US Border Patrol checkpoint on I-10 in west Texas
Mar 19, 2011, 1:31 am
#136
FlyerTalk Evangelist
Join Date: Aug 2005
Location: Chicago
Posts: 11,513
Mar 19, 2011, 3:48 am
#137
Join Date: Feb 2010
Posts: 1,347
You miss my point; I don't expect a Judge to overrule the Supreme Court. I would expect a Judge to rule such a stop constitutional. Whether the Judge would let the case go beyond a PC hearing (based on the reading of "forcible" in the statute) is a closer question. Assume the Judge decides to let a Jury hear the case (or a Judge sitting as trier of fact).
The jury (or Judge) hears the case and acquits. That's it. Case closed. No court that has any say or power to change things-- in this case the Supreme Court though I don't put much past the 9th Circuit-- will never hear the case.
So, while a Judge will make the initial determination that determination will not be reviewed in the case of an acquittal.
I am aware of how the court system works; my point was that the issue is unlikely to be reviewed by a higher court if a jury were to acquit in such a case. There would be no standing to appeal the initial determination. The only to sidestep this is to plead guilty subject to an issue on appeal, but I can hardly see one doing that in a case in which one would have a good shot at acquittal. The Judge's initial determination is meaningless since it isn't binding on any other courts.
And the jury determines guilt only-- or lack thereof-- not guilt or innocence. A jury does not declare someone innocent, only not guilty. The law presumes innocence until proven guilty, so in the eyes of the law the defendant is innocent-- but not the jury. Had a jury found OJ "innocent" instead of "not guilty," the civil suit probably would have been barred.
It is important to remember that your use of force policy must yield to the 4th Amenment and not the other way around (I'm sure you are aware of this). It is also important to remember tha the law evolves over time.
There is a difference between RS for a temporary detention and RS for a search. Making a person put down a cell phone camera on RS to detain alone (but no RS for a search-- i.e. missing the "armed and presently dangerous" component) might push the envelope in the view of a court. Courts are well aware that LE doesn't like to be filmed and are constantly ruling in favor of the filmer as long as the filmer isn't interfering with the investigation or being threatening.
Cameras and cops are a new issue to the courts and it hasn't been reviewed extensively (so qualified immunity might attach in any event). Your position that anyone you have RS to detain can't film you because they are holding a small object in their hand might not come down on your side. And please don't invoke the cell phone gun. "Keep your hands out of your pockets" and "put your small camera phone down" are two very different commands even if they both have an impact on your perception of your safety and a Court might find as such. It isn't necesarily the same as any other object.
The AUSA would drop the case for the obvious reason-- the exact reason you would have brought the charge in the first place according to your post-- and told you not to do it again.
And that's why LE continues to punish people for exercising this right, even when that right is properly invoked far from any administrative search.
It is the same reason cops don't like cameras-- it makes their job more difficult because it adds a new dimension of accountability. That a tape doesn't tell the whole story is true. Cops don't always tend to tell the whole story either (and studies say most will completely lie when it suits them).
The jury (or Judge) hears the case and acquits. That's it. Case closed. No court that has any say or power to change things-- in this case the Supreme Court though I don't put much past the 9th Circuit-- will never hear the case.
So, while a Judge will make the initial determination that determination will not be reviewed in the case of an acquittal.
I am aware of how the court system works; my point was that the issue is unlikely to be reviewed by a higher court if a jury were to acquit in such a case. There would be no standing to appeal the initial determination. The only to sidestep this is to plead guilty subject to an issue on appeal, but I can hardly see one doing that in a case in which one would have a good shot at acquittal. The Judge's initial determination is meaningless since it isn't binding on any other courts.
And the jury determines guilt only-- or lack thereof-- not guilt or innocence. A jury does not declare someone innocent, only not guilty. The law presumes innocence until proven guilty, so in the eyes of the law the defendant is innocent-- but not the jury. Had a jury found OJ "innocent" instead of "not guilty," the civil suit probably would have been barred.
It is important to remember that your use of force policy must yield to the 4th Amenment and not the other way around (I'm sure you are aware of this). It is also important to remember tha the law evolves over time.
There is a difference between RS for a temporary detention and RS for a search. Making a person put down a cell phone camera on RS to detain alone (but no RS for a search-- i.e. missing the "armed and presently dangerous" component) might push the envelope in the view of a court. Courts are well aware that LE doesn't like to be filmed and are constantly ruling in favor of the filmer as long as the filmer isn't interfering with the investigation or being threatening.
Cameras and cops are a new issue to the courts and it hasn't been reviewed extensively (so qualified immunity might attach in any event). Your position that anyone you have RS to detain can't film you because they are holding a small object in their hand might not come down on your side. And please don't invoke the cell phone gun. "Keep your hands out of your pockets" and "put your small camera phone down" are two very different commands even if they both have an impact on your perception of your safety and a Court might find as such. It isn't necesarily the same as any other object.
The AUSA would drop the case for the obvious reason-- the exact reason you would have brought the charge in the first place according to your post-- and told you not to do it again.
And that's why LE continues to punish people for exercising this right, even when that right is properly invoked far from any administrative search.
It is the same reason cops don't like cameras-- it makes their job more difficult because it adds a new dimension of accountability. That a tape doesn't tell the whole story is true. Cops don't always tend to tell the whole story either (and studies say most will completely lie when it suits them).
MaximumSisu: This is what I was referring to when I posted to you earlier. This topic has consumed the better part of the afternoon and much of the evening for me. In order to properly discuss this type of topic at least for me takes an incredible amount of time. I do a lot of research to ensure that I am very familiar with what I am saying. This many times involves me dragging out my reference materials that I use for training, calls to other officers that are more familiar with a particular topic, even calls to litigation if I really don't know the answer. I put in well over forty hours a week on my job. I used to have the time to devote to this. However, this is very difficult with my new assignment and my family finally joining me at my new post. I will do the best I can but I don't have the time that I used to but I don't get paid for this and my family comes first.
FB
Mar 19, 2011, 4:31 am
#138
Join Date: Oct 2007
Programs: WN RR, DL SkyMiles, CO Captain America
Posts: 15
...I do a lot of research to ensure that I am very familiar with what I am saying. This many times involves me dragging out my reference materials that I use for training, calls to other officers that are more familiar with a particular topic, even calls to litigation if I really don't know the answer...
Last edited by planedude86; Mar 19, 2011 at 4:39 am
Mar 19, 2011, 6:13 am
#139
FlyerTalk Evangelist
Join Date: Mar 2008
Location: DFW
Posts: 28,114
I am not sure where you got that from. The text you have quoted is all in relation to someone under investigative detention and why I would not allow that person to have a solid object (the video camera) to hit me with in their hands. They don't have to answer the LEO questions at all.
In relation to a Border Patrol checkpoint SCOTUS as determined that it is reasonable seizure under the 4th amendment to determine citizenship or status. Again this is taken directly from the decision.
The court determined that the national interest out weigh the 4th amendment privacy concerns.:
Their words not mine. The court ruled that stopping people at immigration checkpoints to determine citizenship and/or status by asking questions and in some cases to produce documents evidencing the right to be in the United States. The subject is required to answer those questions related to citizenship. However, this is very narrowly limited to Immigration checkpoints and Ports of Entry. The subject is not required to answer any other questions that do relate to citizenship. This only applies at the checkpoint. In encounters the occur in places other than a Immigration Check point or a Port of Entry. The subject doesn't have to answer anything.
I didn't make the rules or the decisions. I just operate under the parameters that the rules and decisions create. It could change tomorrow and that would be OK to. It just changes how I do about my job.
FB
In relation to a Border Patrol checkpoint SCOTUS as determined that it is reasonable seizure under the 4th amendment to determine citizenship or status. Again this is taken directly from the decision.
The court determined that the national interest out weigh the 4th amendment privacy concerns.:
Their words not mine. The court ruled that stopping people at immigration checkpoints to determine citizenship and/or status by asking questions and in some cases to produce documents evidencing the right to be in the United States. The subject is required to answer those questions related to citizenship. However, this is very narrowly limited to Immigration checkpoints and Ports of Entry. The subject is not required to answer any other questions that do relate to citizenship. This only applies at the checkpoint. In encounters the occur in places other than a Immigration Check point or a Port of Entry. The subject doesn't have to answer anything.
I didn't make the rules or the decisions. I just operate under the parameters that the rules and decisions create. It could change tomorrow and that would be OK to. It just changes how I do about my job.
FB
Mar 19, 2011, 8:11 am
#140
In Memoriam
Join Date: Jul 2010
Posts: 361
MaximumSisu: This is what I was referring to when I posted to you earlier. This topic has consumed the better part of the afternoon and much of the evening for me. In order to properly discuss this type of topic at least for me takes an incredible amount of time. I do a lot of research to ensure that I am very familiar with what I am saying. This many times involves me dragging out my reference materials that I use for training, calls to other officers that are more familiar with a particular topic, even calls to litigation if I really don't know the answer. I put in well over forty hours a week on my job. I used to have the time to devote to this. However, this is very difficult with my new assignment and my family finally joining me at my new post. I will do the best I can but I don't have the time that I used to but I don't get paid for this and my family comes first.
FB
FB
Mar 19, 2011, 8:28 am
#141
In Memoriam
Join Date: Jul 2010
Posts: 361
I don't believe this is what you meant to write (but I am worried that it is what you believe) --- would the agents be justified in beating or shooting the traveler because "he started it"?
Mar 19, 2011, 1:56 pm
#142
FlyerTalk Evangelist
Join Date: Aug 2005
Location: Chicago
Posts: 11,513
Take your time.
----------------------------------------------
May I suggest that in the future you type your long, well-thought-out posts in a word processor and then copy and paste?
-----------------------------------------------
I will just add that Justice Thomas has said he would reverse Martinez-Fuerte and Stiz. I don't know exactly how the others feel, though I recall that Scalia came down on the side of these checkpoints. If he knew that they are now used as fishing expeditions now, he might reconsider. He pretty expressed his views of the give-an-inch, take-a-mile LEO mantra in Gant if I recall correctly . . . I haven't read it in a while.
Mar 19, 2011, 3:29 pm
#143
Join Date: Dec 2007
Programs: DL, WN, US, Avis, AA
Posts: 662
.
[much deleted]
What follows on the tape is the part that is difficult to determining legality from the tape alone. This is because it would depend heavily on what is in the mind of the agents on scene. We do not have the benefit of their reports or the ability to ask them what they believed at the time.
[much deleted]
The problem with the video is that we do not have insight as to what the agents were thinking at the time and no way to question them as a judge would to determine that.
[much more deleted]
[much deleted]
What follows on the tape is the part that is difficult to determining legality from the tape alone. This is because it would depend heavily on what is in the mind of the agents on scene. We do not have the benefit of their reports or the ability to ask them what they believed at the time.
[much deleted]
The problem with the video is that we do not have insight as to what the agents were thinking at the time and no way to question them as a judge would to determine that.
[much more deleted]
Mar 19, 2011, 4:01 pm
#144
Join Date: Dec 2010
Posts: 2,425
-----------------------------------------------
I will just add that Justice Thomas has said he would reverse Martinez-Fuerte and Stiz. I don't know exactly how the others feel, though I recall that Scalia came down on the side of these checkpoints. If he knew that they are now used as fishing expeditions now, he might reconsider. He pretty expressed his views of the give-an-inch, take-a-mile LEO mantra in Gant if I recall correctly . . . I haven't read it in a while.
I hope you're right...
Mar 19, 2011, 4:19 pm
#145
Join Date: Sep 2008
Location: Los Angeles, CA
Programs: AA Gold, Marriott Plat
Posts: 456
Mar 19, 2011, 7:47 pm
#146
FlyerTalk Evangelist
Join Date: Mar 2008
Location: DFW
Posts: 28,114
Mar 19, 2011, 9:20 pm
#147
Join Date: Dec 2010
Posts: 2,425
I would not give permission to search the car though, as I think I'm entitled at least as much privacy and 4th Amendment protection as criminals are granted.
The main issue is with defining the border as extending 100 miles deep. That is ludicrous.
Mar 20, 2011, 6:36 pm
#148
Join Date: Dec 2007
Programs: DL, WN, US, Avis, AA
Posts: 662
Frankly were I to arrive at checkpoint and the agent refused to promptly answer that question with a direct"'yes" or "no" it would cause me to suspect that the agent was either: a) incompetent (a potentially dangerous situation for me) or b) conducting an operation that he himself believed was of dubious legality (a very dangerous situation for me).
I also believe that my suspicion would be "reasonable".
Which alternative do you think was most likely at play in the video in question?
Last edited by T-the-B; Mar 20, 2011 at 6:37 pm Reason: improve clarity
Mar 20, 2011, 7:55 pm
#149
Join Date: Aug 2010
Location: YYZ
Programs: AC Aeroplan - Elite Status. DL Skymiles - Regular Status
Posts: 509
Just out of curiosity (I will probably never drive down in that part of the country), what happens in the case of a non US citizen?
My Canadian passport doesn't have any stamps of admission on it (I use NEXUS)..
Then again another question... Would they wave members of trusted traveler programs through without questions?
My Canadian passport doesn't have any stamps of admission on it (I use NEXUS)..
Then again another question... Would they wave members of trusted traveler programs through without questions?
Mar 20, 2011, 8:22 pm
#150
Join Date: Oct 2007
Location: Catania, Sicily/South Jersey (PHL)/Houston, Texas/Red Stick/airborne in-between
Programs: United Global Svs, AA PlatPro, WN RR, AZ/ITA Freccia, Hilton Diam, Bonvoy Gold, Hertz Prez, IHG
Posts: 3,548
Just out of curiosity (I will probably never drive down in that part of the country), what happens in the case of a non US citizen?
My Canadian passport doesn't have any stamps of admission on it (I use NEXUS)..
Then again another question... Would they wave members of trusted traveler programs through without questions?
My Canadian passport doesn't have any stamps of admission on it (I use NEXUS)..
Then again another question... Would they wave members of trusted traveler programs through without questions?
In every stop I was driving and I was asked "All all of you US citizens" (or something very close to that) and I replied I am and they are Italian, or he is BRitish, or they are Spanish and Dutch. Then it was "Have a nice day" and I drove on.
Ciao,
FH