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Flyer “Processed” (Arrested?) in NM After Declining to Show ID

Flyer “Processed” (Arrested?) in NM After Declining to Show ID

Old Dec 10, 10, 5:42 pm
  #1066  
 
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Originally Posted by TWA884 View Post
in most states, if the defense has evidence that it intends to present at trial, then it must provide discovery to the prosecution prior to trial. Time limits vary by jurisdiction.
Do you mean to say that in most states, in order for the defense to present evidence at trial, they must provide discovery prior to trial (i.e., regardless of earlier intent, in order to present it at trial, it must have been provided to prosecution prior to the trial)? If you did mean "intends to present at trial," then what constitutes intent? If that was the case, it seems defense would never intend to present any evidence until after trial begins so that it wouldn't need to be provided earlier.
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Old Dec 10, 10, 6:35 pm
  #1067  
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Originally Posted by pmocek View Post
Do you mean to say that in most states, in order for the defense to present evidence at trial, they must provide discovery prior to trial (i.e., regardless of earlier intent, in order to present it at trial, it must have been provided to prosecution prior to the trial)? If you did mean "intends to present at trial," then what constitutes intent? If that was the case, it seems defense would never intend to present any evidence until after trial begins so that it wouldn't need to be provided earlier.
There are numerous appellate court decisions discussing the issues you raised and interpreting the applicable law. I suggest you consult your attorneys for the applicable law in New Mexico.

These are the statutory provisions where I practice:
(a) The defendant and his or her attorney shall disclose to
the prosecuting attorney:

(1) The names and addresses of persons, other than the defendant,
he or she intends to call as witnesses at trial, together with any
relevant written or recorded statements of those persons, or reports
of the statements of those persons, including any reports or
statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.

(2) Any real evidence which the defendant intends to offer in
evidence at the trial.

<snip>

The disclosures required under this chapter shall be made
at least 30 days prior to the trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred. If the
material and information becomes known to, or comes into the
possession of, a party within 30 days of trial, disclosure shall be
made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. "Good cause" is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.

Upon the request of any party, the court may permit a showing of
good cause for the denial or regulation of disclosures, or any
portion of that showing, to be made in camera. A verbatim record
shall be made of any such proceeding. If the court enters an order
granting relief following a showing in camera, the entire record of
the showing shall be sealed and preserved in the records of the
court, and shall be made available to an appellate court in the event
of an appeal or writ. In its discretion, the trial court may after
trial and conviction, unseal any previously sealed matter.
Failure to comply with these provisions can result in sanctions including the exclusion of the proffered evidence.
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Old Dec 10, 10, 7:40 pm
  #1068  
 
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Originally Posted by TWA884 View Post
I suggest you consult your attorneys for the applicable law in New Mexico.
Thanks. For anything related to my case, I will definitely check with my attorneys. I'm just going with the general discussion that has developed as we've side-tracked ourselves here. I'd love to discuss my case, but I'm told that I shouldn't.

I'm curious 1) whether the defense is typically obligated to provide to prosecution prior to trial something that might or might not be used as rebuttal evidence (i.e., might be used depending on what testimony is provided by prosecution witnesses), and 2) why the defense might provide evidence "intended" to be used as rebuttal evidence (to the degree that one can intend to do something contingent upon something happening later without the benefit of a crystal ball) prior to trial. Any thoughts on that?
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Old Dec 10, 10, 8:01 pm
  #1069  
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Originally Posted by pmocek View Post
Thanks. For anything related to my case, I will definitely check with my attorneys. I'm just going with the general discussion that has developed as we've side-tracked ourselves here. I'd love to discuss my case, but I'm told that I shouldn't.

I'm curious 1) whether the defense is typically obligated to provide to prosecution prior to trial something that might or might not be used as rebuttal evidence (i.e., might be used depending on what testimony is provided by prosecution witnesses), and 2) why the defense might provide evidence "intended" to be used as rebuttal evidence (to the degree that one can intend to do something contingent upon something happening later without the benefit of a crystal ball) prior to trial. Any thoughts on that?
There are dozens of appellate court opinions discussing these issues. I am unable to distill those into a single FlyerTalk message board post. It would take several weeks to cover the subject in a law school Criminal Procedure class.

I'll say this much, when deciding whether to admit defense evidence evidence that was not timely disclosed to the prosecution, most judges will first try to determine the good faith of the defense claimed timing of the formation of the intent to present the evidence.
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Old Dec 10, 10, 8:24 pm
  #1070  
 
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Originally Posted by pmocek View Post
I'm curious 1) whether the defense is typically obligated to provide to prosecution prior to trial something that might or might not be used as rebuttal evidence (i.e., might be used depending on what testimony is provided by prosecution witnesses), and 2) why the defense might provide evidence "intended" to be used as rebuttal evidence (to the degree that one can intend to do something contingent upon something happening later without the benefit of a crystal ball) prior to trial. Any thoughts on that?
Part of the answer to this is that there's a certain moral and ethical responsibility that attorneys have to the court to present their case in a orderly way and without "games". If an attorney went into court and said "your honor, I didn't intend to call this witness but realized while I was showering that there was somebody I should call and he just happened to be walking past the courthouse this morning and I asked him to come here. Can I call him as a witness?", the result is not likely to be pleasant.

Keeping that in mind and also that IANAL, I believe the short answer to your first question is that (in general, though, like everything else in law there are exceptions) there's no duty to provide information on the rebuttal evidence to the prosecution until after the testimony that needs rebuttal is presented.
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Old Dec 10, 10, 8:30 pm
  #1071  
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You may find this excerpt from an essay by a law professor of interest:

In the criminal context, several states expressly provide for broad discovery in criminal cases. Under this broad discovery duty, both the prosecution and the defendant must disclose the evidence they plan to present at trial, including the content of the testimony of rebuttal witnesses. Aware of the existence of impeaching evidence, litigants in these states can anticipate which of their evidence would probably not withstand cross examination and avoid its presentation from the outset. Current federal rules, in contrast, require only limited disclosure. Several roposals, however, are now under consideration to amend the federal rules so that broad discovery will be available even in federal criminal litigation. Advocating the need to avoid surprise during the trial, these proposals call for a duty of full disclosure, including the discovery of evidence intended to be presented solely for impeachment purposes. Such discovery will substantially diminish the possibility of evidence refutation and consequently the risk for overcorrection.
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Old Dec 10, 10, 9:49 pm
  #1072  
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Post DA: Traveler out of line by refusing to show ID

Bernalillo County District Attorney Kari Brandenburg says a Seattle man was out of line and outside the law in a confrontation with TSA officers at an airport checkpoint.

Phil Mocek was charged with disorderly conduct, criminal trespassing and other charges after refusing to show his ID at the Albuquerque Sunport in November 2009. His trial was postponed this week. Civil liberties groups across the nation are watching the case closely.

“It’s about public safety,” Brandenburg said. “In this day and age, when you get a prescription, when you go get a medical exam, you usually have to show a picture ID - that’s what we do. This individual refused to show his ID, and refused to obey a lawful order. He was asked to leave and he refused to leave.”
http://www.kob.com/article/stories/S....shtml?cat=500

There might be a video clip at the link above but it's not playing right now.
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Old Dec 10, 10, 10:02 pm
  #1073  
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I'm really getting tired of seeing "in this day and age" type remarks by all these government, law enforcement and supposed security professionals
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Old Dec 10, 10, 10:07 pm
  #1074  
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Originally Posted by GoingAway View Post
I'm really getting tired of seeing "in this day and age" type remarks by all these government, law enforcement and supposed security professionals
Agreed. What it comes down to is "In this day and age, we've more or less tossed out the constitution because we're scared sh!tless that someone might try to hurt us and we don't want to have our butts out in the open when it happens."
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Old Dec 11, 10, 7:04 am
  #1075  
 
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I've finally had a chance to completely review this thread. I'll not worry about the quotes, but wanted to address all the comments slamming Phil for standing up and not showing his ID. There are at least two other current threads (one mine) that include TSA using LEOs to demand that passengers provide ID when doing so is not required and may, in fact, be illegal.

In my case, I reluctantly provided ID because I was (at best) going to get thrown out of the airport and honestly believed I was about to be arrested. I did nothing wrong, did not cause ANY disturbance, did not raise my voice, did not insult anyone, etc. I simply and politely asked what my rights were (when I knew for a fact that the TSOs were not following TSA policy). Instead of a reasonable response, I was threatened. I chose to not to stand up for my rights and now feel a little cowardly for doing so. I also fear what the TSA is going to do with my personal information.

Why does this matter? Does this really have nothing to do with the TSA? I think not. The TSA is using LEOs as surrogate agents for harassing people into compliance. This, IMO, is illegal behavior and is directly related to the way TSA operates.

I personally hope Phil's case is not dismissed and the resulting acquittal/appeal will shine a huge public spotlight on TSA/LEO behavior. Either way, I hope he follows with a massive civil suit.

Some think it's OK for the government---at anytime and place---to demand ID, record the information, store it for unknown purposes, and harass people into compliance with government mandates. These people are usually called communists. YMMV.
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Old Dec 11, 10, 7:28 am
  #1076  
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Originally Posted by ScatterX View Post
I've finally had a chance to completely review this thread. I'll not worry about the quotes, but wanted to address all the comments slamming Phil for standing up and not showing his ID. There are at least two other current threads (one mine) that include TSA using LEOs to demand that passengers provide ID when doing so is not required and may, in fact, be illegal.

In my case, I reluctantly provided ID because I was (at best) going to get thrown out of the airport and honestly believed I was about to be arrested. I did nothing wrong, did not cause ANY disturbance, did not raise my voice, did not insult anyone, etc. I simply and politely asked what my rights were (when I knew for a fact that the TSOs were not following TSA policy). Instead of a reasonable response, I was threatened. I chose to not to stand up for my rights and now feel a little cowardly for doing so. I also fear what the TSA is going to do with my personal information.

Why does this matter? Does this really have nothing to do with the TSA? I think not. The TSA is using LEOs as surrogate agents for harassing people into compliance. This, IMO, is illegal behavior and is directly related to the way TSA operates.

I personally hope Phil's case is not dismissed and the resulting acquittal/appeal will shine a huge public spotlight on TSA/LEO behavior. Either way, I hope he follows with a massive civil suit.

Some think it's OK for the government---at anytime and place---to demand ID, record the information, store it for unknown purposes, and harass people into compliance with government mandates. These people are usually called communists. YMMV.
I agree -- this is exactly the issue. The TSA claims it has the authority to collect privacy information (called PII in the Privacy Act world) from a passenger. Here are some quotes:

TSA will collect information about the following categories of individuals: 1) individuals who violate, or are suspected of violating transportation security regulations, policies or procedures; 2) individuals whose suspicious activity resulted in BDO or LEO interview; 3) individuals whose identity must be verified or checked against Federal watch lists.
The information collected may include the full names of individuals, aliases and nicknames, date of birth, place of birth, age, sex, race, nationality, languages spoken, passport number, driver’s license number, and telephone number, home and business addresses; Social Security Numbers, height and weight, eye color, hair color, style and length, facial hair, scars, tattoos and piercings, clothing (including colors and patterns) and eyewear, description of personal carry-on and/or baggage items. The system also collects and compiles reports from Federal, state, local, tribal, or private sector security officials related to incidents that may pose a threat to transportation or national security. Additionally, the TSA Operations Center records telephonic communications between or among TSA and transportation security stakeholders or other law enforcement or security agencies regarding threats to transportation security. Callers receive notice that the call may be monitored or recorded.
The sources are TSA employees who collect information directly from the individual or from a LEO and transportation security stakeholders.
3.1 What information is retained?
TSA will retain transportation security incident information, including, where collected, information about individuals who violate, or are suspected of violating transportation security laws, regulations, policies or procedures; information about individuals whose suspicious activity results in BDO or LEO interview; or information about individuals whose identity must be verified or checked. Such information may include the full names of individuals, aliases and nicknames, date of birth, place of birth, age, sex, race, nationality, languages spoken, passport number, driver’s license number, and telephone number, home and business addresses; Social Security Numbers, height and weight, eye color, hair color, style and length, facial hair, scars, tattoos and piercings, clothing (including colors and patterns) and eyewear, description of personal carry-on and/or baggage items,

3.2 How long is information retained?
Most information in the Web EOC system will be retained for three years. The hard copy form used to collect name and address to verify the identity of individuals who do not bring identification to the TSA screening checkpoint at an airport will be retained for 30 days, unless enforcement action or litigation results, in which case the information will be retained in accordance with the appropriate NARA-approved records retention schedule.
6.1 Was notice provided to the individual prior to collection of information?
In instances where personal information is collected in order to verify identity, the individual is provided an 5 U.S.C. § 552(e)(3) notice prior to the collection of information. Where PII is collected as part of a criminal investigation, TSA will not provide notice and has previously published a Final Rule after public comment to exempt TSA from the notice requirement in such circumstances. In instances where TSA receives personal information as part of suspicious activity reports, the individual is unlikely to have knowledge that his/her information has been submitted to the system and there is no opportunity for TSA to provide notice. The following SORNs provide notice to the individual where TSA collects information associated with transportation security incidents: DHS/TSA 001, Transportation Security Enforcement Record System (TSERS), DHS/TSA 002, Transportation Security Threat Assessment System, and DHS/TSA 011, Transportation Security Intelligence Service (TSIS) Operational Files.

6.2 Do individuals have the opportunity and/or right to decline to provide information?
In some instances, an individual has the right to decline providing personally identifiable information. By way of example, individuals whose identity TSA must verify may decline to provide the information; however, failure to furnish the requested information may result in an inability to grant the individuals access beyond the TSA screening checkpoint. For personal information that may be associated with suspicious activity reports, there is no opportunity to decline to provide information.

6.3 Do individuals have the right to consent to particular uses of the information? If so, how does the individual exercise the right?
No.
PIA Notice

So, if you follow the bolded sections, one can easily draw these conclusions:

1. If you opt out, the TSA will collect your PII involuntarily using the justification that opting out is "suspicious behavior."

2. If you voluntarily decline to provide this information to the screener, they will call over a cop, which triggers the second reason to involuntarily collect your PII: A "LEO or BDO interview."

3. They do not have to disclose anything about why they are collecting this information and will not provide you with a written notice.

I didn't need to get this mad on a Saturday morning before I have even finished my first cup of coffee.

Phil -- No pressure, but, you and your attorneys have the opportunity to potentially change the course of history if you can turn the disorderly conduct charade into a prosecution of the TSA and its information collection tactics.
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Old Dec 11, 10, 8:00 am
  #1077  
 
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Originally Posted by FliesWay2Much View Post
I agree -- this is exactly the issue. The TSA claims it has the authority to collect privacy information (called PII in the Privacy Act world) from a passenger. Here are some quotes:

PIA Notice

So, if you follow the bolded sections, one can easily draw these conclusions:

1. If you opt out, the TSA will collect your PII involuntarily using the justification that opting out is "suspicious behavior."

2. If you voluntarily decline to provide this information to the screener, they will call over a cop, which triggers the second reason to involuntarily collect your PII: A "LEO or BDO interview."

3. They do not have to disclose anything about why they are collecting this information and will not provide you with a written notice.

I didn't need to get this mad on a Saturday morning before I have even finished my first cup of coffee.

Phil -- No pressure, but, you and your attorneys have the opportunity to potentially change the course of history if you can turn the disorderly conduct charade into a prosecution of the TSA and its information collection tactics.
FW2M: Thanks for this synopsis. I now fully understand why Phil is 100% correct and FH has missed the importance of this point. As I understand it, from your synopsis, once they start collecting anything, other than the TDC (apparently optional), it is to further a potential criminal investigation, and therefore, other than stating your name, the remainder is 5th Amendment protected and the first thing we should say after telling them our name, and if necessary address, is, I would like an attorney present before answering further questions.
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Old Dec 11, 10, 12:14 pm
  #1078  
 
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Originally Posted by ScatterX View Post
I simply and politely asked what my rights were (when I knew for a fact that the TSOs were not following TSA policy). Instead of a reasonable response, I was threatened.
Never ask what your rights are. They are not obligated to give you legal advice. I can certainly sympathize with you, but people in authority have been taught to never lose control of a situation. If they smell "blood in the water" (you not knowing your rights), it becomes a feeding frenzy.

Police and TSA can lie to you all they want, they have no obligation to tell you the truth. They use this to their advantage. They are not there to be your friend.

I call it the "Martha Stewart syndrome". The police will make up a lie about you or your situation, and when you try to defend yourself against that lie, you will slowly incriminate yourself. The more you talk, the more you can get yourself into trouble. They know this and use it all the time to get you to say something that will get you detained or arrested.
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Old Dec 11, 10, 2:02 pm
  #1079  
 
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While I generally agree with what you said, it isn't really applicable in my case. I was specifically asking if I was allowed to do something that TSA has clearly defined as policy (e.g., you rights include...). I wasn't asking about my rights in the sense of legal advice on an interpretation of the constitution.

TSA policy allows a witness of my choice. My request for this was denied. I asked why. I was told I had a witness (the second TSA guy). I asked if I had, in accordance with TSA policy, the right to my own witness. This is a fair question that deserved a serious answer, not lies, threats, and retaliation.

Originally Posted by Pluma View Post
Never ask what your rights are. They are not obligated to give you legal advice. I can certainly sympathize with you, but people in authority have been taught to never lose control of a situation. If they smell "blood in the water" (you not knowing your rights), it becomes a feeding frenzy.

Police and TSA can lie to you all they want, they have no obligation to tell you the truth. They use this to their advantage. They are not there to be your friend.

I call it the "Martha Stewart syndrome". The police will make up a lie about you or your situation, and when you try to defend yourself against that lie, you will slowly incriminate yourself. The more you talk, the more you can get yourself into trouble. They know this and use it all the time to get you to say something that will get you detained or arrested.
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Old Dec 13, 10, 9:12 am
  #1080  
 
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Docket shows new trial date of January 20, 2011

There was no hearing last Thursday, but the docket now shows a trial date of January 20, 2011, subject of course to the possibility of further postponements. This is consistent with what I was told by prosecutor Dan Rislove at the courthouse on Thursday.

The Identity Project FAQ has been updated with links to local news reports about the case and more information for the public or other journalists attending the trial.

Last edited by ehasbrouck; Dec 13, 10 at 3:20 pm
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