NC: Cops pepper spray black foster son of white family

[Eonwe]

@Morgenstern

The illegal behavior, as far as they knew, was an illegal breaking and entering. That was reported to them by a neighbor who witnessed it. They found the back door open while investigating, and you want them to go to the front door and knock?

Yes.

I think this is the wall that I keep butting up against (if that’s the right metaphor) with those I disagree with in this thread. A report of an unidentified person entering someone else’s house through a normal mode of access is not, in my opinion, any way a reasonable cause in and of itself to suspect an illegal breaking and entering. I think it’s fine to send cops to the scene, but they should assume that they are going to meet a person who is supposed to be there, and behave accordingly. Which involves knocking and being polite.

[Fallen]

For one example, this is MO (v. NC) law (just a quick check without regard to particular degrees, to incl. burglary) States tend to have similar statutory language; will check for NC later.

Trespass in the first degree.
569.140. 1. A person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.

2. A person does not commit the crime of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by:

(1) Actual communication to the actor; or

(2) Posting in a manner reasonably likely to come to the attention of intruders.

3. Trespass in the first degree is a class B misdemeanor.

(L. 1977 S.B. 60)
Effective 1-1-79

CROSS REFERENCES:

Streams and rivers, no civil liability for adjoining landowners, when, 258.200

(1984) Differentiates “burglary in the second degree” from trespass in the first degree. (Mo.App.) State v. Butler, 665 S.W.2d 41.

Posting of property against trespassers, purple paint used to mark streets and posts, requirements–entry on posted property is trespassing in first degree, penalty.
569.145. In addition to the posting of real property as set forth in section 569.140, the owner or lessee of any real property may post the property by placing identifying purple marks on trees or posts around the area to be posted. Each purple mark shall be:

(1) A vertical line of at least eight inches in length and the bottom of the mark shall be no less than three feet nor more than five feet high. Such marks shall be placed no more than one hundred feet apart and shall be readily visible to any person approaching the property; or

(2) A post capped or otherwise marked on at least its top two inches. The bottom of the cap or mark shall be not less than three feet but not more than five feet six inches high. Posts so marked shall be placed not more than thirty-six feet apart and shall be readily visible to any person approaching the property. Prior to applying a cap or mark which is visible from both sides of a fence shared by different property owners or lessees, all such owners or lessees shall concur in the decision to post their own property.

Property so posted is to be considered posted for all purposes, and any unauthorized entry upon the property is trespass in the first degree, and a class B misdemeanor.

(L. 1993 S.B. 84, A.L. 2009 S.B. 398)

**Trespass in the second degree. **
569.150. 1. A person commits the offense of trespass in the second degree if he enters unlawfully upon real property of another. This is an offense of absolute liability.

2. Trespass in the second degree is an infraction.
   (L. 1977 S.B. 60)
   Effective 1-1-79

CROSS REFERENCE:

Streams and rivers, no civil liability for adjoining landowners, when, 258.200
Trespass of a school bus, penalty–schools to establish student behavior policy, when.
569.155. 1. A person commits the crime of trespass of a school bus if he knowingly and unlawfully enters any part of or unlawfully operates any school bus.

2. Trespass of a school bus is a class A misdemeanor.

3. For the purposes of this section, the terms “unlawfully enters” and “unlawfully operates” refer to any entry or operation of a school bus which is not:

(1) Approved of and established in a school district’s written policy on access to school buses; or

(2) Authorized by specific written approval of the school board.

4. In order to preserve the public order, any district which adopts the policies described in subsection 3 of this section shall establish and enforce a student behavior policy for students on school buses.
   (L. 2000 S.B. 944)
   Burglary in the first degree.
   569.160. 1. A person commits the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:

(1) Is armed with explosives or a deadly weapon or;

(2) Causes or threatens immediate physical injury to any person who is not a participant in the crime; or

(3) There is present in the structure another person who is not a participant in the crime.

2. Burglary in the first degree is a class B felony.
   (L. 1977 S.B. 60)
   Effective 1-1-79

Burglary in the second degree.
569.170. 1. A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.

2. Burglary in the second degree is a class C felony.
   (L. 1977 S.B. 60)
   Effective 1-1-79
   Possession of burglar’s tools.
   569.180. 1. A person commits the crime of possession of burglar’s tools if he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, with a purpose to use or knowledge that some person has the purpose of using the same in making an unlawful forcible entry into a building or inhabitable structure or a room thereof.
3. Possession of burglar’s tools is a class D felony.

http://www.moga.mo.gov/statutes/C569.HTM

[you_with_the_face]

@Terr

Correct. And it was not against the law. See http://le.alcoda.org/publications/point_of_view/files/police_trespassing.pdf - page 11.

According to the cops’ own report, the entered the home *before *announcing themselves. Which means they didn’t even try to establish whether the home was occupied by its owners before they trespassed.

They have no basis to say this was necessary.

[Eonwe]

@Left_Hand_of_Dorkness

I didn’t miss it, I explained it. I think Eonwe knows it’s on a continuum, and is placing “burglary” toward the “breaking into the house” end of the spectrum, with “suspected burglary” toward the “walked into the house through the unlocked door” end.

Yeah. My bad if I was or am still unclear. I think that had the neighbors witnessed someone breaking in, then it would be very reasonable to call it a suspected burglary/trespass or whatever. Just seeing a stranger (to the neighbors) enter the house does not qualify, in my mind as much if any evidence of criminal activity.

[Steophan]

@YogSosoth

As I’ve said, they should have treated him like a human, a misunderstanding, and detained him until they could make a positive ID but without escalating it. If he was right, they should have reasoned, he has a good reason to be angry and agitated. Take that into account and let him blow off a little steam.

That is precisely what they did.

@ElvisL1ves

Then they *assaulted *an unarmed person who was doing nothing more than *yelling *at them.

False on both accounts. They didn’t assault him, and he was doing more than yelling.

@Eonwe

There was no evidence of criminal activity. Just a person the neighbors don’t recognize entering the house through normal channels.

You have contradicted yourself here. That is the evidence that allowed them to enter, and then his actions added further evidence.

@you_with_the_face

They were not invited into the house and they refused to leave when they were asked to leave.

Good for them. I’d hope if my neighbours ever call the police about a suspected burglary at my place they’d do the same. The police don’t take orders from suspected criminals, for fuck’s sake.

[Morgenstern]

@Left_Hand_of_Dorkness

I didn’t miss it, I explained it. I think Eonwe knows it’s on a continuum, and is placing “burglary” toward the “breaking into the house” end of the spectrum, with “suspected burglary” toward the “walked into the house through the unlocked door” end.

So, if he wears a lone ranger mask, black clothes, black beanie, and walks on his tip toes, then can we call him a burglar?

[Eonwe]

@Morgenstern

So, if he wears a lone ranger mask, black clothes, black beanie, and walks on his tip toes, then can we call him a burglar?

Is it Halloween?

[you_with_the_face]

@Morgenstern

The illegal behavior, as far as they knew, was an illegal breaking and entering. That was reported to them by a neighbor who witnessed it. They found the back door open while investigating, and you want them to go to the front door and knock?

Yes. Wouldn’t you want that if cops were summoned to your house mistakenly?

Or would you welcome them in open arms if they let themselves in through your garage, with guns raised and demands that you explain your existence?

[Terr]

@you_with_the_face

According to the cops’ own report, the entered the home *before *announcing themselves. Which means they didn’t even try to establish whether the home was occupied by its owners before they trespassed.

They have no basis to say this was necessary.

I think they definitely do. Would you like to make a wager on whether they will be indicted for trespassing?

[Fallen]

North Carolina General Statutes § 14-54 Breaking or entering buildings...

North Carolina General Statutes § 14-54 Breaking or entering buildings generally
Legal Research Home > North Carolina Lawyer

(a) Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.

(a1) Any person who breaks or enters any building with intent to terrorize or injure an occupant of the building is guilty of a Class H felony.

(b) Any person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor.

(c) As used in this section, “building” shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property. (1874-5, c. 166; 1879, c. 323; Code, s. 996; Rev., s. 3333; C.S., s. 4235; 1955, c. 1015; 1969, c. 543, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 26; 1994, Ex. Sess., c. 24, s. 14(c); 2013-95, s. 1.)

Sections: Previous 14-50.43 14-51 14-51.2 14-51.3 14-51.4 14-52 14-53 14-54 14-54.1 14-55 14-56 14-56.1 14-56.2 14-56.3 14-56.4 Next

Trespassing:

Article_22.pdf

http://www.onsdclub.com/files/documents/NC-Trespass-Laws.pdf

And just for future reference (without accounting for inaccuracies):

Trespassing Laws & Signs For All Fifty States | Signs.com

[Bone]

@Left_Hand_of_Dorkness

Here are those circumstances:
Assuming this link is accurate (I welcome correction if it’s not), I don’t see any reason for them to believe that a person or property is in imminent danger, or that harm would result in the time it would take to obtain a search warrant. Is there case law on similar circumstances?

Yes. Here is an article from the Alameda County District Attorney’s office. There are lots of citations about exigent circumstances. Here is one:

BURGLARY IN PROGRESS: An emergency entry is
certainly appropriate if officers reasonably believed—
based on direct or circumstantial evidence—that the
premises were being burglarized. Thus, the Sixth
Circuit observed, “This and other circuits have held
that an officer may lawfully enter a residence without
a warrant under the exigent circumstances exception
when the officer reasonably believes a burglary is in
progress.” 79

79 references:

79 U.S. v. Brown (6th Cir. 2006) 449 F.3d 741, 748. Citations omitted. ALSO SEE U.S. v. Erickson (9th Cir. 1993) 991 F.2d 529, 533;
In re Sealed Case (D.C. Cir. 1998) 153 F.3d 759, 766; U.S. v. Tibolt (1st Cir. 1995) 72 F.3d 965, 970.

My hunch is that if there were strong evidence that it really were a burglar–and a black dude walking into a house that someone says white folks live in isn’t strong evidence of burglary–the police would be in the clear. But I don’t know. In any case, in this situation the police didn’t belong there; at best it was an honest mistake (and I don’t believe that “at best” except for the most generous possible interpretations of “honest”), and any policy change that results in police not running into houses, shouting and with weapons drawn, and frisking the residents of the house then handcuffing them and pepper-spraying them, are bound to be improvements on the current system.

It’s important to separate the entry into the house with the pepper spraying. Once the legitimacy of the entry is established, they were justified in detaining the person they found there. Pepper spray or other means were only employed as a reaction to their lawful detention - according to the police.

[Fallen]

“That is precisely what they did.”

It’s best to avoid declarative statements like this without any qualification. “Allegedly” is a good qualifier, or “according to the police statements and/or police report”.

[Eonwe]

@Steophan

You have contradicted yourself here. That is the evidence that allowed them to enter, and then his actions added further evidence.

It’s not a contradiction. I don’t think that that is reasonable evidence for unannounced entry into a home. Maybe you disagree with me, but don’t pretend like I’m being contradictory just because you don’t agree with my analysis.

@Steophan

Good for them. I’d hope if my neighbours ever call the police about a suspected burglary at my place they’d do the same. The police don’t take orders from suspected criminals, for fuck’s sake.

You’re missing the point that those who disagree with you here do not think it’s reasonable for the foster child who lives in that house to have been identified as a suspected criminal. For fuck’s sake.

[you_with_the_face]

@Terr

This has nothing to do with warrants. The police did not conduct a search, and did not need a warrant. The question is whether they were trespassing. I addressed this one post above.

Of course they conducted a search! Do you not understand the words you’re using? They walked through the house looking for something. Dead bodies, maybe. Or a bag of apparently stolen possessions that could be thrown out the back window. They were looking for stuff to nab the kid on. That is a search.

[Bone]

@Eonwe

Yeah. My bad if I was or am still unclear. I think that had the neighbors witnessed someone breaking in, then it would be very reasonable to call it a suspected burglary/trespass or whatever. Just seeing a stranger (to the neighbors) enter the house does not qualify, in my mind as much if any evidence of criminal activity.

I think it depends then on the actual 911 call and what was reported to police who responded to the call. I’m not sure I put much stock in this distinction, and that almost goes right out the window when they find the door open.

[Morgenstern]

@you_with_the_face

Yes. Wouldn’t you want that if cops were summoned to your house mistakenly?

Or would you welcome them in open arms if they let themselves in through your garage, with guns raised and demands that you explain your existence?

First of all, I would accept that they were doing their job. I would comply with their orders, produce identification and sit when told to sit. Once they were satisfied that they had made a mistake, I’d politely ask them to leave. Thereafter, I’d decide whether or not I needed to discuss the matter with their supervisor. As I see it, my remedy, if any, exists after the fact, not during it.

[Terr]

@you_with_the_face

Of course they conducted a search! Do you not understand the words you’re using? They walked through the house looking for something. Dead bodies, maybe. Or a bag of apparently stolen possessions that could be thrown out the back window. They were looking for stuff to nab the kid on. That is a search.

They were checking the house to see if any more people were there. They did not collect any evidence. If there was any evidence collected, THEN the discussion of whether there was a warrant or not and whether a warrantless search was justified (and thus whether the evidence was admissible) would be relevant.

[Steophan]

@Eonwe

It’s not a contradiction. I don’t think that that is reasonable evidence for unannounced entry into a home. Maybe you disagree with me, but don’t pretend like I’m being contradictory just because you don’t agree with my analysis.

You’re missing the point that those who disagree with you here do not think it’s reasonable for the foster child who lives in that house to have been identified as a suspected criminal. For fuck’s sake.

What you think really doesn’t matter, it’s what the police and subsequently the courts think that does. If the police were in fact in the wrong here, the courts will find them so. Judging by how rarely that happens, it seems that the police are in the wrong a lot less than certain idiots here think they are.

What you are saying is that a report of a crime isn’t reason to investigate whether there’s a crime. That would limit the police to driving round hoping to spot illegal activity (something the anti-law brigade here regularly complain about them doing anyway) and make them next to useless.

If someone reports an unrecognised person going into a neighbour’s house, the police’s job is to find out who that person is, and if he belongs there. Whether it’s a black teen, the new owner, the local plumber who they’ve hired, or the second coming of christ, it doesn’t matter.

[Bone]

@Terr

They were checking the house to see if any more people were there. They did not collect any evidence. If there was any evidence collected, THEN the discussion of whether there was a warrant or not and whether a warrantless search was justified (and thus whether the evidence was admissible) would be relevant.

You got this mostly right, but a warrant would still be required for entry, not just to search. Unless there were exigent circumstances.

[Steophan]

@you_with_the_face

Of course they conducted a search! Do you not understand the words you’re using? They walked through the house looking for something. Dead bodies, maybe. Or a bag of apparently stolen possessions that could be thrown out the back window. They were looking for stuff to nab the kid on. That is a search.

No, it isn’t. They were looking for people. If they happen to see something in plain sight that is evidence of a crime, they can use that, but they can’t search for anything. Do you have any evidence that they did? Because there’s none in anything that’s been linked to from this thread.