FlyerTalk Forums - View Single Post - So what exactly creates probable cause?
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Old May 6, 2009 | 1:15 pm
  #279  
PTravel
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Join Date: Mar 2004
Location: Newport Beach, California, USA
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Originally Posted by law dawg
It's not. If someone doesn't want to talk to me, that's cool. If I was saying hi only then it's their right to be rude or not want to talk. If I was looking at something else, then I'll take a different approach, if needed.
I agree. Speaking of presumptions, it appears that Polonious makes the presumption or, at least, starts from the preconception, that LEOs are automatically pre-disposed to violate rights. I don't view LEOs as the enemy. Quite the contrary. That doesn't mean that there aren't the occasional bad apples, and I'm the first to call for their punishment when that happens. However, I wouldn't want to live in a society without police protection (and I also wouldn't want their difficult and dangerous job). I smile and say, "hello," to LEOs (just as I do to firemen, paramedics and uniformed military) and I don't assume any nefarious purpose if they say, "How 'ya doin'?" to me.

TSA is something else altogether. I don't look for confrontations with TSOs, and when they're friendly to me, I'm friendly back. If a TSO smiles and says, "Hi, how are you today?", I'll smile and say, "Fine, thanks. How about you?" If, however, a TSO starts questioning me about where I'm going and why I'm going there, unless it's obviously casual conversation, e.g. "Hope you're not headed to Chicago -- bad storms there today and lots of delays," I'm not only not going to answer, I'm going to explain that, in the U.S., I have a constitutional right to travel wherever I want without justifying it to the government.

In my personal experience, TSA routinely engages in conduct that, in my professional opinion, crosses the constitutional line and, as an American and a lawyer, I will not tolerate it. I do not believe in TSA's mission (or, more accurately, I don't believe TSA remotely approaches carrying out its mission), and I will not cooperate in what I regard as a quasi-fascist effort to protect airline profits at the expense of civil liberties.

Again, in my personal experience, I have no such concerns about either the police, as an institution, or the overwhelming majority of LEOs. LEOs are there to protect me, my family and my property. That's a mission statement I wholeheartedly endorse.

Others may have had a different personal experience. Certainly, if you asked me my opinion when I was a hippie-freak teenager during the late '60s and early '70s ("Far out, man! Peace and love!"), my response would have been very different but so too had my personal experience. Times have changed, however, and so have my attitudes towards LEOs, and their attitudes towards me.

You don't get that either. It's very simple and you're making it complex - police can only search/hold with cause. They have to build that cause correctly, obeying the 4th Amendment and court precedent. That's it. There is no benefit of the doubt, no presumption of innocence. Those are court issues. LEOs have to have sufficient cause, appropriately obtained. End of story.
Correct. More over, as long as a LEO has an articulable suspicion, further investigation is completely constitutional. A LEO can't say, "Well, he was black and everyone knows blacks commit crimes." That's not a legally-cognizable articulable suspicion. However, is a perfectly constitutional to say, "I stopped him because he was wearing ragged clothes in a neighborhood where everyone dresses nicely, had a ratty knapsack that could, in my experience, contain burglar tools, and, when I drove by and he noticed me in my car, he started acting nervously and evasively." THAT is an articulable suspicion.

In your case with the bottle maybe I think it's alcohol. I can't take it out of your hand to check and obtain cause, that would violate search and seizure rules. I could, however, walk up to you and observe your demeanor (swaying, etc.) and any odor I might smell (no expectation of privacy in the air - it's free to all).
Right, at which point you have an articulable suspicion ("He was walking erratically and, when I neared him, I detected a strong smell of alcohol,") and can ask to see the bottle.

At no time were you presumed innocent or guilty - it was simply checking you out, using appropriate search parameters.
Exactly. I think the point Polonious is trying to make is that, absent an articulable suspicion, no one in the U.S. may be stopped by a LEO and demanded to prove that they are NOT doing something illegal. That, however, is not what you're describing.
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