Cop Repellant

[Keith Rogan]

>>>>I fail to see what the hubbub is. You get behind the wheels, loaded, and you are guilty of wanton endangerment.<<<<

Right, and if you deal crack out of your home the same argument can be made so why not allow cops to go door to door and roust people who look suspicious?
Knock, knock: "Sir, that oil stain on your driveway violates local pollution ordinance 2277 so step out here while we handcuff you and pat you down - would you mind if we searched your house for drugs or guns or are you going to be "suspicious" and not cooperate?

I don't think anyone here is arguing that a cop shouldn't be able to investigate a crime when he has REAL probable cause - if the guys smells of booze or is obviously intoxicated or even operating his vehicle in a suspect manner. The issue is whether such shakedowns should be automatic, whether you can get pulled over for any reason (and a cop can ALWAYS find a reason) and then be rousted on the side of the road. Sorry, but that is not only chicken****, it is a violation of the 4th amendment and if we are going to play "favorites" with the Bill of Rights, then we are no better than the gun grabbers.

[Jhp147]

Gotta learn the "reply with quotes" thing some day. Failing that:

"...don't see any reason for a citizen for a citizen stopped on a routine traffic violation to get out." I don't have a copy of Pennsylvania vs. Mimms, but going on strictly recollection, I think the officer has to have *something else* to legally get them out. Anybody help me on this for sure.
"....the first thing that the cop is going to do is pat you down...."
With all due respects, Keith....BRAVO SIERRA. An officer may indeed pat you down for weapons (absent PC to look for contraband, which is another thread entirely) but if he finds anything it WILL NOT BE ADMISSIBLE IN COURT as he violated your 4A rights unless he is doing a "Terry pat-down" (as in Terry v. Ohio) which allows officers to check a person they are in contact with by patting outer clothing for weapons....IF THEY CAN ARTICULATE WHY THEY NEED TO DO IT. Cops don't have the right to ''stop and frisk," contrary to common opinion.
"....I will grant that if a violation is one associated with....probable cause, etc."
B-I-N-G-O!
That is indeed what I have been trying to get across.
"being pulled over for speeding...etc.....is a shakedown."
Agreed. I need to look at the Mimms case again, but I don't think you have any fear of that. As I said above, being stopped, getting out, and sure as heck getting patted down require additional observations/articulation of observed fact by the officer. I think your lack of knowledge of what is indeed proper is creating an unreal fear.
And as for your comparison of how a car stop and subsequent search and a search of your home can work the same way(and you even threw in your gratuitous and illegal pat down AND handcuffing to make it sound worse), it can't. There are about a million cases that detail the differences and why. Probable cause and it's little brother, reasonable suspicion, are two different things, and that is only one tiny segment of the rules of search and seizure. If you had access to and read the monthly bulletins containing case law and decisions of whether or not officers did or didn't have cause to effect a search under given circumstances, I'm sure you would agree that more often than not, the police lose when common sense says otherwise. I am comfortable that the courts are preventing a police state in this area of the law. I'm sure the NACDL differs, and everybody is welcome to their opinion. The problem is that this is a complicated area of the law, and even lawyers disagree on many points. The other problem is that most "normal" people get all their law training off of TV cop shows or from five minute conversation with a friend who is a lawyer (and probably a probate lawyer, at that) while waiting for another round, or their name to be called at the ice cream store or whatever. Unless you have at least taken a police academy level course and had some experience in this, you may be easily misled. Nobody would think of themselves as knowing **it about medicine or giving medical advice from watching ER, but the world is full of amateur lawyers. Be careful.

[Keith Rogan]

>>>>>I don't think you have any fear of that. As I said above, being stopped, getting out, and sure as heck getting patted down require additional observations/articulation of observed fact by the officer. I think your lack of knowledge of what is indeed proper is creating an unreal fear. <<<<<

No, it's not an unreasonable fear at all. Cops are trained through long practice to create just such "probable cause" to justify any action they take. The subject acted "furtive", the subject was "armed" (had a pen-knife in his pocket), there was an "object' sticking out from under the seat that could have been a weapon, drugs, whatever, the subject fit the description of a suspect we were looking for - ie: he was a "white male".


>>>>Cops don't have the right to ''stop and frisk," contrary to common opinion. <<<<

In effect, they do, because probable cause has become a joke! They can do whatever they want and justify their actions with the standard justifications that are used every day in every court in the land.



>>>>>And as for your comparison of how a car stop and subsequent search and a search of your home cannot work the same way, you will just have to trust me, it can't. <<<<

No, it can't RIGHT NOW. But it wasn't long ago that you had the same 4th Amendment protections in your car as you do in your home. Those rights have been whittled away in an incremental fashion and no longer exist.
It is naive in the extreme to think that the same forces aren't at work across the board. When you defend one abuse of civil liberties you just open the door for the next step in the erosion of those liberties.

I would think that the incremental destruction of Second Amendment rights would be recognized by people on this board when the same lessons are applied to other rights. I guess not.

[Jhp147]

Okay, Keith. I give, you win. You obviously have more law enforcement knowledge than cops do, including me with my 22 years. The various actions you are describing are called "perjury." Contrary to your and Alan Dershowitz's opinion, we are not trained to commit this particular felony. Your comment about doing what they want and justifying it later can be easily argued against....No they don't. Gratuitious assertion/gratuitous denial. Fair. As for the search of car/vs. home, even you said "it can't right now." That is what I am talking about. Right now. And I am also talking lawful, legal and correct actions, not misdeeds, mistakes, and felonies commited. The things you mention and rightfully fear are just that, misdeeds and felonies. Please don't confuse your opinion of what is right or what goes on with what is lawful.
I hope you can see the difference between the two.
I neither condone, practice, or will cover for any officer who violates a person's rights and/or combines with this perjury as justification. The cops I associate with all operate this way, contrary to your assertion that we all do it constantly. Pretty broad brush you are painting with. You must be in contact with the cops a lot to know what they all do.
I am not saying that a mistake has never been made, that a law was never violated by an officer. I am only saying that this is the exception, not the daily an ongoing practice you assert.
Good day.

[Keith Rogan]

>>>>The various actions you are describing are called "perjury."<<<<

Yup, but perjury has to be proven in a court of law doesn't it? And who is to say whether a subject made a "furtive movement" that justified further action?

>>>>Please don't confuse your opinion of what is right or what goes on with what is lawful. I hope you can see the difference between the two.<<<<

Of course I do. And I don't mean to paint every cop with the same broad brush. To put it succinctly, we've moved from a "probable cause" that was objective (he saw a gun sticking out of a pocket), to one that is totally subjective where things like "furtive movements" or "suspicious objects" justify these actions.

>>>>I am not saying that a mistake has never been made, that a law was never violated by an officer. I am only saying that this is the exception, not the daily an ongoing practice you assert. <<<<

I beg to differ. As soon as you ask somebody to step out of their car during a routine traffic stop you're doing it - do you deny that you do this routinely? There is no Constitutional Amendment that has broadened police powers, and if there were I'd refuse to recognize it. You guys do what you do because a long and tenous chain of court rulings have slowly whittled away our rights (and broadened your powers), to do what you do.
That doesn't make it right, it only makes it legal.

[deanf]

All this recitation of case citations is not at all relevant to the discussion at hand. None of that information can be used by the motorist on the street who is staring down the barrel of a 3-cell mag light at 23:48 hours on the side of the road. Even if the motorist thinks he has all the relevant cases in his favor down pat, and can recite them perfectly, the officer isn't going to care, and the motorist still doesn't know if there might be some recent court decision that will trump the decisions he's familiar with. The motorist is simply imtimidated by the officer because he's an officer, and has the power to legally make the motorist's life miserable even though no crime was committed.

Cops just should not be shaking people down, even if the courts approve of the procedure with which the shake is performed. It's the attitude of the police that needs to be changed. Just because you have the authority to perform a certain action, does not mean that action is moral or correct, or that you should take every opourtunity to exercise your authority in that area.

[Justin Moore]

Horrible video of VA officers doing a traffic stop of some sort:

http://www.infowars.com/video/a_newm...ty1st_slow.ram
http://www.infowars.com/video/a_newm...sting_slow.ram
http://www.infowars.com/video/a_newm.../laws_slow.ram
http://www.infowars.com/video/a_newm.../them_slow.ram

The officers even question whether or not copy of the US Constitution in the woman's car could be used as evidence of 'resisting arrest' and also wonder if can be seized as evidence.

You'll need the free RealPlayer from http://huxley.real.com/real/player/p...1&dc=715714713 to watch this.

I'll refrain from further comment, till you guys watch it yourself. Its pretty apalliing really. The officers even admit they had no reason to stop the woman, nor was she under any suspicion of a crime, and at the end of it all they wind up charging her with obstruction of justice and resisting arrest.

[Coronach]

Lotsa issues now.

NUMBER ONE: Pennsylvania v Mimms. No, it only states thus: If an officer wants get a driver out of a car during a traffic stop, the officer may do so. It states in the case 'for safety reasons' but there is no requirement for the officer to articulate a threat to safety. If the cop asks you to step out, you are required to do so. SCOTUS says that after already subjecting the citizen to the indignity of a traffic stop, the additional inconvenience of requesting them to exit the vehicle is minimal.

Maryland v Wilson applies this to other occupants of the vehicle.

Caveat: As this is a touchy issue, local laws, policies and/or court decisions may limit the officer's ability to do this. Remember, state and local courts can always tie a LEO's hands more than SCOTUS would, but they can never give him more latitude, as SCOTUS determines how deeply the State is able to intrude into your life.

What IS required is that the stop be legitimate. As in, the officer must have probable cause to stop the subject in the first place.

NUMBER TWO: Officers lying/making stuff up/spinning the facts/etc.

Sure. It can happen...and you know what? You'll never be able to remove the possibility of it happening, although things like video/audio recording help. Still it can happen. And in rare instances, it will.

But...let me ask you a question:

What do you think happens when an officer gets caught?

Loss of job is not at all a remote possibility. A massive black mark on the officer's career is almost assured. Perjury on the stand will taint ALL future testimony that is made by that officer.

For what?

Oooo. You put away another drunk/geeker/doper/[color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color]head/whatever.

So what? Did you get a raise? Uhm...no. Promotion? No. Kudos? No. Any tangible gain? No. One thing people don't understand...by and large, its a JOB.

I get paid whether the BG goes to jail or not.

And no, promotions are NOT based upon things like this, at least not 'round here (civil service has its faults, but it does have its benefits, too).

So why would I risk everything I have to fabricate a case against some clown I never met before and likely won't again? Is it just for the sake of being able to do an extra hour of arrest paperwork, hauling his smelly arse to the county lockup and listening to his truly mindless conversation about A. How He Has Been Wronged and B. How His Wrists Hurt? Big freakin deal.

I can honestly say I have NEVER seen an officer falsify anything to make a case. If you have enough to make it fly, great. If you don't- OK, you win. Good Game. See ya next time.

(Which makes the whole story about the crime lab tech who falsified tests so utterly unbelievable. Why in God's name would you do that? I'm sure it happened...I just fail to see WHY)

NUMBER THREE: "The cops can always claim X, who can deny it?" -Paraphrasing Kieth Rogan...we can always say 'furtive motion,' etc etc etc. We can always shakedown people by intimidating, etc etc etc.

First, see Number Two...it can, but rarely, and there is no cause for it or logic behind it. That said, the mere possibility of it happening is an argument for...doing what?

Making roadside stops illegal?

Uhm...you have a lot of angst, but no clear suggestions. What are we supposed to do? Never stop anyone? Investigate no crime? Sit at the station and eat donuts?

Serious question: How do you think bad guys get caught? We don't have Evil-o-Meters that we can wave at people as they pass and discover who is doing wrong. We have to actually stop and talk to them. Sometimes, if the crime we are investigating is, like, a big deal and stuff, we might detain them. Sometimes we get the wrong guys, too. Are you saying that we can never do anything more than this:

COP: Are you engaging in illegal activity?

CITIZEN: Me? Shucks! No sir!

COP: Oh, okay. On your way, then.

And lets not forget this gem of argumentation: the mere possibility of Z happening once means X should be outlawed.

Yeah, if it saves one child, right? Turn in your guns, sir.

NUMBER FOUR: "That doesn't make it right, it only makes it legal."

Bravo.

I'll agree with you here. Pennsylvania v Mimms gives me the right to stop an 88 year old lady for a broken tail light and haul her grey and wrinkled arse out onto the roadside at 0-dark-30 on a blustery February morning, but it sure doesn't make it right.

The trouble is this- if you give discretion to people, be those people free citizens or government agents, you'll have those that will use it wisely and those who will not. We set limits upon that discretion where we must, tolerate some screw-ups as best we can, and make sure they don't happen again.

Believe it or not, cops talk about things like this to each other, and where I work, we get down on those who push things too far. Maybe they don't where you're from...but I must seriously wonder how much of this is reality and how much of this is perception.

NUMBER FIVE: Rich Lucibella's Objection to Implied Consent.

ooooookay. The State gives you two options:

A. Drive
B. Don't Drive.

If you chose B, ignore the rest of this.

If you chose A, you also sign an implied consent waiver. It states that if requested by a LEO you will submit to XYZ tests. Failure to do so will give you NO criminal sanctions (no fines, no loss of liberty), but will suspend your driving privs for a period of time.

No, this is not a loss of liberty. You can argue that you're no longer free to drive, which is correct...but you were never free to drive in the first place. The state ALLOWS you to drive. Argue this all you want. Good luck, have fun storming the castle.

So, you get pulled over after a long night, during which you ordered a bottle of rum an a Coke for last call. You can:

A. Submit to XYZ tests, and incriminate your drunk ass.
B. Refuse XYZ tests, and at least not give the officer ammo.

Oh, but chosing B will suspend your DL. Yes, it will. Its not a criminal proceeding, though. And if you don't like it, why did you say you agreed to it in the first place?

I have NO problem with implied consent. No charges are filed against you. Nothing goes on your Permanent Record. You will do no jail time. You will pay no fine. You go free. You just can't drive.

Mike

PS (rereading the thread): The cop bashing gets very tedious. There are bad cops. There are also bad gun owners. See where I'm going with this? I'm not saying that discussing the shortcomings of Law Enforcement isn't a valuable topic- hell, its a KEY topic. It keeps LEOs honest. But its amusing to see people decry one argument when its used against them and then instantly pick it up and wield it themselves.

[Justin Moore]

Coronach,

I actually agree with you on a fair number points, except:

No, this is not a loss of liberty. You can argue that you're no longer free to drive, which is correct...but you were never free to drive in the first place. The state ALLOWS you to drive. Argue this all you want. Good luck, have fun storming the castle.

The automobile is the standard convayence in the modern world. The state ALLOWS me to drive? Whatever happened to freedom of movement in the United States? That sounds more like the Soviet Union, where the STATE 'allowed' people to move from point A to point B with the 'proper papers' I'm sorry, but I agree with Rich on this one: driving (and hence freedom of movemnt) is a RIGHT, not a privlage. Its been wrongfully turned into a privlage over the course of the last century.

[Coronach]

I think way too many people get information from the internet like the obove-mentioned video (posted while I was typing)(no, I have not yet viewed it).

Did it happen? Yeah, probably. Almost certainly.

Is it bad? Probably. Horrible? Maybe so.

Is it representative of law enforcement as a whole? No.

Its like viewing the whole of gunwoners by the actions of Klebold and Harris.

And we'd never do anything like that. Liberals do that...they live in a perpertual state of alarm, whipped up to a frenzy by a few fabulously publicized but sadly true events. We'd never be so simplistic as to do that.

Would we?

Mike

[Coronach]

Justin:

http://www.greyhound.com/

Just in case you weren't aware of the option.

Seriously. I understand that point. But if driving is a right...lets think about the logical problems of licensing. Laminated liberty...so anyone can drive? Reeeeeaaallllyyy? What about the imcompetent?

Heck...wait, I dunno if we exclude them under the current system.

Okay, I'm going to bed.

Mike

[Justin Moore]

Mike,

Feel free to take Greyhound every day to work, or to take the wife shopping, or to take your grannie to the doctor or to (insert whatever here). That argument is intellectually dishonest. I take it that YOU ride Greyhound everyday? I find that hard to believe

Just because there are limitations placed upon a right, doesn't mean its not still a right. You can't yell fire in the movie theater. Licenensing (theoretically) demostrates that you are proficient to drive a car. But the mere fact the licensing exists doesn't make driving a 'privlage'. Freedom of movement is everyone's right in the USA, and the normal conveyance in the modern world happens to be the AUTOMOBILE.

By your argument, owning a gun would then be a privlage, since there are restrictions placed upon on it.

Rich, help me out here, I know you are lurking

[Coronach]

OK, I lied. I didn't go to bed, yet.

Yes, the greyhound comment was a joke- but it is worth mentioning that people exist by the billions worldwide sans cars, and by the millions right here in the USA and use public transportation.

The problems with having driving be a right are manifold, and not just the ones I cited already (not bad on the refutations, by the way. I'll not concede the points fully, but were I in your shoes I'd make the same arguments. Touche).

I'll get back with you on this one.

Mike, wimping out (tonight)

[Justin Moore]

Mike,

Sounds cool man. Sleep well

[deanf]

Because it's so off-topic, I won't argue it here, but consider this before stating there is no "right to drive":

http://www.cs.cmu.edu/~karl/govt/driver/driver.html

Making roadside stops illegal?

Who said anything about that?

[Justin Moore]

deanf,

WELL worth reading, thanks

[Quartus]

I admire your consistency and am just trying to understand your posit

I've never understood admiring consistency when the postition is idiotic.

[Byron Quick]

Whoo! I kinda like this thread! Thank you jhp147 for saying bluntly that you will never cover for a fellow cop who is breaking the law in his dealing with citizens. You reaffirm my belief that I live in a great nation. You and Lawdog might have me moving to Texas (along with Art Eastman).

From what I've seen in going on three years on TFL...I've been stopped by policemen much more than most for I have a lead foot. I lost my license for a year once for nothing but speeding tickets. No DUI's, no reckless driving, no accidents, just speeding tickets.

Folks, off the top of my head, in thirty one years of driving, I've probably been stopped more than sixty times. I've been charged ONCE where it was plainly a perjured charge by the officer. On the other hand, I've been released with a warning...or on a couple of occasions-with a laugh at least twenty times. TWICE when driving at speeds in excess of 100 mph Jeez, maybe there's some balance here. (Imagine that)
One night I was stopped with an expired license plate-a VERY expired license plate. The policeman listened politely to my "explanation" and then went ON and ON and ON and ON about what alcohol and/or drugs I had imbibed that night. I honestly informed him that I had imbibed neither drugs nor alcohol for a perior of several years. And still he kept on. I don't know why he was going on about this but I remained polite. In the end, he went one way and I went home...with a warning. Good cop...just kinda anal about the dope and booze. Another night a Georgia State Trooper went off on me for approaching him from behind at 75 mph. Apparently he didn't radar me for he would not write me a ticket. He just kept yakking on and on to me in a very insulting manner. I politely told him that I was in fact speeding and that I was going 75 mph basically just for the hell of it, would accept a ticket for that speed, accept the points and pay the ticket without protest but that under no circumstances was he going to continue talking to me in that fashion. I also told him we were going to have major problems if he continued to do so. Guess what? The guy calmed down, began to talk to me politely... and wrote me a warning ticket. Good cop having a bad day.

I've seen some bad crap. At four years old I heard the gunfire of cops murdering my next door neighbour. At seventeen I saw several cops stomp a defenseless drunk into the concrete at a range of four feet.

But I've also seen cops let people go when they had them cold. I've seen them decide not to search people who they had arrested for felonies a few weeks before-even when they had probable cause.

Yeah, I've seen abuse-serious abuse. But I've seen heroism too...and I've seen compassion. I've seen human beings faced with a superhuman task. I've seen them fail at times. But, more often, I've seen them succeed.

Anybody who has the powers that the police have is someone who I will always watch closely-like a hawk. But all in all, day by day, I think they do a largely thankless task surprisingly well.

It's up to us, as citizens, to get the laws on "dynamic entry", the "creative" property seizure laws, the War On Some Drugs, and abortions such as RICO changed so they are not REQUIRED to enforce them.

[Rich Lucibella]

Justin-
You need no help from me...you're doing just fine. Some may say this thread has moved off topic, but I disagree. We've finally articlated the nub of the issue: Driver's License as Right or Privilege and appropriate Constitutional Guarantees. (Spartacus puts it well, when he urges us to focus on the Law, not the cop executing it...this I have tried to do in my posts.)

Despite polite and articulate debate by those who defend the right of police officers to detain for what the rest of us call "less than fair" cause, the argument always seems to come back to "Well the Courts say it's OK". That, to me, is a specious defense; a circular argument leading nowhere. The context of this discussion is police powers and whether those Court rulings pass our individual tests of Constitutionality....to argue that they do so simply because they exist, is to admit yourself a subject, rather than a citizen.


Coronach-
Similarly, your reliance upon the "implied consent" which I was forced to sign in order to operate on the highways which I paid to build and maintain is non-instructive in light of the question of Constitutionality. Were it not, we'd have nothing to discuss here regarding the continual regulatory, legislative and (yes) judicial encroachment of the Second Amendment.

You ask for a reasonable solution that would balance the concerns of Officer Safety, Constitutional Protections and Criminal Justice. Fine, try this on for size:

1) All minor moving violations shall be deemed ticketable offenses only. ("Minor" to be defined by us in another conversation, but we all know what I'm getting at here.) The accused signs the ticket and goes on his way. Failure to sign is cause for arrest.

2) If, in the course of that stop, the officer has reason to believe a real crime is evident, he may ask the person to step out of the car, lean over backwards and perform various contortions for subjects neighbors and passersby.

3) If, pursuant to Constitutional Guarantees under the 4th and 5th Amendments, subject refuses to willingly self incriminate or refuses to willingly subject himself to having to prove his innocence before the fact, the officer has some choices.
a) Allow that fellow citizen to continue on his way
b) Arrest that individual for the crime that is now being investigated only. If that crime is DUI and the subject is found guilty, he looses his right to drive as set forth in law.....but in no case would that right be subject to impairment simply due to his refusal to self incriminate or "cooperate"....kinda the same protections as if you were walking down the street or sitting in your living room. It goes without saying that repeated arrests based on shoddy evidence will result in officer sanctions and/or litigation against the Department.....thus creating some balance.

Now, I ask you, what has the cop given up here in terms of personal safety? (All traffic stops are inherently dangerous). What has society lost? A drop in the bucket in terms of a relatively few potential arrests that might have otherwise been made? For me, I'll take that risk...if the benefit is that my fellow citizens, including off duty cops, their wives and children, are able to travel the highways with less fear of intimidation, unwarranted detention and helplessness before the law.

You guys know your jobs...you'll have a hard time convincing me that this plan would result in your inability to get dangerous or impaired drivers off the road. Yup, you'll start missing a few of the potential .082 DUI busts but as I quoted before:

Since when is 'public safety' the root password to the Constitution?

Rich

[Keith Rogan]

I wish I had saved the link, but not a week ago on another forum a news story was posted about a guy in Massachussetts who taped a traffic stop, then used the tape to charge the officer with illegal behavior of one sort or another - the type of thing we are discussing here.
And... the guy was arrested and the tape seized. Apparently it is illegal to tape a policeman - a violation of his rights - although he can tape you in the same situation!
And of course since the tape is inadmissable no charges can be preferred against the cop.

Mind boggling! If anyone has seen that story and can provide a link it would be well worth posting here.

[Rob Pincus]

A lot of ground has been covered in past 24 hrs.... I'll jump back in on the topic of operating a motor vehicle as a privelege. I think it is, and should be. I have no problem with people moving about freely, but I think that they should have to demonstrate a reasonable amount of proficiency before they toll around in a 3000lb vehicle at 60mph a few feet from other similarly equipped citizens. Before someone else goes there, yes, as I've stated several times over the years, I don't have a problem with proficiency tests for firearms in another political environment. Today, such a licensing procedure would just be another anti-gun step... not a common sense safety issue. For years people held up Switzerland as a pro-gun Nirvana... but you didn't get your state provided automatic weapon until after you had gone through the training program.

The issue of traffic stops cannot be addressed until we determine whether driving (not "travelling") is a right or a privilege. Clearly, in the United States today, it is a privelege. Until that changes, we've got what we've got.

Rich, on your 3 points, your first two are exactly the way it is. Traffic violations are mandated as being summonsable offenses, unless the person refuses to sign the summons. Officers do not administer Field Sobriety Tests unless there is already suspiscion of DUI.
The third point is a little touchier. The difference between "reasonable suspicion" and "probable cause" has already been addressed. They are worlds apart. I assure you that there have been plenty of times that I've walked up to a car and known that the driver was DUI. I've known that I could've got him out, put cuffs on him, gotten a breath sample and convicted him of DUI. But, we just can't do it that way. Probable Cause has got to be established for the arrest, that is what the FSTs are for. This way, if he ends up not giving a breath sample, or god forbid he is below the legal limit, there is a trail to show that the arrest was not improper. If I can say that he failed 4 out of 5 FSTs, or whatever, that makes the arrest legit, even if he refused to give a certified breath sample. He may still get convicted of the crime and he can't sue me for false arrest. To suggest that LEOs have to make the arrest before commencing with the investigation of the crime and establishing the PC is asking for abuses.


Too many of the points made recently seem to rely on the underlying suposition that Cops are going to lie, twist and fabricate whatever they need to make arrests. That **** needs to be edited right out of your thought processes. Paranoid thinking like that cannot lead to productive results. The word "shakedown" is also highly overrrated, overly emotional and somewhat offensive, as is the assertion that "most cops " would take advantage of something in a sinister way. All those things lead me back to Cop Rule #3: If you're not doing anything wrong, you have nothing to worry about.

Someone made the point above that .10 is pretty damn drunk, and that, in my experience, is usually true. I've checked myself and others with PBTs in non-LE situations to see "what is what" and I've always been very surprised at how low we register after (or even during) an evening of drinking. I've also been as high as a .24 and I could barely administer the test to myself. Still, even though I know it takes a significant amount of alcohol to get to an .08, I rarely arrest someone that low anymore, because there are so many bigger fish to fry at the .12-.18 range and few people can argue that I am "just meeting a quota" or some such.

As for the safety issues of getting people out of the car, there are many different opinions. Some cops prefer to leave people seated and stand to their rear. Others would rather remove people from "their environment." Either way, the driver is the one who committed an offense and that is why he is stopped. If an LEO wants him out, he should get out. As noted above, that does not mean an automatic pat down or search of his car. It simply means he has to get out.
Generaly, I don't have anyone get out of the car unless: 1. I'm going to administer FSTs or, 2. I've already got good reason to think I'm going to search the car (seen/smelled contraband, etc....). OTOH, some officers have everyone get out of the car... in some parts of the country the standard is even to get out of your car and meet the officer half way!

Getting back to the original thought I had, The Constitution guarrentees many things, but I've never seen the right to drivea car or motorcycle or fly a plane, for that matter. Nor do I recall anything about "free access to the common transportation mode of the day." 'Course, the other side of the coin is that the gov't is not granted any specific control to license forms of travel. The key here, I think, is accepting a legitimate case of "How could the founding father's have known?" Not as it is applied to Ar15's, but as it should be (and I think was) applied to a truly new form of technology. There was no law stating that Mr. Ford needed a driver's license to test out his first creation... but, as more and more cars hit the roads, a need was seen to regulate their use and attempt to ensure the safety of the citizenry. You cannot draw a paralell to weapons, which were clearly covered in the Bill of Rights. People were allowed access to them for an express purpose. The People were not promised the right to ride a horse on public roadways. If we had been, I'd have a different opinion.

[Ipecac]

The constitution most assuredly does cover the right to drive a car and fly a plane. Look in the 9th and 10th amendments. The BoRis a partial enumeration of the rights of the people; the constitution is a strict listing of the powers of government. Funny, I haven't seen anything in the Constitution that allows the federal government to build any type of road but post roads...

The rights of the people are not restricted to those specifically enumerated in the BoR. The powers of the government are limited to those specifically stated in the constitution.

Drunk driving isn't near the menace it's popularly portrayed to be, anyway, but as we know, facts rarely matter in an emotional issue.

[Rich Lucibella]

Rob-
Don't make me beat you with this ball pean hammer until you die!

I'm thoroughly puzzled by your statement that you support a proficiency test for driving but not for firearms, due to "the current political environment". In the first place, there is no rule that says a Right to drive may not involve a test of proficiency. In the second, what could possibly cause you to believe the "current political environment" is geared toward abuses of the Second Amendment and not the Fourth or Fifth?

We're talking Search and Seizure here. We're talking self incrimination. We're talking about the lost rights of a woman who had her automobile successfully stolen by the Govt because her ex-husband got caught on the wrong end of a hooker, therin. We're talking a NYC law regarding Seizure of automobiles for on offense charged. The difference between how that law is written and how it is applied is simply a matter of time...it's on the books.

As for your point about a traffic ticket being only a signable offense, I refer you to Law Dog's opening statement:

Fine. You're under arrest for Failure to Maintain a Single Lane of Traffic/Fail to Dim Headlights/Fail To Yield Right-of-Way/Unsafe Speed-Less than Posted Limit/Littering/anything else I can find -- get out of the car.

The fact of the matter is that, on the highways of this nation, we are all but helpless to prevent an invasion and the legal trampling of rights that only 20 years ago were considered inviolate. The laws and the range of options open to it's officers if we refuse to comply with (UnConstitutional) "requests" leave us very much at your mercy. That's a trend...and there is simply no amount of "for the children" (or anyone else) rationalizing that will convince me that it's not a dangerous trend. The fact that the vast majority of the Peace Officers out there are honorable is also not a valid defense...Benevolent Dictators are also "honorable", but I'll be damned if I'll subject myself to one willingly.

This exact same trend now gives us no-knock warrants and too many "yeah, we're sorry about the wrong address, but the old guy pulled a gun" deaths. It give us No-Effective-Recourse Asset Forfeiture. And it gives us magazine capacity limits and "That gun looks too dangerous to be sold" firearms laws.

One simply cannot tease one trend apart from the others. The patterns are the same; the trends are the same; the loss of rights is the same; and, most important, the arguments for necessity are the same.
Rich

[Keith Rogan]

Yeah, what Rich said....

[Jeff White]

Rich,

If "the courts say it's ok" is a specious defense, who should say what's ok? Didn't the framers set set up all these checks and balances into the system? How will we change it?

Like it or not the police will operate under the guidelines the courts hand down. How long do you think an officer would be employed and not in trouble with his superiors if he refused to operate under the court guide lines?

The way to change the system is to elect judges at the local level, and politicians who will appoint judges to the federal bench who believe in the constituion. This is going to be a long drawn out process, but there is no quick fix. Perhaps if we got a good case to SCOTUS then the current constitionalist faction on the court might trun some of this back. That would be the only way to effect a relatively fast change.

Jeff