American Flag flying upside down as signal of DISTRESS

This document goes hand in hand with the ongoing matter of the confiscation and possible destruction of the hand-gun belonging to James Smith. The North Caucus is deeply honored that Peter Mancus would allow us to present this document to the public via our web site.

Mancus' essay also provides the average "joe-blow" Patriot with an in depth view of just how easy it is for us to bend to the will of the police state, not knowing our own rights.

The 4th Amendment must be destroyed by the socialists if fire-arms are going to be first controlled, then confiscated. If you study the "Patriot Act," and all the other various property confiscations going on in this nation, including those of the environmental tyrants, you have to conclude that most of the machinery is in place to either confiscate all the fire-arms or start the revolution that will obviously result when people refuse to comply with the laws and have no other recourse but defending themselves against the thrusts of their governments.

Once again we see that the Bill of Rights is the warp and weft of our Republic, and that the rug will disintegrate if any of the warp or weft is damaged or removed.


IS THE FOURTH AMENDMENT SEXY?

by
Peter J. Mancus
© Peter J. Mancus 2002
Attorney at Law
Sebastopol, California
pmancus@prodigy.net

[Where the author used bold type, the editor was forced to use underlining, HTML coding for Courier not responding to the "bold" command]

Introduction.

  The Fourth Amendment to the U.S. Constitution uses the terms unreasonable and probable cause. For most reasonably constituted human beings, those terms are words and nothing but words. But for some abnormally constituted human beings, e.g., law students, lawyers, law professors, judges, policy makers, opinion elites, libertarians, Constitutionalists, control freaks, authoritarians, and tyrant wannabees, those words are beguiling, tantalizing, and elusive.

  The desire to discover, to understand, to see, to comprehend, to know, the true meaning of those words is analogous to the strong desire of a normal heterosexual male to see, and to savor, a pretty female’s bare breasts. But the blouse and bra that conceal the breasts-plus social inhibitions, respect for the female, and self-control, etc.-are material obstacles. And what is out-of-sight and unknown is indeed even more mesmerizing.

  While most people [perhaps the fortunate ones,] spend little or no time contemplating the Fourth Amendment, some [perhaps the damned ones,] spend an enormous amount of their adulthood studying those words: unreasonable and probable cause.

  The pursuit of that study is roughly analogous to unbuttoning the referenced blouse and unsnapping the bra’s snap, letting the bra’s strap fall and finally savoring that part of femininity which causes heterosexual males to intensely focus their attention.

  The Fourth Amendment might not be really sexy, but if you are any kind of a civic minded, concerned citizen, the more you know about the Fourth Amendment the better off you will be.

  The Fourth, the Second, the First-they all reenforce one another. They work best when they work together. But, in this nation, we do not have a true Bill of Rights culture. Example: The federal government has hundreds of well funded enforcement agencies. But there is not a single agency devoted exclusively to the enforcement of the U.S. Bill of Rights for the benefit of U.S. citizens. There are, however, many agencies which work incessantly to undermine the U.S. Bill of Rights-to redraw for civil authority’s convenience the lines stated therein that separate civil authority’s powers from citizen’s rights.

Rights on the printed pages of law books gathering dust on a shelf are meaningless. They remain eternally meaningless until one person, the proverbial David, as in the one who slammed a rock against Goliath’s skull, elects to exercise his or her rights, damn the consequences.

  Entire forests-tens of thousands of square miles-have given their life just so everyone from the fool to the pundit could write everything from turds to truffles about the Fourth Amendment. Multi-volume treatises thousands of pages long exists. The Law of Search and Seizure is dynamic, controversial, powerful, elastic, malleable, critical to your welfare and your future, whether you realize it or not.

  Does anyone care? Really care about the line that separates civil authority’s powers from citizen’s rights?

  I care! I hope you do, too! Down to your core bone marrow.

  Knowledge is power-or at least latent power waiting to be used for good or evil.

  I spent a substantial amount of time reading case law from various jurisdictions to try to write an interesting, useful, outline on some of the more common aspects of the Fourth Amendment. I humbly submit that anyone who invests the time to read and to digest the information contained herein will be much better armed-cerebrally-if and when they have an encounter with a badge heavy, abusive, government goon.

  So, what’s in it for you if you read this article? Knowledge! Power! Appreciation for this truth: If you are a U.S. citizen, you bear one of history’s greatest titles, namely, U.S. citizen ! If you are one of them, we would all be much better off if you actively, intensely, and persistently reclaimed your birthrights [or naturalization rights,] start throwing your political-legal weight around as a vital U.S. citizen, and start demanding that civil authority take your rights-and mine-seriously.

Disclaimer.

This article, at most, is merely a primer on the Fourth Amendment. It is one dirt clod thrown into the Grand Canyon of Fourth Amendment scholarship. It is merely a statement of selected points of law that have not been critically applied to the facts of anyone’s legal problem. This article does NOT create an attorney-client relationship between its author and anyone. It is intended only to be a helpful, limited discussion of the Fourth Amendment on a strict “for your information/use with discretion” basis.

  The legal authorities discussed herein are biased toward federal law and California state law. They are a random selection. They omit entire areas of concepts relevant to the Fourth Amendment. This article is not comprehensive. No effort has been made to make this article absolutely current nor to painstakingly double-check the accuracy of all citations.

  If you use this information, use it carefully-with this disclaimer in mind, and with the help of a competent, experienced attorney in your jurisdiction-at your own risk! Do your own research or hire excellent, competent, professional legal talent to do it for you. Always think-critically.

Explanation of Legal Citation.


  Most of the points of law stated below are summaries of various court decisions. To help readers understand the esoteric numbers and letters after many of these statements, I offer this brief explanation.

  The esoteric numbers and letters stated below are what is called “a case citation.” As an example, assume a case citation is simply this: 1 X 2, 3. The “1” refers to the volume number of the “reporter”-the set of books that “report” the case decisions. The “X” refers to the name of the reporter-which also indicates if you are dealing with a federal court or a state court and what level of court and the time frame of cases being reported. The “2” indicates the first page in that volume where that case decision begins. The “3” indicates the exact page where the quoted, or summarized, information can be found in that case.

  “U.S.” means “U.S. Supreme Court.”

  “F” or “F. Supp” means a “federal court.

  “Cal.”or “Cal.App.” means a California court.

  A “2d” or “3d” means the second or third “series,” which is simply an arbitrary renumbering by the publisher starting with zero in a new series to keep the numbers from getting too large.

  “Cal.” means the “California Supreme Court”-the highest California state appellate court.

  “Cal.App.” means an intermediate California appellate court-the one between the trial courts and the California Supreme Court.

* * *

1.
Exact Quote: Fourth Amendment

“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.” [Emphasis added.]

2.
Fourth Amendment “Fighting Issues”

  It is easy to agree on what the Fourth Amendment says. What it says is “law in the raw.” The key is: What does it mean? Pregnant within that issue is this issue: How shall it be construed [interpreted and applied]? Why?

  Eternal issues are:
  • What is the nature, scope, and limits, if any, of the right declared?
  • Who are included among the people who have this right?
  • What makes a search and/or seizure unreasonable as opposed to reasonable? Why?
  • Is shall not unequivocally and absolutely mandatory with no exceptions whatsoever? Why?

3.
Comparing Constitutional Bright Lines in the Second and Fourth Amendments

A Constitutional bright line is an intangible division between civil authority’s power and the peoples’ rights, drawn-and erected-with words, in the U.S. Constitution, including the amendments thereto.

  The Second Amendment’s bright line is probably the clearest, the most absolute, and the most uncompromising of all such bright lines, e.g., “. . . the right of the people to keep and bear arms, shall not be infringed.” This passage really contains two such bright lines, first, “the right of the people” and second, “shall not be infringed.” Individually, and together, it is difficult, if not impossible, to imagine how anyone, no matter how intelligent, literate, and/or well educated and clever, could formulate bright lines any brighter than “the right of the people” and “shall not be infringed.” “[S]hall” is mandatory-a clear, unequivocal, uncompromising, command. “[N]ot” is a clear, unequivocal, unambiguous, uncompromising, negative. “[I]nfringed” means no prior restraint as to anything as to time and/or place, regardless of pretext or rationale to impose any dilution, suspension, pre-condition, denial, cancellation, withholding, etc. of the right granted.

  The Fourth Amendment has the same “right of the people” bright line, but its other bright line-“against unreasonable searches and seizures, shall not be violated,” is nowhere near as bright or as uncompromising as “shall not be infringed.” This is because the right which “shall not be violated” is only “against unreasonable searches and seizures”.

  Reformulated, reasonable searches and seizures are Constitutional. The qualifier-“unreasonable”-was, and is, the Framers’ well reasoned attempt to draw a wise bright line that separates civil authority’s powers to promote security as opposed to the peoples’ right to be free of undue intrusion and to keep their private lives and property, etc., free from official scrutiny. Per its expressed terms, the person who decides whether a search or seizure is unreasonable or reasonable is, ideally, a judge.

4.
Fourth Amendment’s Core Essence

The core essence of the Fourth Amendment is reasonableness. Schnecklolth v. Bustamonte (1973) 412 U.S. 218

5.
What Fourth Amendment Governs

The Fourth Amendment “governs all intrusions by agents of the public upon personal security.” Terry v. Ohio (1968) 393 U.S. 1, 18.

  The Fourth Amendment’s requirement that searches and seizures be founded upon “an objective justification” “governs all seizures of the person,” “including seizures that involves only a brief detention short of traditional arrest.” U.S. v. Mendenhall (1980) 446 U.S. 544, 551.A property owner has a legitimate interest in maintaining the privacy of his personal privacy and in keeping the contents of same undisturbed by official intrusion. Mozzetti v. Superior Court (1971) 4 Cal.3d 699.

6.
Parameters of Constitutional Law Enforcement Search and Seizure

The scope of any law enforcement search “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio (1968) 393 U.S. 1, 19.

7.
When Fourth Amendment Protection is Triggered

The Fourth Amendment does come into play as a limitation upon police conduct before officers make a “technical arrest” or a “full-blown search.” Terry v. Ohio (1968) 393 U.S. 1, 19.

  All police “stop and frisk” conduct is within the Fourth Amendment’s purview. Terry v. Ohio (1968) 393 U.S. 1, 16.

  “[T]he Fourth Amendment governs ‘seizures’ of the person . . . .” Terry v. Ohio (1968) 393 U.S. 1, 16.

  “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. . . . [Such a seizure is not] a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, an it is not to be undertaken lightly.” Terry v. Ohio (1968) 393 U.S. 1, 16-17.

  “If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are implicated and he is entitled to the safeguards of the rules set forth above.” In re Tony C. (1978) 21 Cal.3d 888, 895. [Emphasis added.]

8.
Judge’s Duty

Make Independent Decision Regarding Existence of Probable Cause

  A judge who rules on the issue of probable cause “should make an independent and dispassionate judgment on the basis of common sense and in the light of all the circumstances presented as of the time of the event . . . [and] it “should keep firmly in mind the high purpose of the Fourth Amendment and remain ever vigilant to forestall any encroachment on its fundamental guarantees.” People v. Superior Court (1970) 3 Cal.3d 807, 828.

Condemn Law Enforcement Practices That Punish Those Who Dare Exercise Rights

  Courts must continually condemn any law enforcement practice which imposes adverse treatment on an individual who dares to exercise his or her constitutional rights intended to protect against such adversity. People v. Bower (1979) 24 Cal.3d 638, 648.

Keep Law Enforcement Under Control

  Judges must not let law enforcement officers enlarge a specific authorization to search, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will. Minnesota v. Dickerson (1993) 508 U.S. 366.

U.S. Supreme Court Opines on the Limits of Its Own Powers
  The U.S. Supreme Court is “not empowered to suspend constitutional guarantees so that the Government may more effectively wage a ‘war on drugs.’” Florida v. Bostick (1991) 501 U.S. 429, 431, 438.

9.
Judge’s Responsibility

  “[C]ourts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.” Terry v. Ohio (1968) 392 U.S. 1, fn 15.

10.
Judge’s Duty When Confronted With a Warrantless Search

  When a search is warrantless, a trial judge and/or reviewing appellate court must specifically determine whether the search at issue fit within one of the few recognized exceptions to the “warrant-based-on-probable cause” requirement of the Fourth Amendment. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 932.

11.
Who Has Burden of Proof Regarding a Warrantless Search

  The searching official who makes a warrantless search without probable cause has the burden to prove the existence of a recognized exception to the probable cause requirement. Coolidge v. New Hampshire (1971) 403 U.S. 443.

  Government has the burden to prove that a warrantless search is within a recognized exception for warrantless searches without probable cause. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 932.

  The prosecution has the burden of proving a Constitutionally legitimate proper justification for a warrentless search. People v. Gale (1973) 9 Cal.3d 788, 795.

  The prosecution has the burden of proof to establish on the record that a warrentless detention was justified. People v. Bower (1979) 24 Cal.3d 638, 644.

12.
Relationship Between Fourth Amendment’s Language
and
Law Enforcement Conduct

Sadly, but realistically, a persuasive case can be made that many law enforcement officers deliberately violate the Fourth Amendment for various reasons and even routinely commit perjury by giving tailored testimony to try to make what really happened in the field comply with the Fourth Amendment’s requirements. To exacerbate matters, a powerful case can also be made that many judges allow law enforcement officers to commit perjury in their courtrooms. To further exacerbate matters, many law enforcement officers do not come forward to expose their fellow officers who they know have, or will, commit perjury. And, to exacerbate matters further, many elected officials openly or tacitly pressure and encourage law enforcement officers to commit perjury as an ill-advised perceived necessity to wage an alleged effective war against crime, drugs, and terrorism.

  With all this perjury going on, the public trust in civil authority, the deterrent effect of the so called solemn oath, and the truth have, to a large extent, been fictions in the United States for decades, and probably longer.

  For more information, “Proving the Lie: Litigating Police Credibility” by David N. Dorfman, 26 American Journal of Criminal Law 455, Summer, 1999, and “The Failure to Breach the Blue Wall of Silence: The Circling of the Wagons to Protect Police Perjury” by Jennifer E. Koepke, 39 Washburn Law Journal 211, Winter, 2000.

13.
Nature of Fourth Amendment

Sacred, Vital Right

  “The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’ This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. . . . ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Terry v. Ohio (1968) 393 U.S. 1, 8-9. [Emphasis added.]

Primary Purpose

  The primary purpose of the Fourth Amendment is to protect individual privacy against indiscriminate governmental intrusions. Carroll v. United States (1925) 267 U.S. 132, 153-154.

Not a Nuisance The Fourth Amendment is not a “kind of nuisance, a serious impediment in the war against crime” nor “an outworn bit of Eighteenth Century romantic rationalism but an indispensable need for a democratic society,” the abuse of which “more than any one single factor gave rise to American independence.” Harris v. United States (1947) 331 U.S. 145, 157, 159, 161 [dis. opn. By Frankfurter, J.] “Among deprivation of rights, none is so effective in cowing a population, crushing the spirt of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States (1949) 338 U.S. 160, 180-181 [dis. opn. by Jackson, J.] In determining the range and depth of the Fourth Amendment guarantees, courts must be aware that “in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York (1959) 360 U.S. 315, 320-321.

What Fourth Amendment Protects

  The Fourth Amendment protects people, not places. Terry v. Ohio (1968) 393 U.S. 1, 8-9.

Entitlement: What Entitled To?

  “[W]henever an individual may harbor a reasonable expectation of privacy, . . . he is entitled to be free from unreasonable governmental intrusion.” Terry v. Ohio (1968) 393 U.S. 1, 9. [Emphasis added.]

Binding on States

  The Fourth Amendment is applicable to, and binding on, the States by way of the Fourteenth Amendment. Mapp v. Ohio (1961) 367 U.S. 643; Minnesota v. Dickerson (1993) 508 U.S. 366.

Principal Evil

  The principal evil sought to be forestalled by the Fourth Amendment is the invasion of individual privacy by wholesale exploratory searches conducted under color of law by government’s agents. Warden v. Hayden (1967) 387 U.S. 294, 301. For this reason, the scope of any subsequent search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible.Terry v. Ohio (1968) 392 U.S. 1, 19.

Federal Law Controlling

  The validity of a search conducted by state law enforcement is ultimately a question of federal law. United States v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997).

14.
History of Abuse of Power to Search and/or Arrest: Basis for Probable Cause Requirement

The history of the use and frequent abuse of the power to arrest cautions that a relaxation of the fundamental requirement of probable cause would leave law-abiding citizens at the mercy of officers’ whim and caprice. Wong Sun v. U.S. (1963) 371 U.S. 471, 489.

15.
Judges Are Supposed to Condemn Unconstitutional Official Acts

  “Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” Terry v. Ohio (1968) 393 U.S. 1, 13.

16.
Fourth Amendment Norm: “Warrant-based-on-probable Cause”

  The strongly preferred norm in search and seizure under a proper application of the Fourth Amendment is strict adherence to a “warrant-based-on-probable cause” requirement premised on a tripartite weighing of three factors: public necessity, efficacy of the search, and degree of the intrusion. Schnecklolth v. Bustamonte (1973) 412 U.S. 218

17.
Exceptions to the Fourth Amendment Norm

Searches and seizures conducted outside the judicial process, without prior approval by a judge, are per se unreasonable under the Fourth Amendment, except for only a few specifically established and well delineated exceptions. Minnesota v. Dickerson (1993) 508 U.S. 366.

  Currently, the only judicially recognized and approved exceptions to the “warrant-based-on-probable cause” requirement are as follows: a search based on true consent; stop based on objectively reasonable and articulable, particularized suspicion that crime is afoot and the person stopped is somehow connected to the suspicious criminal activity; regulatory inspection of premises of an establishment which serves alcoholic beverages; exigent circumstances of hot pursuit of an armed criminal suspect; search incident to a lawful arrest; border searches for contraband and illegal aliens; “administrative searches” at searches for weapons and explosives; and “administrative searches” of persons and property entering a courthouse. [For a listing of specific case authority for most of these exceptions see Collier v. Miller (1976) 414 F. Supp. 1357, 1361.]

  The Fourth and Fourteenth Amendments render a search conducted without a warrant unreasonable per se “subject only to a few specifically established and well-delineated exceptions” which have been narrowly applied. Schnecklolth v. Bustamonte (1973) 412 U.S. 218.

  Exceptions to warrantless searches “are not to be lightly drawn.” Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 933.

18.
U.S. Supreme Court Reluctant to Expand Exceptions

As a generalization, the U.S. Supreme Court historically has been extremely reluctant to expand upon these exceptions. United States v. Chadwick (1977) 433 U.S. 1.

  A search conducted without a warrant issued upon probable cause can pass constitutional muster only if it is shown to fall within a recognized exception to the requirement for probable cause absent a warrant. Schneckloth v. Bustamonte (1973) 412 U.S. 218.

19.
The “Fourth Amendment Tripartite”

The primary to consideration when determining if a search is reasonable is “the Fourth Amendment’s tripartite,” namely, weighing-and reconciling-three factors: public necessity, efficacy of the search, and degree of the intrusion. Schnecklolth v. Bustamonte(1973) 412 U.S. 218

Public Necessity

  The public necessity purpose or objective sought in the implementation of a preventive search must be examined in light of the nature of the threat involved and the likelihood that the threat will materialize. Collier v. Miller (1976) 414 F. Supp. 1357, 1362.

  The dangers posed by physical items by their misuse must be compared to the danger posed by a bomb or a gun used to facilitate terrorism in one form or another. Collier v. Miller (1976) 414 F. Supp. 1357, 1362.

  The absence of a history of disturbance(s) and/or injury(ies) caused by a certain type of physical item reduces the legitimacy of a search based on public necessity to discover and to confiscate such an item. Collier v. Miller (1976) 414 F. Supp. 1357, 1362.

Public necessity should not be lightly invoked “as a conclusionary justification for . . . search procedures.” Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 933.

  Random, coercive, and intrusive search procedures of patrons of public events conflict with the patron’s Fourth Amendment rights. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 933.

  Random searches of one’s person and property conducted without any definitive basis for suspicion constitute a serious intrusion which is often annoying and humiliating. Collier v. Miller (1976) 414 F. Supp. 1357, 1365.

Efficacy of the Search To the extent that a search is unlikely to be effective in averting the harm sought to be deterred, the legitimacy of a search is reduced because the efficacy of the search is low. United States v. Skipwith (1973) 482 F.2d 1272, 1275.

  A search policy which makes the size of a container, e.g., pocket, parcel, brief case, purse, etc., the sole criterion to be applied in determining whether or not to conduct a search is Constitutionally infirmed. Collier v. Miller (1976) 414 F. Supp. 1357, 1367.

  Patrons of a rock concert at a public university do not have to submit to a search of their person or property when the sole criterion to be applied pursuant to a search policy is the size of a container in their clothing and/or hand-held items. Collier v. Miller (1976) 414 F. Supp. 1357.

  To the extent that random searches involving a substantial intrusion are unlikely to yield a high efficacy of search the search task is insurmountable and therefore all such random searches tend to lose their legitimacy. Collier v. Miller (1976) 414 F. Supp. 1357, 1363.

  The search of a person and/or the person’s property who fit a certain profile but who had done nothing of a suspicious or illegal nature is invalid. United States v. Ruiz-Estrella (1973) 481 F.2d 723.

  A search policy which leaves the decision to search whom, what, where, and how, and the degree of the ensuing search up to the unfettered discretion of the person doing the search without objective, rational, specific criteria, so that the person conducting the search is free to apply his or her own individualized criteria as to who and what will be searched, why and when and how, is probably unconstitutional as being violative of the Fourth Amendment. Collier v. Miller (1976) 414 F. Supp. 1357, 1364.

Degree of Intrusion

  The “stop-and-frisk” exception to warrantless searches is wholly inapposite to random searches of patrons attempting to enter a public forum and their personal effects. Random and arbitrary preventive search procedures cannot be justified on the basis of stop-and-frisk doctrine. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 932.

20.
Regarding Consent to Searches

Right to Consent to Search

  One may consent to a police officer’s search of his or her person and/or personal effects; however, civil authority has the burden of proving that the consent was in fact voluntarily given and not the result of duress or coercion, express or implied. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249.

  A voluntary consent to a search, even in the absence of the person’s knowledge of his or her right to refuse, is possible. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249.

Question of Fact: Voluntariness of Alleged Consent

  The voluntariness of an alleged consent to search is a question of fact to be determined from all of the circumstances. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249.

True Consent Should Not be Inferred Nor Assumed

  Consent to a search is not to be readily inferred. Courts must indulge every reasonable presumption against the waiver of fundamental constitutional rights. Bumper v. North Carolina (1968) 391 U.S. 543.

Effect of Majority Who “Consent”

  “The mere fact that most patrons [of a public event] submitted to search bespeaks more of coercion and duress than voluntariness.” Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 933.

Effect of Price of Admission Being Refundable

  When civil authority’s agents seek to impose random, coercive, and intrusive search procedures upon patrons of public events, it is of little consequence that these patrons are told before or after being asked to submit to a search that the price of their admission tickets will be refunded if they refuse to be searched. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 933.

Effect of Warning Signs, Etc.

  Signs and a tape recording at a public forum that warn patrons of an event at the public form of a “check” without informing them of their right to refuse consent to a search of their person and property, of their right to have the costs of their ticket refunded if they refuse a check, and that contraband and/or weapons will be confiscated are not adequate to support the contention that those who proceeded to enter impliedly consented to have their person and/or property searched. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 932-934.

Effect of Consent to Search Condition for Access to Public Forum/Event

  Civil authority cannot condition public access to a public forum or event “on submission to a search and then claim those subjected to the searches voluntarily consented. . . . Any consent obtained under such circumstances [is] an inherent product of coercion, since people undoubtedly [feel] if they [refuse] to be searched they . . . forfeit their right to attend the [public event.]” Gaioni v. Folmar (1978) 460 F. Supp. 10.

  One’s right to continue the exercise of a privilege granted by civil authority cannot be made to depend upon the person granted the right submitting to a condition prescribed by civil authority which conflicts with the U.S. Constitution. United States v. Chicago, Milwaukee, St. Paul, & Pacific Railroad Co. (1931) 282 U.S. 311, 328-329.

  When public access to a place or building is conditioned on submission to a search, that submission is coerced and not consensual. Collier v. Miller (1976) 414 F. Supp. 1357, 1366; United States v. Albarado, 495 F.2d 799, 806-807 (2d Cir. 1974).

Effect of Uniformed, Armed Law Enforcement Officers Imposing Search Conditions

  The presence of uniformed law enforcement officers at a public event who demand submission to a search as a condition for entry into the public event enhances “the intimidating effect” which creates the impression that law enforcement has turned the public forum “into an armed camp.” Under such circumstances, it cannot be concluded that those subjected to such searches truly consented thereto. Gaioni v. Folmar (1978) 460 F. Supp.10.

Effect of Warnings Regarding “Subject to Search”

  Civil authority’s “reliance on warning signs is misplaced. Voluntary consent cannot be implied solely from the presence of such signs, especially since many patrons never saw them.” Gaioni v. Folmar (1978) 460 F. Supp.10.

Effect of Public Event Being Difficult to Police The fact that a public event is difficult to police to assure security for the public does not authorize law enforcement personnel to engage in illegal enforcement measures such as wholesale, warrantless searches of patrons who attempt to enter a public forum to attend a public event. If an event cannot be policed in a manner that comports with the U.S. Constitution, no part of civil authority should sponsor it nor support it. Gaioni v. Folmar (1978) 460 F.

Searches Based on Implied Consent

  All searches based on the Doctrine of Implied Consent violate the requirement that “[the] government must show a consent that is unequivocal and specific. Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951).

Consent: What Government Has to Prove

  Any civil authority which seeks to justify any search as a condition for entry into a public forum based on the consent of the person searched has the burden to prove that the initial detention and the subsequent search for prohibited items were both based on true consent. This is because civil authority cannot constitutionally condition entrance to an event or place on a patron’s relinquishment of the right to be free from unreasonable searches. Collier v. Miller (1976) 414 F. Supp. 1357, 1366-1367.

Consent: What Government Does Not Have to Prove

  The government does not have to prove that a person subjected to a search knew that his or her consent to the search could be freely withheld without being penalized. United States v. Garcia, 496 F.2d 670 (5th Cir. 1974).

21.
Wholesale Searches Unlikely to be Held Constitutional

A stop, arrest, or search made pursuant to a general interest in crime control is unconstitutional. City of Indianapolis v. Edmond (2000) 531 U.S. 32.

  “Speculative seizures” are unconstitutional. The primary purpose of the Fourth Amendment is to protect one’s reasonable expectation of privacy by imposing a requirement that police officers have probable cause to believe that the item seized is contraband before they seize it. Minnesota v. Dickerson (1993) 508 U.S. 366.

  A general law enforcement policy to conduct a general detention and interrogation of all persons in a given area, at will, in the hopes of uncovering some evidence of a crime by some persons, under California’s and the United States’ Constitutions, is unconstitutional policy because such unrestricted general sweeps and searches are unconstitutional. People v. Aldridge (1984) 35 Cal.3d 473, 480.

  A person has “every right to avoid” “an indiscriminate investigative detention.” People v. Aldridge (1984) 35 Cal.3d 473, 479.

  “A police officer may not use the authority of his uniform and badge to go around promiscuously bothering citizens.” Batts v. Superior Court (1972) 23 Cal.App.3d 435, 439. [Quoted with approval in In re Tony C. (1978) 21 Cal.3d 888, 893 and People v. Aldridge (1984) 35 Cal.3d 473, 479. Consequently, a person who leaves “an imminent intrusion cannot bootstrap an illegal detention into one that is legal.” People v. Aldridge (1984) 35 Cal.3d 473, 479. Reformulated, a person has a right to walk away from a police officer who unconstitutionally harasses him and/or detains him. Id.

  A citizen may not be detained, even momentarily, without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. Florida v. Royer (1983) 460 U.S. 491, 498.

  Wholesale searches of patrons of public events by on-duty or off-duty law enforcement officers are not a valid exception to the warrantless search based on probable cause requirement. Public necessity does not justify such searches. Stroeber v. Commission Veteran’s Auditorium (1977) 453 F. Supp. 926, 933.

  Wholesale searches of patrons attempting to enter a public forum are impermissible. “[N]o court has ever approved a dragnet search of citizens based upon the justification that the danger of criminal conduct would be reduced, even in high crime areas where incidents of criminal conduct occur quite frequently.” Collier v. Miller (1976) 414 F. Supp. 1357, 1367.

  A search prompted by a general curiosity to ascertain what, if anything, is contained inside the object searches is manifestly exploratory in nature, and violates the Fourth Amendment’s letter and spirit. People v. Superior Court (1970) 3 Cal.3d 807, 831.

  An unwritten or written search policy which vests the searching officer with broad power to invade the rights of the public to be free from unreasonable searches, without any specific and limiting guidelines, violates the Fourth Amendment. Collier v. Miller (1976) 414 F. Supp. 1357, 1367.

22.
Wholesale Searches and Probable Cause Properly Construed

Probable cause for a wholesale, random search of the public or individual members of same does not exist as a result of a history of disturbances and flagrant violations of law at a public forum or event coupled with law enforcement’s beliefs, concerns, and suspicions that public necessity to prevent future injury requires wholesale searches of patrons of a public event. That understanding of probable cause is “a complete misunderstanding of the concept of probable cause. Probable cause exists only when articulable facts and circumstances indicate a particular individual has committed or is committing a criminal offense. The fact that a person belongs to a class, such as concert goers, which contains some members who violate the law does not create probable cause to search that person. . . . To hold otherwise, [would be tantamount to sanctioning ‘probable cause by association,’ [which ] would permit authorities arbitrarily to subject citizens to search and thus emasculate the Fourth Amendment.Gaioni v. Folmar (1978) 460 F. Supp. 10. [Emphasis added.]

23.
Effect of Official’s Desire to Prevent Injury and Promote Security

Absent bonafide exigent circumstances or the presence of reasonably objective, individualized, particularized reasons to suspect that crime is afoot and a suspect is somehow connected to the crime or a past crime, a searching official’s sincere, good faith, valid interest in preventing potential injuries does not justify a wholesale search of the general public or individual members of same. United States v. Davis, 482 F.2d 893, 906 (9th Cir. 1973).

  Regulatory inspections of premises are distinguishable from personal intrusion searches. Collier v. Miller (1976) 414 F. Supp. 1357, 1361.

24.
Probable Cause Calculus: Law Enforcement Officer-Citizen Encounters

Test for a Constitutionally Valid Detention Although an experienced law enforcement officer’s specialized knowledge and experience might render suspicious what would appear to be innocent to a layperson, the test for a constitutionally valid investigative stop and detention is this: whether the circumstances would warrant a man of reasonable caution, who possessed such knowledge, to have the belief that the action taken was appropriate. People v. Bower (1979) 24 Cal.3d 638, 646.

Vital, Pivotal, “Fighting Issue”: Did Officer Comply With Objective, Reasonable Test to Justify an Investigative Detention/Stop?

  A police officer must be able to justify an investigative stop or detention of a person in a public place before making such a stop or detention. To justify such a stop or detention, at the time of the stop or detention, the officer must be able to do all of the following: articulate “specific and articulable facts causing him to suspect that (1) some activity relating to a crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. . . . it must be objectively reasonable for him to do so; the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience . . . to suspect the same criminal activity and the same involvement by the person in question. . . . An investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.” In re Tony C. (1978) 21 Cal.3d 888, 893, quoting with approval Terry v. Ohio (1968) 392 U.S. 1, 22. The articulated facts must be more than the officer’s mere subjective impressions. Permissible deductions and rational inferences must be grounded in objective facts and be capable of rational explanation. This rule prohibits reasonable suspicion from being based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person stopped. United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996). A police officer’s interference with one’s person or property cannot be based on generalized and/or unparticularized reasons. Brent v. Ashley, 247 F.3d 1294, 1300 (11th Cir. 2001).

Effect of Reasonable Suspicion

Reasonable suspicion is more than an inchoate and unparticularized suspicion or hunch, and requires that an officer have a particularized and objective basis for suspecting that a particular person is involved with a particular crime. United States v. Sokolow (1989) 490 U.S. 1,7.

  A reasonable suspicion of involvement in criminal activity, even if that activity is consistent with innocent activity, will justify a temporary stop or detention. If the circumstances are “consistent with criminal activity,” “they permit-even demand-an investigation: the public rightfully expects a police officer to inquire into such circumstances “in the proper discharge of the officer’s duties.” The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. The principal function of his investigation is to resolve the very ambiguity and establish whether the activity is in fact legal or illegal-to enable the police to quickly determine whether they should allow the suspect to go about his business or to hold him to answer charges. In re Tony C. (1978) 21 Cal.3d 888, 894.

  A citizen’s interest in freedom from abuse of this procedure is protected by the correlative rule that no stop or detention is permissible when the circumstances are not reasonably consistent with criminal activity and the investigation is based on mere curiosity, rumor, or hunch. In re Tony C. (1978) 21 Cal.3d 888, 894.

Test for When a Detention Occurs

  A detention occurs if the suspect is not free to leave at will-if he is kept in the officer’s presence by physical restraint, threat of force, or assertion of authority. In re Tony C. (1978) 21 Cal.3d 888, 895.

Great Import of Timing of Officer’s Knowledge

  The validity of an investigative stop or detention must be tested by the stopping law enforcement officer’s knowledge at the time of the stop. Dawkins v. City of Los Angeles (1978) 22 Cal.3d 126, 134.

  Knowledge acquired through hindsight after a detention, search, or an arrest is an improper gauge by which to judge an officer’s actions. People v. Gale (1973) 9 Cal.3d 788, 795.

Cannot “Stop Now, Justify Later”

  An investigative stop detention may not be justified after the fact on a basis not relied upon by the detaining officer. Such a rule would countenance a detain-now-justify-later approach to police instructions which is contrary to the constitutional requirements that protect a citizen against unreasonable searches and seizures. People v. Bower (1979) 24 Cal.3d 638, 647.

  “A detention may not be justified after the fact on a subsequently contrived basis not relied on by the officer at the time the events occurred.” People v. Aldridge (1984) 35 Cal.3d 473, 480.

Effect of Being in a Public Place

  It is not reasonable to suspect that a person found in a public place is bent on committing a crime. To permit such an inference would be tantamount to treating everyone found in a public place as a criminal suspect. In re Tony C. (1978) 21 Cal.3d 888, 897.

Effect of a Stale Crime Report

  A stale report of a crime, even one that is only one day old, does not convert the crime scene into “a no man’s land” whereby “any passerby is fair game for a roving police interrogation.” In re Tony C. (1978) 21 Cal.3d 888, 897.

Effect of a Vague Description of Suspect

  “[A] vague description” of a criminal suspect does not allow police to stop and question every person in an area who fits that description; otherwise, the law would sanction a “wholesale intrusion into the privacy of a significant portion of our citizenry” which “would be socially intolerable and constitutionally impermissible.” In re Tony C. (1978) 21 Cal.3d 888, 898.

Effect of Suspect’s Apparent Nervousness

  A suspect’s alleged manifested “signs of nervousness or concern” at the sudden appearance of a police officer is insufficient, without much more, to justify an investigative stop or detention. In re Tony C. (1978) 21 Cal.3d 888, 898.

Effect of Officer’s Mere Suspicion

  An officer’s personal suspicion, without more, cannot qualify as specialized knowledge within the above stated rule, nor convert innocent circumstances into criminal ones. People v. Bower (1979) 24 Cal.3d 638, 646.

Constitutionally Correct Test for Existence of Probable Cause to Arrest

Probable cause to arrest exists if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong belief that the accused is guilty. This is an objective standard which must be decided in light of the particular facts of each case. Terry v. Ohio (1968) 392 U.S. 1, 21-22.

Objective Test for Probable Cause It is imperative that the facts surrounding an investigative stop, detention, search, and/or arrest “be judged against an objective standard: would the facts available to the officer at the moment of seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more than substantial inarticulate hunches, a result this Court has constantly refused to sanction.” People v. Gale (1973) 9 Cal.3d 788, 796 [quoting Terry v. Ohio (1968) 392 U.S. 1, 21-22 with approval.]

“Consensual Encounter”: Law Enforcement Officers’ Right to Approach Without Probable Cause Police officers enjoy the liberty of addressing questions to other persons; however, “ordinarily the person addressed has an equal right to ignore his interrogator and walk away.” U.S. v. Mendenhall (1980) 446 U.S. 544, 553. [Emphasis added.]

  “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions. . . . The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” Florida v. Royer (1983) 460 U.S. 491, 497-498. [Emphasis added.]

  The Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to a search of their property, but only so long as a reasonable person would understand that he or she can refuse to cooperate; therefore, when a law enforcement officer approaches an individual, engages the individual in conversation, and makes a request of the individual, unless the officer has an objectively sufficient, particularized reason to suspect that a crime is being committed, or has been committed, and that the person approached is somehow connected to the suspected crime, the “individual may decline [the] officer’s request without fearing prosecution. . . . a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick (1991) 501 U.S. 429, 431, 437. [Emphasis added.]

Effect of Exculpatory [Favorable] Information to Citizen-Suspect

  Evidence that a person did not commit a crime is relevant to whether officers had probable cause to arrest. This is because an officer contemplating making an arrest cannot disregard plainly exculpatory evidence, even if substantial inculpatory evidence suggests that probable cause exists. Womack v. City of Bellefontaine Neighbors, 193 F.3d 1028, 1031 (8th Cir. 1999).

Probable Cause Cannot be Based on Exercise of First Amendment Right(s)

  An officer may not base probable cause for anything based on a person’s exercise of First Amendment rights, including verbal criticism directed against one or more police officers. Houston v. Hill (1987) 482 U.S. 451, 461-63.

Probable CauseCannot be Based on Stale Information

Probable cause may not be based on stale information. Smith v. Oklahoma, 696 F.2d 784, 786 (10th Cir. 1983).

Probable Cause Limited to Only Criminal Conduct

Probable cause exists only in relation to criminal conduct. A civil dispute, therefore, cannot give rise to probable cause. Allen v. City of Portland, 73 F.,3d 232, 237 (9th Circ. 1995).

Danger of Relying Upon Furtive Behavior

  Law enforcement officers, and judges, need to be extremely circumspect when attempting to infer criminal activity from allegedly “furtive” behavior. This is because the viewpoints of the actor and of the observer are entirely different, and the observer is unable to determine with any degree of accuracy what is the actor’s intent when observed. An innocent, legal gesture may too often be mistaken for a guilty movement because the observer is unable to interpret it accurately in accordance with the actor’s true intent and purpose. Gestures, and interpreting gestures, is far more difficult that interpreting words, because all are inherently ambiguous. People v. Bower (1979) 24 Cal.3d 638, 647.

  Upon careful, logical, mature reflection, there is little that is truly “furtive” about most gestures. People v. Bower (1979) 24 Cal.3d 638, 647.

  The law requires more than a mere “furtive gesture” to constitute probable cause to search or to arrest. In the absence of information or other suspicious circumstances, a furtive gesture alone is not sufficient. People v. Superior Court (1970) 3 Cal.3d 807, 818.

Effect of One’s Concern for Privacy-Even When Outdoors

  A person’s concern for privacy, even when outdoors, does not imply guilt nor involvement with criminal activity. People v. Bower (1979) 24 Cal.3d 638, 648.

Effect of Too Tight Handcuffing

  Handcuffing one too tightly may constitute excessive force. Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987).

“Excessive Force”

  A lack of provocation or need to use force makes any use of force excessive and illegal. United States v. Harrison, 671 F.2d 1159 (8th Cir. 1982).

25.
Citizen’s Rights

Right to Use Public Places Free of Harassment

  Every person has a “right” and a significant interest to enjoy the use of public streets, building and places “without unwarranted interference or harassment by agents of the law.” In re Tony C. (1978) 21 Cal.3d 888, 893.

Right to be Autonomous

  In our society, private individuals are free to conduct their own lives and to seek to mingle with, or to avoid, whomever they please. People v. Bower (1979) 24 Cal.3d 638, 648.

Right to Avoid Others

  In our society, private individuals are not under any legal duty to submit to the attentions of another private person. People v. Bower (1979) 24 Cal.3d 638, 648.

Right to Avoid a Law Enforcement Officer-Under Normal Circumstances

  In our society, a police officer has the power to insist upon an encounter with a person and to detain a person, but this is true only if the officer has adequate cause. Lacking such a basis, an officer may not detain an individual, and the individual, unless he or she is properly detained and so notified, is free to avoid the officer as he is free to avoid an ordinary private person. To hold that the mere exercise of this liberty justifies a detention would be tantamount to holding that an officer may insist upon an encounter without adequate cause. People v. Bower (1979) 24 Cal.3d 638, 648. [Emphasis added.]

Right to Walk Away From a Police Officer

  Police officers enjoy the liberty of addressing questions to other persons; however, “ordinarily the person addressed has an equal right to ignore his interrogator and walk away.” U.S. v. Mendenhall 1980) 446 U.S. 544, 553. [Emphasis added.]

Right to Exercise Rights Without Being Punished for So Doing

  A person’s outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable. This rule applies to investigative stop detentions. “If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless; it would exist only to the extent it was not exercised. Such a conclusion is unacceptable.” People v. Bower (1979) 24 Cal.3d 638, 649.

Right to Assert Right(s) Verbally

  One’s mere verbal, passive assertion of a constitutional right and non-violent physical acts consistent with that verbal, passive assertion of a constitutional right cannot for the basis for any criminal conduct; therefore, any arrest and/or search arising from such an exercise of a constitutional right invades the accused’s Fourth Amendment rights and all evidence seized as a result of the unconstitutional search must be suppressed. People v. Wetzel (1974) 11 Cal.3d 104, 109.

Right to Refuse Consent to Search Without Being Punished for So Doing

  When a suspect’s entire course of conduct is directed to refusal to consent to a search, and nothing more, and doing what the suspect is ordered to do by a police officer, under the circumstances, would constitute the de facto giving of the very consent to a search which the suspect does not want to give and does not have to give, the suspect’s conduct, as a matter of law, cannot constitute grounds for a lawful arrest or subsequent search and seizure. People v. Wetzel (1974) 11 Cal.3d 104, 109.

  A suspect’s refusal to waive a constitutional right, e.g., refusing to consent to a search, cannot legally “convert mere suspicion of crime into probable cause to arrest”. Otherwise, the exercise of a right would be allowed to create suspicion and one’s right to be free from unreasonable police intrusions would be vitiated by merely asserting the right. People v. Wetzel (1974) 11 Cal.3d 104, 109.

  A refusal to consent to a search, alone, does not constitute probable cause. Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986).

  The mere act of claiming a constitutional right and/or refusing to yield the right and/or reasonable, passive, non-violent, physical conduct consistent with the exercising of the right and/or the refusal to yield the right “cannot constitute a violation of” Penal Code § 148. People v. Wetzel (1974) 11 Cal.3d 104, 109-110.

  A person may elect to stand on his constitutional right not to cooperate with a police officer who is intent on securing evidence against him. When that happens, probable cause for a search and/or an arrest must be predicated on a suspect’s specific acts and circumstances other than a mere failure to cooperate with an investigating officer. Gallik v. Superior Court (1971) 5 Cal.3d 855.

  An officer may not retaliate against a person who verbally challenges the officer’s authority to effect a search, seizure, or arrest. Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994).

Right to Have Officials Give Due Weight to All Exculpatory [Favorable] Information

  Facts and circumstances within an officer’s knowledge that would lead a reasonable person to conclude that a suspect has not committed a crime and which tend to negate probable cause, or which would tend to sway the probable cause calculus in favor of a suspect must be considered in determining whether probable cause existed. Sutkiewicz v. Monroe Co. Sheriff, 110 F.3d 352, 358 (6th Circ. 1997); Haupt v. Dillard, 17 F.3d 285, 290, fn 5 (9th Circ. 1994).

Limits on “Plain View Doctrine”

  When police lack probable cause to believe that an object in plain view is contraband without conducting a further search of the object that is in plain view, because its incriminating nature, if any, is not immediately apparent, the plain-view doctrine cannot justify it seizure. Minnesota v. Dickerson (1993) 508 U.S. 366.

Right to be Free of Wholesale, Indiscriminate, Speculative, Preventive, Dragnet-Like Searches

  A stop, arrest, or search made pursuant to a general interest in crime control is unconstitutional. City of Indianapolis v. Edmond (2000) 531 U.S. 32.

  “Speculative seizures” are unconstitutional. The primary purpose of the Fourth Amendment is to protect one’s reasonable expectation of privacy by imposing a requirement that police officers have probable cause to believe that the item seized is contraband before they seize it. Minnesota v. Dickerson (1993) 508 U.S. 366.

A general law enforcement policy to conduct a general detention and interrogation of all persons in a given area, at will, in the hopes of uncovering some evidence of a crime by some persons, under California’s and the United States’ Constitutions, is unconstitutional policy because such unrestricted general sweeps and searches are unconstitutional. People v. Aldridge (1984) 35 Cal.3d 473, 480.

  A person has “every right to avoid” “an indiscriminate investigative detention.” People v. Aldridge (1984) 35 Cal.3d 473, 479.

“A police officer may not use the authority of his uniform and badge to go around promiscuously bothering citizens.” Batts v. Superior Court (1972) 23 Cal.App.3d 435, 439. [Quoted with approval in In re Tony C. (1978) 21 Cal.3d 888, 893 and People v. Aldridge (1984) 35 Cal.3d 473, 479. Consequently, a person who leaves “an imminent intrusion cannot bootstrap an illegal detention into one that is legal.” People v. Aldridge (1984) 35 Cal.3d 473, 479. Reformulated, a person has a right to walk away from a police officer who unconstitutionally harasses him and/or detains him. Id.

  A citizen may not be detained, even momentarily, without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. Florida v. Royer (1983) 460 U.S. 491, 498.

Right to Insist That Officer Use Least Intrusive Means

  An officer who wishes to make an investigative stop must use the least intrusive means reasonably available to verify or to dispel the officer’s suspicion in a short period of time. Florida v. Royer (1983) 460 U.S. 491, 499-500.

Right to Not be Caught up in Broad Profiles

  To justify the stop or detention, a law enforcement officer who stops an individual for an investigative detention may not rely upon a broad profile which casts suspicion on entire categories of people, which does not include individualized suspicion of the particular person stopped or detained. United States v. Michael R. 90 F.3fd 340, 346 (9th Circ. 1996).

Right to Not be Detained or Hazzeled Merely Because in “High Crime Area”

  A person in, or passing through, an alleged “high crime area” may not be subjected to an invasion of his privacy merely because he is in, or passing, through such an area. People v. Aldridge (1984) 35 Cal.3d 473, 478. There is nothing inherently suspicious about in, or passing through, such an area. Id. “A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality.” Id., 479.

Right to Merely Walk Through an Airport Without Being Stopped

  Since the Fourth Amendment protects a “constitutional right of personal security,” it “protects people, not places,” and this includes people who walk through an airport. U.S. v. Mendenhall (1980) 446 U.S. 544, 550.

Right to Insist That Officer Act in Discharge of Lawful Duty An essential element of the crime of Penal Code § 148 [interfering with, obstructing and/or delaying a peace officer] is that the officer at the time of making an arrest must be engaged in the lawful performance of his duties. People v. White (1980) 101 Cal.App.3d 161, 166.

  No law enforcement officer has a duty to make an unlawful arrest nor to punish a person who merely non-violently exercises a constitutional right and refuses to waive same, nor to taunt nor beat a person arrested. People v. White (1980) 101 Cal.App.3d 161, 167.

  A defendant accused of violating Penal Code § 148 cannot be convicted of that section if the arrest for violating that section is unlawful. People v. White (1980) 101 Cal.App.3d 161, 166.

Right to be Free of Excessive Force

  An arrest made with excessive force is unlawful. People v. White (1980) 101 Cal.App.3d 161, 167.

Right to Use Reasonable Force in Self-Defense to Excessive Force During Arrest

A person being arrested has a right to use reasonable force in self-defense, to protect himself, against excessive force used by the arresting officer against him during the arrest. People v. White (1980) 101 Cal.App.3d 161, 168.

When an officer uses excessive force, a defendant cannot be guilty of Penal Code §§ 245(b), 243, or 148, and, when the jury finds that the defendant used reasonable force properly in self-defense, the defendant may not be guilty of any crime. People v. White (1980) 101 Cal.App.3d 161, 168.

Right to Be “Cited and Released” on “Own Recognizance” Absent Reason for Nonrelease Penal Code § 853.6(i)(5) states that absent the existence of a reason for a nonrelase, a police officer must cite and release every person arrested for a misdemeanor. But the arresting officer did not do that in my case, which, when coupled with all things he did do-and their practical adverse ramifications for me-strongly suggests that this arresting officer did abuse his authority to vent his wrath over what he perceived to be my insufferable sin-verbally asserting my constitutional right to be free of his interference with my movement and to be free from an unreasonable search.

26.
Defenses to a Charge
of
Obstructing, Interfering With and/or Delaying Peace Officer

Lawful Duty Requirement

  Penal Code § 148 applies only to lawful arrests. People v. White (1980) 101 Cal.App.3d 161, 168.

Officer’s Discretion is Not Unlimited

  While the individual discretion of an experienced law enforcement officer is a valid factor in determining the reasonableness of a search, that discretion is not unfettered. Terry v. Ohio (1968) 393 U.S. 1, 22.

A law enforcement officer does not have unfettered discretion to detain and/or to search an individual nor to harass an individual, even if the individual refuses to identify himself, produce proof of identification, or cooperate with the officer. People v. Loudermilk (1987) 195 Cal.App.3d 996, 1004.

Effect of a Mere Hunch

  A law enforcement officer’s search cannot be based on a mere inarticulate hunch. Terry v. Ohio (1968) 393 U.S. 1, 22.

Law Enforcement Officer’s Qualified Entitlement

  “[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of is experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquires, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Terry v. Ohio (1968) 393 U.S. 1, 32.

Consensual Encounters and the “Right to Walk Away”

  “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” [Justice White, concurring, in Terry v. Ohio.] [Emphasis added.]

Great Import of “The Rule of Probable Cause

  “[A] magistrate . . . can act only if there is a showing of ‘probable cause.’ . . . To give power to the police to seize the person on some grounds different from or less than ‘probable cause’ would be handing them more authority than could be exercised by a magistrate in issuing a warrant to seize a person.. . .

  ¶ ‘These long-prevailing standards (for probable cause) seek to safeguard citizens from rash and unreasonable interferences with privacy and form unfounded charges of crime. . . . The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To all less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ . . .

  ¶ ‘The requirement of probable cause has roots that are deep in our history. The general warrant . . . perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required. . . . It is important . . . that this requirement (of probable cause) be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. . . .

  ¶ ‘In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . .

  ¶ To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

  ¶ Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.”

  ¶ There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

¶ Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.” [Justice Douglas, dissenting, in Terry v. Ohio.] [Emphasis added.]

[The notion of even submitting such a debate to the people smacks of Democracy in its fullest bloom, namely the giving over of our Republic to pure MOB RULE. When jurists are so blithely considering such an avenue there is no doubt that the canary has died in this cave and no one has noticed its demise, as it is with the national ignorance of the ongoing rampage of ex-post facto legislation - C. Joyce II]

When Probable Cause is Required

  A law enforcement officer need not establish probable cause to justify a stop-and-frisk of an individual to discover a weapon; however, to make such a stop-and-frisk Constitutionally legitimate, the officer must be able “to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts [would] reasonably warrant [the] intrusion.” Terry v. Ohio (1968) 392 U.S. 1, 21.

Effect of No Legitimate Reason to Detain

  Although circumstances short of probable cause to make an arrest may justify an officer in stopping a pedestrian on the street for questioning, a police officer may not detain a person where there are no circumstances which would indicate to a reasonable man in a like position that such a course was necessary to the proper discharge of the officer’s duties. People v. Bower (1979) 24 Cal.3d 638, 644.

Effect of “Suspicious Circumstances”

  To legally detain an individual because of “suspicious circumstances,” the prosecution must establish on the record that at the moment of the detention, there were specific and articulable facts, which reasonably caused the officer to believe that (1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity. People v. Bower (1979) 24 Cal.3d 638, 644.

What Prosecution Must Prove

  The prosecution must show that the officer personally entertained such suspicions and that these were objectively reasonable. People v. Bower (1979) 24 Cal.3d 638, 644.

When Detention is Not Justified

  If the underlying facts fail to reasonably distinguish the suspected individual from any other citizen at that time and place, the detention is not justified. People v. Bower (1979) 24 Cal.3d 638, 644.

Effect of Race

  A person’s racial status is not an “unusual” circumstance and the presence of an individual of one race in an area inhabited primarily by members of another race is not a sufficient basis to suggest that crime is afoot. People v. Bower (1979) 24 Cal.3d 638, 644.

Freedom to Travel

  Freedom to travel and to associate are fundamental rights in this state, and the suggestion that their exercise can contribute to a lawful seizure of one’s person, without something more, is illogical an intolerable. People v. Bower (1979) 24 Cal.3d 638, 645.

Effect of Darkness/Nighttime Factor

  Darkness and nighttime do not permit a reasonable suggestion of criminality. Neither darkness nor nighttime are an activity, let alone an activity by a person. These factors must be appraised with caution. At most, these factors have minimal importance in evaluating the propriety of an officer’s detention or intrusion upon a person suspected of criminal activity. People v. Bower (1979) 24 Cal.3d 638, 645.

  10:15 p.m. is hardly a late or unusual hour; thus, the mere fact that a person is in a public place around that time does not reasonably suggest that crime is afoot. People v. Bower (1979) 24 Cal.3d 638, 645.

Effect of “High Crime Area” Factor

  The “high crime area” factor is not an “activity” of an individual. Many persons are forced to live in, work in, play in, shop in, visit friends and relatives in, and/or pass thorough, areas plagued with high crime rates; therefore, an officer who relies upon a “high crime area” justification as part of his or her rationale to justify an investigative detention relies upon a weak reed for support. This justification is easily subject to abuse. A location’s crime rate does not logically transform innocent-appearing circumstances into circumstances which justify an investigative detention and/or seizure of an individual. People v. Bower (1979) 24 Cal.3d 638, 645.

Criticism of “Obstructing, Delaying, Interfering With” Peace Office Statutes

  Penal Code § 148 is inherently vague and ambiguous because it is susceptible to two reasonable constructions, one of which, in the fact situation, is more favorable to me; therefore, I am entitled to that construction because an ambiguous penal statute must be construed liberally in favor of the accused. See People v. Quiroga (1993) 16 Cal.App.4th 961 which discusses this but held Penal Code § 148 to be constitutional.

[The End]



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