it should not really matter what was in some individual officer's head. But that is, most emphatically, not our current system.

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Originally Posted by Shodan View Post
A Terry stop is where the police briefly detain you, based on a reasonable, articulable suspicion that you are or have been involved in a crime. ("Briefly" is not specifically defined.)
Briefly is loosely defined by the precedent, FWIW. It means the period of time reasonably required to conduct an investigation of the suspicion giving rise to the stop, or any reasonable suspicion or probable cause developed pursuant to that initial investigation.

Ergo, if you get stopped for a broken taillight and they call out the dogs just to see what they can sniff, that's a constitutional violation because the detention took longer than the reasonable investigation of the taillight.

Last edited by Richard Parker; 04-24-2018 at 03:40 PM.
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Old 04-24-2018, 04:31 PM
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They do when they arrest someone. They don't have to for a Terry stop.

I for one would not support legislation (or a court decision) that police have to inform you of your rights during a Terry stop. This would give up one of the major advantages that police and the rest of us have over criminals, which is that criminals are stupid. Criminals try to talk their way out of trouble, when usually it winds up that they talk themselves into it. That is to say, criminals are at their best academic performance when they get stopped by the police, because their best academic performance is not all that different from their worst.
Good method of ensuring that only those smart enough stay out of legal trouble. People who committed no crime at all have managed to talk themselves into trouble, not knowing their rights, or even worse, thinking that they knew their rights.

When the cop says, "You don't have anything to hide, so you won't mind if I search." and takes either a yes or a no as an affirmative consent, that's not them catching criminals, that's them fucking with the populace they are supposed to be protecting.

I disagree entirely that police should be allowed to abuse the people under their control simply because the people have a disadvantage that the cop not only knows the law better, but also is the one who will be believed in a disagreement over what was said, and ultimately has the ability to kill you on the slightest of pretexts.

I do not wish to live in a police state, the slight amount of safety that I may gain by allowing the cops to treat anyone they encounter as a hostile that needs to be locked up, even if they need to make up the pretense, is not worth it. Your mileage obviously varies.
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Not having enough sense to keep your mouth shut is not a deprivation of your rights by anyone else. There comes a point at which it is a case of "you are an adult - if you choose to talk to the police and incriminate yourself, tough toenails. You should know better." If the cop is patting you down for weapons and when he feels your pocket you say "those aren't my drugs" there is no help for you.
Lock up the stupid, those not smart enough to win in little word games. Great idea. Even better if we also target those demographics who are less desirable, right?
  #31  
Old 04-24-2018, 04:46 PM
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. . .I for one would not support legislation (or a court decision) that police have to inform you of your rights during a Terry stop. This would give up one of the major advantages that police and the rest of us have over criminals, which is that criminals are stupid. Criminals try to talk their way out of trouble, when usually it winds up that they talk themselves into it. That is to say, criminals are at their best academic performance when they get stopped by the police, because their best academic performance is not all that different from their worst.



Regards,
Shodan
This is where you and others go wrong. At this point in the encounter the cop is not dealing with a criminal, they are dealing with a civilian. and that civilian has certain rights and privileges that are not up for debate. Among those rights is freedom from search and seizure. And the right to not self incriminate.

You believe that cops should be given some leeway when dealing with criminals. I believe that the people they are dealing with are not criminals until such time as there is probable cause to believe they may be.

A civilian pulled over for a traffic violation is not a criminal, they have committed an administrative infraction. They are not under arrest. they are not suspected of a crime, there is no need to let them "talk themselves into trouble."

mc
  #32  
Old 04-24-2018, 05:11 PM
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The Supreme Court has enabled police racism in a lot of ways. In the context of Terry, it is a combination of Terry's low standard and Whren. But Whren is the real culprit.
Wait, do you think Whren was wrongly decided? I mean, if we have laws on the books that impose certain requirements on drivers, and they must be followed on penalty of a traffic violation, how else would the court have ruled?

I think if we don't think folks should be detained for minor traffic violations we need to eliminate those requirements. The vast plethora of potential violations practically invites uneven application.
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Old 04-24-2018, 07:21 PM
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Wait, do you think Whren was wrongly decided? I mean, if we have laws on the books that impose certain requirements on drivers, and they must be followed on penalty of a traffic violation, how else would the court have ruled?

I think if we don't think folks should be detained for minor traffic violations we need to eliminate those requirements. The vast plethora of potential violations practically invites uneven application.
Yes, Whren was wrongly decided, at least as applied to the question of whether it is a constitutional stop when the infraction is pretext for racial profiling. The ultimate test of a stop under the Fourth Amendment is whether a particular seizure of a person is reasonable. It is not reasonable to selectively enforce traffic violations for the purpose of racial profiling (or any other motive that is not constitutionally permissible in the absence of a Whren pretext).

A half-measure to fix Whren would be to abolish the kinds of traffic infractions that are never enforced except as pretext. But that would only eliminate part of the problem. The other big part of the problem is using broad categories of reasonable suspicion (presence in a high crime area, fidgeting, failure to fidget) as justification when the real justification is racial profiling or simply conducting a dragnet. That problem is only fixed if Whren is overturned.
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Old 04-24-2018, 07:40 PM
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To illustrate my point further, a nice quote from a Fifth Circuit decision identifying facts on which reasonable suspicion was upheld:

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Originally Posted by https://t.co/L9nQ8jWwQ3
  • The vehicle was suspiciously dirty and muddy,[6] or the vehicle was suspiciously squeaky-clean;[7]
  • the driver was suspiciously dirty, shabbily dressed and unkept,[8] or the driver was too clean;[9]
  • the vehicle was suspiciously traveling fast,[10] or was traveling suspiciously slow[11] (or even was traveling suspiciously at precisely the legal speed limit);
  • the [old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van][12] is the kind of vehicle typically used for smuggling aliens or drugs;
  • the driver would not make eye contact with the agent,[13] or the driver made eye contact too readily;
  • the driver appeared nervous[14] (or the driver even appeared too cool, calm, and collected);
  • the time of day [early morning, mid-morning, late afternoon, early evening, late evening, middle of the night] is when "they" tend to smuggle contraband or aliens;[15]
  • the vehicle was riding suspiciously low (overloaded),[16] or suspiciously high (equipped with heavy duty shocks and springs);[17]
  • the passengers were slumped suspiciously in their seats, presumably to avoid detection,[18] or the passengers were sitting suspiciously ramrod-erect;
  • [19] the vehicle suspiciously slowed when being overtaken by the patrol car traveling at a high rate of speed with its high-beam lights on,[20] or the vehicle suspiciously maintained its same speed and direction despite being overtaken by a patrol car traveling at a high speed with its high-beam lights on;[21]
  • and on and on ad nauseam
.
  #35  
Old 04-24-2018, 07:45 PM
Richard Parker Richard Parker is offline
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Here's another great commentary on how reasonable suspicion works in practice:

Quote:
Arrived late at night United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990).

Arrived early in the morning United States v. Reid, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); United States v. Millan, 912 F.2d 1014, 1017 (8th Cir.1990).

One of first to deplane United States v. Millan, 912 F.2d at 1015; United States v. Moore, 675 F.2d 802, 803 (6th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983).

One of last to deplane United States v. Mendenhall, 446 U.S. 544, 547 n. 1, 100 S.Ct. 1870, 1873 n. 1, 64 L.Ed.2d 497 (1980); United States v. Sterling, 909 F.2d 1078, 1079 (7th Cir.1990); United States v. White, 890 F.2d 1413, 1414 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990).

Deplaned in the middle United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (2d Cir.1980).

Used a one-way ticket United States v. Johnson, 910 F.2d 1506 (7th Cir.1990), cert. denied, 498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991); United States v. Colyer, 878 F.2d 469, 471 (D.C.Cir.1989); United States v. Sullivan, 625 F.2d 9, 12 (4th Cir.1980).

Used a round-trip ticket United States v. Craemer, 555 F.2d 594, 595 (6th Cir.1977).

Carried brand-new luggage United States v. Taylor, 917 F.2d at 1403; United States v. Sullivan, 625 F.2d at 12.

Carried a small gym bag United States v. Sanford, 658 F.2d 342, 343 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982).

Travelled alone United States v. White, 890 F.2d at 1415; United States v. Smith, 574 F.2d 882, 883 (6th Cir.1978).

Travelled with a companion United States v. Garcia, 905 F.2d 557, 559 (1st Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990); United States v. Fry, 622 F.2d 1218, 1219 (5th Cir.1980). Acted too nervous United States v. Montilla, 928 F.2d 583, 585 (2d Cir.1991); United States v. Cooke, 915 F.2d 250, 251 (6th Cir.1990).

Acted too calm United States v. McKines, 933 F.2d 1412 (8th Cir.1991); United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).

Wore expensive clothing and gold jewelry United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990).

Dressed in black corduroys, white pullover shirt, loafers without socks United States v. McKines, supra.

*500 Dressed in dark slacks, work shirt, and hat United States v. Taylor, 917 F.2d at 1403.

Dressed in brown leather aviator jacket, gold chain, hair down to shoulders United States v. Millan, 912 F.2d at 1015.

Dressed in loose-fitting sweatshirt and denim jacket United States v. Flowers, 909 F.2d 145, 146 (6th Cir.1990).

Walked rapidly through airport United States v. Millan, 912 F.2d at 1017; United States v. Rose, 889 F.2d 1490, 1491 (6th Cir.1989).

Walked aimlessly through airport United States v. Gomez-Norena, 908 F.2d 497, 497 (9th Cir.1990), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1991). Flew in to Washington National Airport on the LaGuardia Shuttle United States v. Powell, 886 F.2d 81, 82 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

Had a white handkerchief in his hand United States v. Garcia, 848 F.2d 58, 59 (4th Cir.), cert. denied, 488 U.S. 957, 109 S.Ct. 395, 102 L.Ed.2d 384 (1988).
  #36  
Old 04-24-2018, 08:44 PM
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Originally Posted by Richard Parker View Post
Yes, Whren was wrongly decided, at least as applied to the question of whether it is a constitutional stop when the infraction is pretext for racial profiling. The ultimate test of a stop under the Fourth Amendment is whether a particular seizure of a person is reasonable. It is not reasonable to selectively enforce traffic violations for the purpose of racial profiling (or any other motive that is not constitutionally permissible in the absence of a Whren pretext).

A half-measure to fix Whren would be to abolish the kinds of traffic infractions that are never enforced except as pretext. But that would only eliminate part of the problem. The other big part of the problem is using broad categories of reasonable suspicion (presence in a high crime area, fidgeting, failure to fidget) as justification when the real justification is racial profiling or simply conducting a dragnet. That problem is only fixed if Whren is overturned.
I certainly agree that it is not reasonable to selectively enforce for the purpose of racial profiling. I don't think that means that Whren was wrongly decided because in principle it should be permissible to conduct a vehicle stop for any violation. I think to square those would be to curtail the types of circumstances that would be qualifying under the reasonable suspicion standard. The items you identified are pretty crap reasons and id support drastically reducing what would count.

Personally I'm not sure if this standard or qualified immunity is worse for the average person. None of these seeming injustices will be corrected as long as qualified immunity squashes the challenges.
  #37  
Old 04-25-2018, 08:02 AM
Tired and Cranky Tired and Cranky is offline
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I certainly agree that it is not reasonable to selectively enforce for the purpose of racial profiling. I don't think that means that Whren was wrongly decided because in principle it should be permissible to conduct a vehicle stop for any violation. I think to square those would be to curtail the types of circumstances that would be qualifying under the reasonable suspicion standard. The items you identified are pretty crap reasons and id support drastically reducing what would count.

Personally I'm not sure if this standard or qualified immunity is worse for the average person. None of these seeming injustices will be corrected as long as qualified immunity squashes the challenges.
I agree that qualified immunity might be the bigger issue. People need to be able to get redress for government abuses of their civil rights.
  #38  
Old 04-25-2018, 08:14 AM
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This is where you and others go wrong. At this point in the encounter the cop is not dealing with a criminal, they are dealing with a civilian. and that civilian has certain rights and privileges that are not up for debate. Among those rights is freedom from search and seizure. And the right to not self incriminate.
The cops in a Terry stop are dealing with a suspect. Hence the reference to a reasonable, articulable suspicion that the person being stopped is or has been engaged in a crime.

A pat down for weapons isn't a search and seizure. And the right to not self-incriminate means that someone cannot be compelled to give evidence against himself. It does not mean that he cannot give such evidence voluntarily. If he is dumb enough to try to talk his way out of it, so much the worse for him and so much the better for the rest of society.
Quote:
You believe that cops should be given some leeway when dealing with criminals. I believe that the people they are dealing with are not criminals until such time as there is probable cause to believe they may be.
The presumption of innocence is a legal fiction, and only operable in a court of law, after a defendant has been charged with a criminal offense. Before that, he is a suspect. Again - reasonable, articulable suspicion.
Quote:
A civilian pulled over for a traffic violation is not a criminal, they have committed an administrative infraction. They are not under arrest. they are not suspected of a crime, there is no need to let them "talk themselves into trouble."

mc
I agree with the first part of this, but not with the last. If they want to talk themselves into trouble over some other offense, I would say let them.

If he gets pulled over for running a stop sign or something, and the cops asks "do you have any drugs or weapons on you?" and Mr. Stupidfelon says "yeah, there is some crack in my pocket, but it's not mine" I don't see a downside.

Regards,
Shodan
  #39  
Old 04-25-2018, 08:30 AM
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Racist cops with an agenda are going to find a way to stretch and even circumvent the law no matter what the laws are. Blaming the Supreme Court for the abuse of an otherwise perfectly good law makes no sense. That's like blaming a rape victim because making herself look attractive was a bad idea.
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  #40  
Old 04-25-2018, 08:50 AM
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The presumption of innocence is a legal fiction, and only operable in a court of law, after a defendant has been charged with a criminal offense. Before that, he is a suspect. Again - reasonable, articulable suspicion.
So, we're allowed to treat the suspect as a criminal, until he's charged with a crime, and then we have to stop? That doesn't make any sense. The presumption of innocence applies to the entire justice system, from the first contact with the police until the verdict is handed down.
Quote:
If he gets pulled over for running a stop sign or something, and the cops asks "do you have any drugs or weapons on you?" and Mr. Stupidfelon says "yeah, there is some crack in my pocket, but it's not mine" I don't see a downside.
But the point is, it's not just Mr. Stupidfelon we're dealing with. Sometimes completely law-abiding citizens (by which I mean that they genuinely haven't committed any crimes, not just that they're presumed innocent) manage to talk themselves into trouble with the police. Especially if, for some reason out of their control, they fall into a demographic which the police are predisposed to suspect of wrongdoing.
  #41  
Old 04-25-2018, 09:04 AM
Shodan Shodan is offline
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Originally Posted by Chronos View Post
So, we're allowed to treat the suspect as a criminal, until he's charged with a crime, and then we have to stop?
No, we're allowed to treat the suspect as a suspect until he is charged with a crime.
Quote:
That doesn't make any sense. The presumption of innocence applies to the entire justice system, from the first contact with the police until the verdict is handed down.
No, it doesn't. The police can make a Terry stop when they have reasonable, articulable suspicion that the person is or has been engaged in a crime. They can make an arrest based on probable cause.
Quote:
But the point is, it's not just Mr. Stupidfelon we're dealing with. Sometimes completely law-abiding citizens (by which I mean that they genuinely haven't committed any crimes, not just that they're presumed innocent) manage to talk themselves into trouble with the police.
Maybe some examples would help - how does someone genuinely innocent talk themselves into trouble with the police? And how specifically would the police presuming innocence help?

I assume you don't mean getting pulled over for a traffic stop, telling the cop it is OK if he searches the vehicle, and then they find crack behind the visor.

Regards,
Shodan
  #42  
Old 04-25-2018, 11:18 AM
k9bfriender k9bfriender is online now
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No, we're allowed to treat the suspect as a suspect until he is charged with a crime.
And yet, they are still supposed to be treated as if they are innocent, not guilty.
Quote:
No, it doesn't. The police can make a Terry stop when they have reasonable, articulable suspicion that the person is or has been engaged in a crime.
They can make a Terry stop when they claim to have reasonable suspicion that the person is involved in a crime.
Quote:
They can make an arrest based on probable cause.
Maybe some examples would help - how does someone genuinely innocent talk themselves into trouble with the police? And how specifically would the police presuming innocence help?
Here's one.
Quote:
I assume you don't mean getting pulled over for a traffic stop, telling the cop it is OK if he searches the vehicle, and then they find crack behind the visor.
No, more getting pulled over for whatever reason they decided to pull you over for, with the option of having the cop pressure/trick you into letting them search your vehicle, then they start an argument with you, that they end by putting you in handcuffs and charging you with resisting arrest, even though you at most broke a minor traffic law.

That's for more honest cops. I assume you do not deny that cops do in fact plant evidence on people, then get them convicted of a crime. Having the ability to just make up whatever reason they want to to justify the stop makes the dishonest cops job much easier as well.

Of course, you also have the cops that are just straight up criminals with badges, like Daniel Holtzclaw, who take advantage of the free lattitude that such advantages give them to intentionally abuse the people they are supposed to protect.
  #43  
Old 04-25-2018, 11:31 AM
Shodan Shodan is offline
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Originally Posted by k9bfriender View Post
And yet, they are still supposed to be treated as if they are innocent, not guilty.
No, they aren't. If they were going to be presumed innocent, the cops would never stop someone and never arrest someone. They are supposed to be treated as suspects - not innocents.
Quote:
Here's one.
Not a good example. Bland talked her way into being arrested by refusing a lawful order and assaulting a police officer. Under Texas law, police may arrest you for a traffic violation, at the officer's discretion. If you wanted her to be presumed innocent, her resisting arrest, assaulting an officer, and refusal to obey a lawful command certainly overcame that presumption.

Regards,
Shodan
  #44  
Old 04-25-2018, 11:56 AM
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The cops in a Terry stop are dealing with a suspect. Hence the reference to a reasonable, articulable suspicion that the person being stopped is or has been engaged in a crime.
. . .

Regards,
Shodan
I have to admit, I had an incomplete understanding of Terry. I had only ever heard of it in conjunction with "stop and frisk" and traffic stops. Apparently, it can apply to persons suspected of criminal activity as well.

It still feels like a grey area where a cop can use the pretense of a weapons patdown to search for evidence extra-legally. But I don't really know.

mc

Last edited by mikecurtis; 04-25-2018 at 11:57 AM.
  #45  
Old 04-25-2018, 12:06 PM
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No, they aren't. If they were going to be presumed innocent, the cops would never stop someone and never arrest someone. They are supposed to be treated as suspects - not innocents.
They are either innocent, or they are guilty. The law makes that a binary choice. So, are they treating suspects as if they were innocent, or as if they were guilty.

I would say the ideal would be that they are treated as if they are innocent until a court has looked at the facts of the case and made a determination.

But, you know, if the cop thinks that they are guilty, that's good enough, right?
Quote:
Not a good example. Bland talked her way into being arrested by refusing a lawful order and assaulting a police officer. Under Texas law, police may arrest you for a traffic violation, at the officer's discretion. If you wanted her to be presumed innocent, her resisting arrest, assaulting an officer, and refusal to obey a lawful command certainly overcame that presumption.
Your question was if they found contraband in the car. Was there any contraband in the car? No.

The cop took advantage of his superior knowledge of the law, combined with the fact that he was the one in total control over the situation to bully a nervous person who was innocent of any crime until he had something that he could charge her for.

Now, you said upthread that you don't mind that people that aren't smart enough to navigate the tricks that the cops throw at you get thrown in jail, but I really disagree that that is an appropriate way to treat a populace. Your mileage obviously varies.
  #46  
Old 04-25-2018, 12:08 PM
k9bfriender k9bfriender is online now
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I have to admit, I had an incomplete understanding of Terry. I had only ever heard of it in conjunction with "stop and frisk" and traffic stops. Apparently, it can apply to persons suspected of criminal activity as well.

It still feels like a grey area where a cop can use the pretense of a weapons patdown to search for evidence extra-legally. But I don't really know.

mc
Or plant evidence, or bully you into doing something the cop can arrest you for, or use it as a pretense to put you in custody so that they can rape you.
  #47  
Old 04-25-2018, 12:58 PM
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Originally Posted by k9bfriender View Post
They are either innocent, or they are guilty. The law makes that a binary choice. So, are they treating suspects as if they were innocent, or as if they were guilty.

I would say the ideal would be that they are treated as if they are innocent until a court has looked at the facts of the case and made a determination.

But, you know, if the cop thinks that they are guilty, that's good enough, right?
Your formulation makes zero sense. First, the typical formulation is guilty or not guilty. Innocence is typically not part of the equation. Second, the binary choice doesn't exist until trial. Before that, there are varying levels of detention and seizure available. Third, why would a police officer conduct an arrest if they are treated as if they are innocent? The entire concept of presumption of innocence exists for the courtroom, not for the police when pursuing apprehension of suspects.
  #48  
Old 04-25-2018, 01:25 PM
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Originally Posted by k9bfriender View Post
They are either innocent, or they are guilty. The law makes that a binary choice. So, are they treating suspects as if they were innocent, or as if they were guilty.

I would say the ideal would be that they are treated as if they are innocent until a court has looked at the facts of the case and made a determination.

But, you know, if the cop thinks that they are guilty, that's good enough, right?
Nope , that's why we have a trial where the presumption of innocence applies. But it only applies to the trier of fact, that is, the judge or the jury. It doesn't apply to the prosecutor or to the police. And we don't want it to - because if the police officer doesn't believe someone is guilty we don't want her to arrest that person. Nor do we want the prosecutor to prosecute someone he doesn't believe is guilty.
  #49  
Old 04-25-2018, 02:06 PM
k9bfriender k9bfriender is online now
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Your formulation makes zero sense. First, the typical formulation is guilty or not guilty. Innocence is typically not part of the equation. Second, the binary choice doesn't exist until trial. Before that, there are varying levels of detention and seizure available. Third, why would a police officer conduct an arrest if they are treated as if they are innocent? The entire concept of presumption of innocence exists for the courtroom, not for the police when pursuing apprehension of suspects.
Because the police make the presumption that someone is guilty, they go ahead and treat them as guilty. There are people that the police will encounter that they suspect are guilty of something, but have actually done nothing wrong. Treating someone who has done nothing wrong as if they were guilty is a problem. It means that rights that they should have are ignored, it means that the police will bend the truth here and there to ensure that they get a conviction on the person that they "know" is guilty. It means that people who have done nothing wrong will be treated poorly by the police, who will then use any negative reaction that the citizen has towards being treated poorly as an excuse to abuse their power and call it refusing police instructions or resisting arrest.

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Nope , that's why we have a trial where the presumption of innocence applies. But it only applies to the trier of fact, that is, the judge or the jury. It doesn't apply to the prosecutor or to the police. And we don't want it to - because if the police officer doesn't believe someone is guilty we don't want her to arrest that person. Nor do we want the prosecutor to prosecute someone he doesn't believe is guilty.
So, if the police suspect someone of committing a capital crime, they can go ahead and execute them?

I am talking about how people are treated, not about how they are thought of. I don't care if you think I am guilty as sin, as long as you treat me as if that has not yet been proven, and give me a chance to give my side of the story before I am subject to mistreatment by the police.
  #50  
Old 04-25-2018, 02:19 PM
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Originally Posted by k9bfriender View Post
Because the police make the presumption that someone is guilty, they go ahead and treat them as guilty.
Yes. Police will handcuff a person. Arrest them. Interrogate them. DAs will file charges against them. They will try to convince a jury that they are correct, etc. All of this is treating a person as if they are guilty.

The other side of the coin is that there are restrictions placed on what can be done so as to limit the potential for various abuses.

But police treating suspects as if they are guilty is expected.
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