Reasonable Suspicion/Reasonable Cause

[Guest DrBoomBoom]

I've just read all of these threads and I'm puzzled. There's nothing wrong or illegal about an LEO asking for a search. There's nothing wrong or illegal about refusing a request for a search. I don't get it. Does anyone disagree with these statements? What's all the arguing about?

[G27]

I've just read all of these threads and I'm puzzled. There's nothing wrong or illegal about an LEO asking for a search. There's nothing wrong or illegal about refusing a request for a search. I don't get it. Does anyone disagree with these statements? What's all the arguing about?

Do you skip the original post? The OP's friend wasn't given the chance to deny a search as the officer claimed the LEGAL presence of the gun was RS/RC.

[Guest canynracer]

Okay so let me get this straight, First we shouldn't pull people over for traffic violations. We shouldn't ask to search cars or homes. We plant evidence, we use excessive force before we plant the drugs. We sneak up on people when we do traffic stops, we steal and lie, did I forget anything? When Voldemort first got started on here, everyone thought he was a whack job that just tried to start problems with people, but now it looks like that has become a theme on here.

Kwik, I apologize for anything that I have ever thought of you that may have been hurtful. I never posted anything and ain't sure if I thought of any, but feel like I should apologize.

I have enjoyed this forum for a long time, but it seems like everytime I come online, it's all about how bad cops are. Those of you who have said all the BULL S&!T should suit up and do the damn job or shut up.

It's our butts on the line when we stop cars and try to keep the bad guys off the street, maybe we should just all quit, then you could deal with the thugs on your porch.

So far i've heard how the first cop through the door on a no knock warrant is getting shot, Rabbi has posted that some cops beat a man who has drug dealing on his record then planted drugs, then covered it up so they would look like they were okay. If you don't trust cops, don't call when your daughter gets raped, or maybe when your gunshop gets burgalized. You people make me sick, you want us there when you are wronged, but the rest of the time, we should go away because we are all evil cops trying to violate your rights. The cop that stops you, doesn't have a clue who you are, so everyone gets treated with a little suspicion.

The people on this forum that know me personally, know what kind of person I am, and they know what kind of cop I am. I can only hope that they don't feel that way about me. I seem to get angry every time I log on, so like another member here, I will leave now before I say something to get thrown off here.

Shadow12 out

Well said.

[Guest DrBoomBoom]

Do you skip the original post? The OP's friend wasn't given the chance to deny a search as the officer claimed the LEGAL presence of the gun was RS/RC.

No, sir, I didn't skip the original post, but most of the arguments have been about whether people should allow an LEO to search after simply asking to.

If the search in the original question was legal, it's legal. If not it's not, and I don't know how someone can determine that by reading a short post on the internet. Of course a legal gun could be part of a proper RS/RC search if someone was just held up by a gun of that description. But just as easily, it could have been improper.

It's the discussion that followed that puzzled me. The predominant argument seemed to be whether it is wrong or right to refuse a request, without RS/RC, for a search. I can't see how it is wrong or illegal. Conversely I can't see how an LEO asking for permission to search a vehicle is either wrong or illegal. I wondered if anyone disagreed with that.

Edited June 9, 2008 by DrBoomBoom

[Fallguy]

I've just read all of these threads and I'm puzzled. There's nothing wrong or illegal about an LEO asking for a search. There's nothing wrong or illegal about refusing a request for a search. I don't get it. Does anyone disagree with these statements? What's all the arguing about?

I agree with your statements.

But MANY others think it is wrong to deny a LEOs request to search. Many think you should submit to any request made.

[G27]

It's the discussion that followed that puzzled me. The predominant argument seemed to be whether it is wrong or right to refuse a request, without RS/RC, for a search. I can't see how it is wrong or illegal. Conversely I can't see how an LEO asking for permission to search a vehicle is either wrong or illegal. I wondered if anyone disagreed with that.

Gotcha, I'm with you. Seems pretty black and white to me - the law is pretty clear.

I never did see an answer to the question of "does the officer have to tell you what the probable cause/reasonable suspicion was if asked?"...

[Guest DrBoomBoom]

I agree with your statements.

But MANY others think it is wrong to deny a LEOs request to search. Many think you should submit to any request made.

As long as folks say someone "should not" deny such a request that is ok. It's when people say someone "must not" that I disagree.

I believe that voluntarily giving up our rights leads to losing them. Say, for example, voluntarily registering your gun. Does anyone disagree with that?

[Fallguy]

I never did see an answer to the question of "does the officer have to tell you what the probable cause/reasonable suspicion was if asked?"...

I don't know for sure, but I'd say, No, they don't have to tell you. They could at some point have to tell a judge if you are able to take it that far.

I believe that voluntarily giving up our rights leads to losing them. Say, for example, voluntarily registering your gun. Does anyone disagree with that?

I would agree with that statement also......

[Guest DrBoomBoom]

I never did see an answer to the question of "does the officer have to tell you what the probable cause/reasonable suspicion was if asked?"...

I don't know if they "have" to or not, but I doubt it. I would guess that the officer doesn't have to say anything other than the Miranda statement ("You're under arrest, you have the right to remain silent...etc.) I would further guess that any other information the officer may give out at a stop would be voluntary, out of courtesy, and perhaps following department guidelines.

[Guest rj8806]

I agree with your statements.

But MANY others think it is wrong to deny a LEOs request to search. Many think you should submit to any request made.

Actually, it wasn't "MANY", it was ME who still thinks it is wrong.

(Just thought I'd clear that up for anyone new to this thread. )

Richard

[Fallguy]

Actually, it wasn't "MANY", it was ME who still thinks it is wrong.

(Just thought I'd clear that up for anyone new to this thread. )

Richard

Oh I'd say you've been the most active and staunch in your position, but not the only one with it.......

[Guest Abominable_Hillbilly]

I never did see an answer to the question of "does the officer have to tell you what the probable cause/reasonable suspicion was if asked?"...

Not really, no, but.............the justification or admissibility of evidence gained through a Terry Stop is often judged by whether or not the officer tried "to diligently dispel or confirm his suspicions" in the quickest manner possible. Obviously, one of the fastest ways for a cop to do this would be to communicate his suspicions to you to see how you react. "Well, it's late at night and you're out here by yourself just wandering around." "Well, you were weaving a bit back there." "Well, there was a description of a vehicle matching yours seen leaving the scene of an assault just a little while ago."

The cops don't have to tell you, but if they seize someone and don't follow the case law, a criminal may never be convicted because ill-got evidence will be properly excluded from the trial.

[Guest DrBoomBoom]

Actually, it wasn't "MANY", it was ME who still thinks it is wrong.

(Just thought I'd clear that up for anyone new to this thread. )

Richard

Thank you, Richard.

Personally, I don't think it is ever wrong to exercise my Constitutional rights. Of course, you do have a right to your opinion, and I know it is formed from a good and moral perspective.

These days I'm very concerned about our rights. I expect that several of them will be under attack in the coming years. People are using emotional ploys to institute laws and regulations. I believe it is time that we all start to examine the Constitution and demand that it not be weakened or ignored. As I see it, there is a good reason why we have rights against unlawful search or seizure. I'd hate to see the nation lose those rights "de facto" because folks react emotionally or, worse yet, because they fear reprisals from their local authorities. Coming from a family of many LEO's and having a son who is going into law enforcement as a career, I know that most officers are good, decent people. I just believe that good, decent people are not tarnished if they decide to exercise their Constitutional rights. As they say, "Use it, or lose it."

[G27]

Thanks for the answers, guys. Not sure I see a downside to making LEO's tell someone what their suspicion or cause is for a search. I would think the 4th amendment would help support my view that there's no reason an officer shouldn't tell us what his suspicion is, and would def make LEO's be certain they have a viable reason to search, instead of giving them hours (or more) to contrive something if needed.

FWIW, I'm absolutely NOT anti-cop, I just wonder how many 'busts' have happened due top illegal searches where probable cause was manufactured later...

[DaveTN]

I would guess that the officer doesn't have to say anything other than the Miranda statement ("You're under arrest, you have the right to remain silent...etc.)

He doesn’t have to do that unless he is going to do a custodial interview.

[DaveTN]

Thanks for the answers, guys. Not sure I see a downside to making LEO's tell someone what their suspicion or cause is for a search. I would think the 4th amendment would help support my view that there's no reason an officer shouldn't tell us what his suspicion is, and would def make LEO's be certain they have a viable reason to search, instead of giving them hours (or more) to contrive something if needed.

Even though he is not required to, if the Police Officer is not explaining to you what is going on there is probably a problem. There could be many reasons for it.

I have said this before, but I have never asked anyone for permission to search where I didn’t already have probable cause. By asking I’m just engaging them in dialog to see how this stop is going to go. Now when they refused my request and I searched anyway; I’m sure some of them thought their rights had been violated.

FWIW, I'm absolutely NOT anti-cop, I just wonder how many 'busts' have happened due top illegal searches where probable cause was manufactured later...

Probable cause is a 20 lane Interstate a thousand miles long. PC for a stop doesn’t take more than a few blocks, and PC for a search is there or it isn’t.

[Guest canynracer]

Oh I'd say you've been the most active and staunch in your position, but not the only one with it.......

True, I am not against letting them search...within reason, and under certain circumstances....

[dariks]

For me it's pretty simple.

Q: Can I search your vehicle?

A: No.

If he searches anyway there's not a thing I can do about it. If I feel my rights were violated then the side of the road is not where I'm going to argue my case.

I love watching REAL reality shows...and if theres one thing I've learned it's Don't Resist and Don't Argue...it won't do you a bit of good.

[Guest DrBoomBoom]

Here's my concern.

When it becomes socially unacceptable to exercise your rights, it's easy to lose them. That's why I ask folks who think it is wrong to exercise any rights, to reconsider their position.

One of the anti-gun tactics is making guns socially unacceptable. They say things like, "Why do you need a hi cap evil black assault weapon for hunting?" Then they turn around and say, "Why do you need to kill Bambi?" These tactics have been effective for them, and as a result we've had local laws passed that seriously affect the efficacy of the second amendment. These laws were passed because folks considered some aspects of constitutionally legal gun ownership to be socially unacceptable.

So, when someone says it is wrong for a person to exercise a particular constitutional right, I respectfully disagree and ask them to consider whether or not it is wrong to lose that constitutional right, and if it is wrong to lose it, why is it wrong to exercise it?

[Punisher84]

One of the anti-gun tactics is making guns socially unacceptable. They say things like, "Why do you need a hi cap evil black assault weapon for hunting?" Then they turn around and say, "Why do you need to kill Bambi?" These tactics have been effective for them, and as a result we've had local laws passed that seriously affect the efficacy of the second amendment. These laws were passed because folks considered some aspects of constitutionally legal gun ownership to be socially unacceptable.

I think that's a good argument. However, I have always been a middle road kind of guy. There are a few things I am staunch on, but I can give and take. The problem with everything is that most people want black and white. NO! You can't search my car or YES! Do whatever you want, you're the police, NO guns at all or YES everyone gets them!

We know the truth is somewhere in between. Everyone here wishes they could carry wherever, however, but criminals shouldn't have guns right? So how do we regulate criminals, while still letting law abiding citizens do their thing? That is when the war began lol

[Guest DrBoomBoom]

I think that's a good argument. However, I have always been a middle road kind of guy. There are a few things I am staunch on, but I can give and take. The problem with everything is that most people want black and white. NO! You can't search my car or YES! Do whatever you want, you're the police, NO guns at all or YES everyone gets them!

We know the truth is somewhere in between. Everyone here wishes they could carry wherever, however, but criminals shouldn't have guns right? So how do we regulate criminals, while still letting law abiding citizens do their thing? That is when the war began lol

Punisher. I agree with you, and also believe in give and take. I have both allowed and not allowed a search when asked. When allowed, the officer just did a quick look and was very polite. When not allowed the officer let me go and was also polite. But my point is not that it should be No or Yes all the time, my point is that saying it is "wrong" to ever say "no" may create a social mindset that is dangerous to our rights.

EDIT: To me, if everyone carried wherever they wished, there would, for one thing, be less crime. Let the law abiding citizens "do their thing" and when someone commits a crime with a gun, punish them quickly and severely. Make any crime, committed with a gun and involving a victim (even unharmed), equal to attempted murder. Make carrying while under the influence a felony.

Edited June 10, 2008 by DrBoomBoom

[Punisher84]

DrBoomBoom, I agree with that statement 100% percent!

[Guest kwikrnu]

http://www.nytimes.com/2008/05/12/nyregion/12guns.html?_r=1&partner=rssuserland&emc=rss&pagewanted=all&oref=slogin

Police in Gun Searches Face Disbelief in Court

Published: May 12, 2008

After listening carefully to the two policemen, the judge had a problem: He did not believe them.

A charge against Anthony McCrae was dismissed because a judge disbelieved an officer.

A judge shined a flashlight through the window of an S.U.V., above, in an evidence photo, to test police testimony.

The officers, who had stopped a man in the Bronx and found a .22-caliber pistol in his fanny pack, testified that they had several reasons to search him: He was loitering, sweating nervously and had a bulge under his jacket.

But the judge, John E. Sprizzo of United States District Court in Manhattan, concluded that the police had simply reached into the pack without cause, found the gun, then “tailored” testimony to justify the illegal search. “You can’t have open season on searches,” said Judge Sprizzo, who refused to allow the gun as evidence, prompting prosecutors to drop the case last May.

Yet for all his disapproval of what the police had done, the judge said he hated to make negative rulings about officers’ credibility. “I don’t like to jeopardize their career and all the rest of it,” he said.

He need not have worried. The Police Department never learned of his criticism, and the officers — like many others whose word has been called into question — faced no disciplinary action or inquiry.

Over the last six years, the police and prosecutors have cooperated in a broad effort that allows convicted felons found with a firearm to be tried in federal court, where sentences are much harsher than in state court. Officials say the initiative has taken hundreds of armed criminals off the street, mostly in the Bronx and Brooklyn, and turned some into informers who have helped solve more serious crimes.

But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”

The outrage usually stopped there. With few exceptions, judges did not ask prosecutors to determine whether the officers had broken the law, and prosecutors did not notify police authorities about the judges’ findings. The Police Department said it did not monitor the rulings and was aware of only one of them; after it learned about the cases recently from a reporter, a spokesman said the department would decide whether further review was needed.

Though the number of cases is small, the lack of consequences for officers may seem surprising, given that a city commission on police corruption in the 1990s pinpointed tainted testimony as a problem so pervasive that the police even had a word for it: “testilying.”

And these cases may fuel another longtime concern that flared up again in recent days: suspicions that the police routinely subject people to unjustified searches, frisks or stops. Last week, the Police Department reported a spike in street stops, which it said were “an essential law enforcement tool”: 145,098 from January through March, more than during any quarter in six years.

The judges’ rulings emerge from what are called suppression hearings, in which defendants, before trial, can argue that evidence was seized illegally. The Fourth Amendment sets limits on the conditions that permit a search; if they are not met, judges must exclude the evidence, even if that means allowing a guilty person to go free.

Prosecutors and police officials say many of the suppressions stem from difficult, split-second judgments that officers must make in potentially dangerous situations about whether to search someone for a weapon — decisions that are not always easy to reconstruct in a courtroom.

But one former federal judge, John S. Martin Jr., said the rulings are meant to deter serious abuses by the police. “The reason you suppress,” he said, “is to stop cops from going up to people and searching them when they don’t have reason.”

Federal judges rarely suppress evidence, Judge Martin said, and the unusual number of suppressions in New York City gun cases raises questions about whether such tactics may be common. “We don’t have the statistics for all the people who are hassled, no gun is found, and they never get into the system,” he said.

Whatever one makes of the legal debate, these cases offer a revealing glimpse into some police practices — in the street and on the witness stand — that have gone largely unexamined outside the courtroom.

‘A Dismal Record’

In one case, the officer explained that he had a special technique for detecting who was hiding a gun. He had learned it from a newspaper article that described certain clues to watch for: a hand brushing a pocket, a lopsided gait, a jacket or sweater that seems mismatched or out of season.

That was one reason, he told a judge, that he was certain the man he saw outside a Brooklyn housing project last September was concealing a gun. The man, Anthony McCrae, had moved his hand along the front of his waistband, as if moving a weapon, the officer said. Sure enough, a search turned up a gun.

The judge, John Gleeson of Brooklyn federal court, asked the officer, Kaz Daughtry, how successful his method had been in other cases.

Officer Daughtry replied that over a three-day period, he and his partner had stopped 30 to 50 people. One had a gun.

Calling that a “dismal record,” the judge said the officer’s technique was “little more than guesswork.”

Moreover, Judge Gleeson said he did not believe that Officer Daughtry could even have seen the gesture he found so suspicious: Mr. McCrae’s hand was in front of him and the officer was about 30 feet behind.

The judge would not allow the gun as evidence, and on April 24, federal prosecutors dropped the charges. A law enforcement official said the Brooklyn district attorney’s office learned of the ruling and was reviewing Officer Daughtry’s other cases to see if there were problems.

The Police Department declined to make Officer Daughtry, or any other officers, available for comment.

The decisions to suppress, which The New York Times found by interviewing lawyers and examining more than 1,000 court dockets since 2002, came from 18 federal judges in Manhattan and Brooklyn.

Several rulings involved police raids on homes without warrants — and judges’ doubts that the owners had consented to a search, as the police claimed and the law requires.

In one case, a group of officers investigating a fatal shooting in 2002 entered an apartment in the Bronx and arrested a man named Justice Taylor after finding a shotgun in a bedroom. Sgt. Brian Branigan, who led the search, testified in federal court in Manhattan that Mr. Taylor had given the officers permission to enter.

But Mr. Taylor denied that. Two other officers did not mention his giving consent. And the judge, Jed S. Rakoff, said that Sergeant Branigan “felt the need to embellish his account with details indicating consent that the court finds unbelievable.”

Judge Rakoff even took issue with the demeanor of the sergeant, “whose cockiness was evident even on the stand.” His apparent “disregard for niceties,” the judge wrote, made it “wholly plausible” that he had forced his way into the apartment.

The case was dismissed, and the city, while denying liability, paid $280,000 to settle a civil rights lawsuit by Mr. Taylor and others in the apartment.

In another case, a judge did more than cast doubt on an officer’s testimony. She proved it wrong.

The judge, Laura Taylor Swain, heard the officer, Sean Lynch, testify that he had shined his flashlight through the window of a parked sport utility vehicle one night in the Bronx and had seen a gun. The driver’s lawyer said that Officer Lynch could not have seen the gun because the car’s windows were heavily tinted.

So after sunset one evening in January 2006, the judge walked outside the Manhattan federal courthouse and shined a flashlight into the vehicle. She could see nothing.

Her inspection and other evidence, she wrote, “give the lie” to Officer Lynch’s account, which she called “impossible.” Prosecutors dropped the case.

The police, to be sure, have a difficult job trying to root out guns without overstepping the law. Some judges acknowledged this in court, saying they believed not that officers had lied, but rather that they had failed to recall an event accurately, perhaps because of its brevity, a limited vantage point or the subsequent passage of time.

And some expressed sympathy for the police. Judge Gleeson said in one case that while he found two officers’ testimony contradictory, he did not want to imply they had lied.

“I’m always reluctant in these circumstances, having been in the executive branch myself, having a feel for the consequences of an adverse credibility determination — I’m sensitive to it,” he said last November.

Judges typically do not discuss cases, but some have said that, in general, it is not their responsibility to follow up their criticisms of officers. The rulings are on the record, for prosecutors or others to act on if they wish.

Paul J. Browne, the Police Department’s chief spokesman, said that only one of the critical rulings had been reported to the police, by a federal prosecutor in Brooklyn who said he had no doubts about the officer’s truthfulness. The police took no action.

More broadly, Mr. Browne said an officer’s failure to convince a judge that his suspicions were justified “doesn’t necessarily mean the officer did something wrong.”

“In each case,” he added, “the suspect in fact had a gun.”

Federal prosecutors would not comment on individual cases. But Michael J. Garcia, the United States attorney in Manhattan, said his office reviews any negative rulings about an officer’s credibility to decide whether any action is necessary.

“Any time evidence gets suppressed is a serious thing,” he said.

In court, prosecutors have vigorously defended the officers’ conduct and testimony. In one brief, a prosecutor argued that a police lieutenant had no reason to lie, because that could “jeopardize a fast-moving N.Y.P.D. career.” But writing in response, a federal defender, Deirdre von Dornum, cited cases in which officers faced no repercussions — “not the loss of their jobs, not disciplinary action.”

Still, one judge was so struck by what he said were an officer’s lies that he tried to do something about it.

Two officers had arrested a man and confiscated a gun in a Bronx apartment in 2002. But Judge Martin, then on the Manhattan federal court, was troubled that one officer had given the district attorney’s office an account of how she gained entry to the apartment, then largely contradicted it on the stand.

“This has to be one of the most blatant cases of perjury I’ve seen,” Judge Martin, a former United States attorney, said in his courtroom in September 2003. He said he doubted the officer, Kim Carillo, had “any use for the truth.”

“She will tell it, I think, whatever way it suits her to tell it,” he added.

The judge told the prosecutor to ask his superiors to review Officer Carillo’s testimony. They later replied that they had found no perjury, he said, and that the officer was not at fault.

Side Effects

If the fallout for police officers has been slight, the judges’ rulings have exacted other costs.

For one thing, they may free a weapons offender, and scuttle the chance to win his cooperation in more significant prosecutions, like investigations into violent gangs or gun trafficking. “The lost value of those bigger cases is really incalculable,” said Alan Vinegrad, a former United States attorney in Brooklyn.

Questions about police credibility can also hamper other cases. When a judge finds, for example, that an officer has lied, prosecutors must alert defense lawyers in other cases involving that officer.

Judge David G. Trager of Brooklyn federal court was so indignant over what he called an officer’s “blatantly false” testimony in an October 2005 suppression hearing that he told prosecutors, “I hope you won’t darken my courtroom with this police officer’s testimony again.”

Judge Trager did not suppress the gun, concluding that some of the officer’s testimony had been credible. But the officer, Herbert Martin, was about to testify in a federal trial stemming from another gun arrest.

The defense lawyer in that case, Howard Greenberg, said that learning of Judge Trager’s findings “was like manna from heaven.”

When Officer Martin took the stand in that trial, Mr. Greenberg confronted him, asking, “Didn’t you commit perjury a week ago when you said in this very building, in an altogether different case, that someone had a gun in his waist?”

The officer denied that he had lied. But Mr. Greenberg said he believed that his question made an impression on the jury. His client was acquitted.

[Guest kwikrnu]

EDIT: To me, if everyone carried wherever they wished, there would, for one thing, be less crime. Let the law abiding citizens "do their thing" and when someone commits a crime with a gun, punish them quickly and severely. Make any crime, committed with a gun and involving a victim (even unharmed), equal to attempted murder. Make carrying while under the influence a felony.

There are already enough laws on the books.

Someone brandishing a gun should get life in jail?

Is there a problem with intoxicated permit holders committing crimes? If so maybe a new law is needed, but I didn't think there was.

[Guest rj8806]

For me it's pretty simple.

Q: Can I search your vehicle?

A: No.

If he searches anyway there's not a thing I can do about it. If I feel my rights were violated then the side of the road is not where I'm going to argue my case.

I love watching REAL reality shows...and if theres one thing I've learned it's Don't Resist and Don't Argue...it won't do you a bit of good.

You say you've learned "don't resist and don't argue" yet you will tell an officer no when he asks to search your car?

Richard