Abilene Police do not Understand Lawful Detention or Failure to Identify

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This is a contact between officers of the Abilene Police Department and an individual who identifies himself as Bobby Ivester (at about 0:25).  Ivester is openly carrying a rifle, allows the officers to inspect the weapon, but declines to produce identification when the officer requests it at about 1:30 in the video.  The second officer explains to Ivester that he is being detained.

The reason for the detention?  “Because we got a call on you” (at 2:40).  Unfortunately, both Ivester and the officers do not understand Texas law.

Ivester is arguing that he is not being lawfully detained.  I disagree.  I believe that he is being lawfully detained (initially, at least).  The 911 call about a man with a gun, combined with the officers finding Ivester with an openly carried rifle, provides a reasonable suspicion that Ivester may be committing the offense of disorderly conduct.  See Tex. Pen. Code § 42.01(a)(8), displays a firearm in a public place in a manner calculated to alarm.  Please note that I did not state that Ivester was committing that violation, clearly he was not, but that doesn’t negate the fact that the officers had reasonable suspicion to make the contact and detain Ivester.

Both Ivester and the officers are under the impression that if the police detain someone, that individual has to identify themselves to the officer.  That is simply incorrect.  Tex. Pen. Code § 38.02 is very clear, an offense is only committed if the detained person lies about who he is (or his date of birth or residence).  Refusing to provide identifying information is not an offense.

At about 5:20 in the video, the second officer grabs the camera and handcuffs Ivester.  At 6:55 in the video, an officer says that they don’t know what Ivester’s intent with the gun is.  That’s true.  It also doesn’t matter.  The officers are not allowed to presume that Ivester is a felon or otherwise unable to carry a rifle.  United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).  The officers try this argument anyway, assuming that it is their “duty” to determine if Ivester has the right to carry the rifle.   Uh, guys–his right to carry is called the Second Amendment.

At this point, Ivester is being unlawfully detained.  The officers have already determined that Ivester was not committing the offense of disorderly conduct and are now just fishing for his identification to try and charge him with something else.  They have improperly extended the contact, see Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004) (“once the original purpose for the stop is exhausted, police may not unnecessarily detain [individuals] solely in hopes of finding evidence of some other crime”).

If you disagreed with what the officer’s did, you can contact them at:

  • Chief Stan Standridge, stan.standridge@abilenetx.com, 325-676-6600
  • Assistant Chief Mike Perry, mike.perry@abilenetx.com, 325-676-6600 (over Uniformed Services)
  • Officer George Spindler, apdpio@abilenetx.com, 325-437-4529 (Public Information Officer)
  • Facebook; webpage

Related posts:

H/T:  Jim Morriss

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The Last of Three Abusive Bridgeport, CT Officers Indicted

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In 2011 following a chase, Bridgeport, Connecticut Police Officers tased and arrested Orlando Lopez-Soto.  The two officers initially involved, Elson Morales and Joseph Lawlor, repeatedly kicked Lopez after he was laying flat on the ground, compliant.  They pleaded guilty to federal charges of deprivation of rights under the color of law, a violation of 18 U.S.C. 242.  Each face up to a year in prison.

Clive Higgins did not take the deal and was indicted for the violation with bodily injury.  He faces up to ten years in prison and pleaded not guilty.  He has been placed on unpaid suspension by his department, which recently settled with Lopez for $198,000.  Lopez is currently in prison on a 5-year sentence on drug and gun charges.

What is interesting in this case is that Higgins is being represented by a federal public defender.  Why isn’t he being represented by a union attorney?  I can think of two likely reasons, first, that he was not a member, in which case he is an idiot.  Second, that the union cut him loose, not wanting to defend him, in which case they are spineless.  There are, of course, other possibilities, so there may be a good explanation, but that is just my read on the situation.

In any event, all three are pretty much toast, and rightfully so.  While I do not have a problem with force when it is justified, unjustified force must be identified and prosecuted.

Los Angeles Police Decide that Aerial Photos Violate Privacy…

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But only if it is their privacy, not yours.

Daniel Saulmon (Tom Zebra) was filming again, using his drone, at the LAPD Hollywood station.  The police didn’t like it.

What is hilarious is that the same expectation of privacy that they are claiming is the expectation that they state you, as a private citizen, do not have.

At 4:04 the first officer tried to tell Daniel that he could not fly his drone over police department property.  But these same officers want to be able to fly over other peoples’ property, observe what is below, and obtain search warrants based on those overflights.  That’s legal, according to the U.S. Supreme Court, see California v. Ciraolo, 476 U.S. 207 (1986) (mere fact that individual has taken measures to restrict some views of his activities does not preclude police officer’s observations from public vantage point where he has right to be and which renders activities clearly visible).

Later in the video, the sergeant tries to tell Daniel that he will be charged with trespass, even if he keeps the drone over the sidewalk.  Ludicrous.

In other words, what the police in LA want is to be able to look in your backyard, but where you can not look into theirs.

 

Elizabeth Daly Settles Lawsuit against Virginia

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In 2013 a University of Virginia student, Elizabeth Daly, was arrested for fleeing police and assault on police.  She had just bought a LaCroix-12PK-PURE12-pack of LaCroix sparkling water and undercover agents of the Virginia Alcoholic Beverage Control attempted to contact her in the parking lot.

Of course, none had on anything that identified them as police and one of the morons drew his pistol while another of the morons tried to bust in the window.

Naturally Ms. Daly was terrified, believing that she was being attacked by criminals.  So she tried to flee in her SUV, was arrested, and jailed.  The charges were dropped by someone with more sense than the officers and Daly filed suit.

Now the State of Virginia has settled the suit for $212,500 while admitting no wrongdoing.  Yeah, right.

Virginia settled the suit because they had just lost a motion for dismissal based on qualified immunity and a motion to quash a subpoena for the internal investigation conducted over the incident.  First, the court found that the amount of force used exceeded that which would be appropriate for a Terry stop and that the agents would need to show probable cause, not mere reasonable suspicion.  Second, the internal report likely identified the two agents who violated policy and were disciplined by the agency.  Combined, the State could see the writing on the wall and decided to settle.

The agents that thought this was a good idea were Special Agents Lauren Banks, Armon Brown, John Cielakie, Andrew Covey, Jonathan Pine, and Kevin Weatherholtz.  The supervisor present was Special Agent in Charge John Taylor.

The state has since changed its policies and procedures for these type operations, and the entire ABC has been under review, including legislative proposals to strip the agency of its law enforcement function.

The Broken Windows at the Precinct House

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Mark Draughn over at the Windy Pundit blog just pointed out something that was remarkably insightful.

If the “Broken Windows” concept works on society to reduce a culture of lawlessness, then why don’t the police use it in their disciplinary process?  Why do we tolerate petty misconduct from police, where it inures our senses to gross misconduct?

This is not a revolutionary concept.  The late Jack Maples, part of NY Police Commissioner Bill Bratton’s staff during his first tour had the right ideas about this issue.  Maples wrote that:

The [police] leader must back the cops when they’re right, train them when they make mistakes despite good intentions, and hang them when they betray the public’s trust.

Jack Maples & Chris Mitchell, The Crime Fighter: How You Can Make Your Community Crime Free 244 (2000).

Maples was a firm believer that you had to take corrective action against the police, as well as criminals if you wanted to make an impact.  He also understood that while officer safety was important, it was not the most important part of police work. He said:

At the end of the day, the public’s safety is paramount.  Strike that.  At any time of the day, the public’s safety is paramount.

Id., at 239.

Mark, at the end of his self-named rant (I would disagree that it is a rant), says:

If “broken windows” works, they should try it on cops. Maybe if they prosecuted the crap out of these cops and hit them with truly pants-shitting prison sentences, it would discourage the NYPD’s culture of lawlessness.

This post was picked up by Scott Greenfield (Simple Justice), who expanded on the theme.  Scott correctly notes that it is Bratton’s job to make sure that the police treat the public with respect, not to lecture the public on what they need to do in order to make things better for the police.  Scott points out that if Bratton really believes in the Broken Windows theory, then he should apply it first to his own department, not to the public.

Scott is completely right on this, but I sincerely doubt that Bratton will see it this way.  He’ll look at it just like the San Antonio Police Chief, William McManus, looks at it.  It’s OK to beat an innocent man because he fell on his hands.  He’s firmly bought into the first rule of policing and has completely disregarded that the safety of the public should come first.

I suppose I’m lucky that I wasn’t the one taking pictures, as I probably would have been killed in the encounter.  Let me explain.  A plainclothes officer comes charging at me with an angry look on his face and something in his hand?  I’m drawing my Kimber.  It’s what I’ve been conditioned to do after twenty years as a police officer, and what many others are likely to do in the same situation.  The two SWAT officers show up shortly behind the plainclothes officer, and I would probably be shot.  But for the sake of argument, lets say that did not happen, but that I shot the first officer and surrendered to the uniformed officers.

Would McManus have the same viewpoint, that he did not see anything wrong here?  It’s still a case of mistaken identity, it is just that his officer suffered the brunt of the encounter.

Fortunately, McManus is leaving the job, to take a retirement security director gig and to take care of his new kittens.

The problem is that police administrators do not see the disconnect, can not see it.  It takes an innovator, someone like Jack Maples, someone who is willing to shake up the system, to address this issue.  It means teaching new officers that yes, it is vitally important for them to go home at the end of the shift, but it is even more important to protect the public, to make sure that that they go home safely.

 

 

Round Rock Police Violate Photographer’s Civil Rights – UPDATED

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Again, we have a case of police in Texas not understanding Tex. Pen. Code § 38.02, or the idea of lawful detention.

In this video, the photographer is taking pictures of the Round Rock, Texas Police station when he is approached by Officer Paul Hernandez who advises him he is being detained until he produces identification.  First, under Texas law, a person is not required to identify themselves unless they are under arrest, see § 38.02(a).  Officers are not allowed to demand identification without reasonable suspicion that the subject is involved in criminal activity, Brown v. Texas, 443 U.S. 47, 51 (1979); Wade v. State, 442 S.W.3d 661, 670 (Tex. Crim. App. 2013).  Officer Hernandez stated (at 6:26, part I) that when asked to identify by an officer, refusal is a crime, which is not true.  A person being detained is under no obligation to identify themselves, see § 38.02(b).

“[W]hen they have no basis for reasonable suspicion, officers may ask questions . . . and request identification, ‘as long as the police do not convey a message that compliance with their requests is required.'”  St. George v. State, 197 S.W.3d 806, 819 (Tex. Crim. App. 2006).  Here they handcuffed and searched the photographer without any reasonable suspicion.

What is even worse is that after the supervisor gets there, the officers condition the photographer’s release on whether or not he’ll “cooperate” with the officers by providing identification (at 6:15, part II).  At 8:20 (part II), the photographer requests identifying information from the officers present and Sergeant Mike Osborn informs him that all he needs is the sergeant’s information.  That’s all well and good, but in all likelihood violates their own department policies.  The Round Rock PD is accredited by CALEA, and CALEA standard 22.2.7 requires that police employees identify themselves on request.  Additionally, the detention was unlawful, as was the demand for identification.

If you are concerned about this, you may contact the following:

  • Chief Allen Banks, abanks@roundrocktexas.gov, 512-218-5521.
  • Lieutenant Robert Rosenbusch, Internal Affairs, rrosenbusch@roundrocktexas.gov, 512-218-3262.
  • Lieutenant Larry Roberson, Accreditation Manager, lroberson@roundrocktexas.gov, 512-218-6614.
  • Sergeant Mike Osborn, Patrol, mosborn@roundrocktexas.gov, 512-671-2853.
  • Officer Paul Hernandez, Patrol, phernandez@roundrocktexas.gov.

If you are concerned about this from the accreditation standpoint, you may contact Stephen W. Mitchell, who is the Regional Program Manager for CALEA.  His number is 703-352-4225, ext. 29.

H/T: Carlos Miller & PINAC

UPDATE:

Picking up complaint form and filing complaint.

 

SCOTUS Requires a Warrant to Search a Cellphone

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The Supreme Court, in an opinion by Chief Justice Roberts, stated that the Fourth Amendment requires a search warrant to look at the digital contents of a cell phone that the police have seized incident to arrest.  The opinion is Riley v. California, No. 13-132, 573 U.S. ___, ___ S. Ct. ___, 2013 WL 2864483 (June 25, 2014).

The decision was unanimous, with a concurrence by Justice Alito.

Basically, the Court took two cases, Riley and United States v. Wurie, No. 13-212, that had reached opposite conclusions and consolidated them.  In Riley, a driver was stopped for expired registration and having a suspended driver’s license.  His car was impounded and inventoried, and two handguns were found.  A search of his cell phone incident to arrest and other factors led police to believe that Riley was a member of the Bloods street gang.  Following a warrantless search of the phone, photographs were located tying Riley to a gang shooting and he was charged with attempted murder and several others crimes.  The trial court denied a motion to suppress the evidence and the Ninth Circuit affirmed.

In Wurie, police were conducting routine surveillance and saw Wurie make a drug transaction.  Wurie was arrested and his cell phone seized.  They searched the phone (an older flip phone) and eventually obtained a search warrant for Wurie’s house based on the warrantless search of the phone.  Police seized 215 grams of cocaine, a firearm and other drugs, and cash.  Wurie’s motion to suppress was denied, but the First Circuit reversed and vacated the conviction.

Roberts held that the search incident to arrest exception (from Chimel v. United States, 395 U.S. 752 (1969)) did not include the digital contents of a cell phone.  Police may examine the phone to make sure that it is not a weapon, but may not search the contents.  The claim that the search is necessary to prevent the destruction of evidence is also not valid.  Police may place the phone in a Faraday bag to prevent outside signals from reaching it, may turn off the phone, or may remove the battery.

Roberts cited Judge Learned Hand who said in 1926 that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” Riley, slip op. at 20 (internal citation omitted).  Searching a cell phone is ransacking the house.

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.Id., slip op. at 28 (emphasis added).

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