| Home | Community | Message Board |
|
You are not signed in. Sign In New Account | Forum Index Search Posts Trusted Vendors Highlights Galleries FAQ User List Chat Store Random Growery » |

This site includes paid links. Please support our sponsors.
|
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Commonly Misunderstood U.S. Legal Issues
I keep seeing the same topics come up in this forum, and, being an individual w/ too much time on my hands at the moment, I thought I'd consolidate some of the information regarding frequently-confused legal topics discussed on this board. As of April 2009, I've also added another post of mine to the end of this own which is entitled "The Mail and The Law". It is much less thorough, but should answer most basic questions regarding shipping and searches/inspections. Take this for what you will. This concerns US federal law only, your state law may offer more protection (or less in limited circumstances where constitutional rights are not at issue,) and although this is legal advice it may be incorrect. Most of this is common law-derived, so countries like Great Britain, Canada, Australia, and others will have similar law in many cases. I've tried to provide actual examples from case decisions as appropriate. Id means you are to refer to the previous refrence. I've not included page numbers in the cites because its a pain in the ass, easy enough to confirm without them, and I doubt anyone will really use them. Corrections are welcome. This will be a work in progress which will be updated as I feel like it. Feel free to add your own material. UPDATE: I'm pretty much done with this unless someone has suggestions. As always, post your complaints or anything you think I've misrepresented here and I'll change it if you convince me. ![]() UPDATE 2: I've added another post of mine to the bottom of this concerning mail, shipping and the law. Its much less thorough, but provides some basic information about warrants, inspection, and the mails. Stay safe.
I. Entrapment Perhaps the single most commonly held myth regarding the law: "Dude, cops can't try and sell/buy x from you, that's entrapment!" No it's not. Simply offering to purchase or buy x will not make the normal person with no interest in engaging in that conduct suddenly reverse course, thus it is permissible for a law enforcement officer to do so. "In their zeal to enforce the law, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells v. United States, 287 U.S. 435, 442 ." Syllabus of JACOBSON v. UNITED STATES, 503 U.S. 540 (1992) http://caselaw.lp.findlaw.com/sc What burden does the government have when entrapment is alleged? "Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Id. What are examples of what the government can do without creating a valid entrapment defense? "Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later." Id. Convict you of trafficking in heroin that government agents/informants both sold to you and provided the buyer for if there is evidence you have used heroin in the past. See: HAMPTON v. UNITED STATES, 425 U.S. 484 (1976) http://caselaw.lp.findlaw.com/sc Sell you an essential precursor to a controled substance with the understanding that you will be manufacturing that substance. See: UNITED STATES v. RUSSELL, 411 U.S. 423 (1973) http://caselaw.lp.findlaw.com/sc What are examples of what the government cannot do without creating a valid entrapment defense? They cannot harass you through the mail for 26 months until you finally succumb and comply with the request, where you demonstrate no prior predisposition towards engaging in the offense. "...over the next 2 1/2 years repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore petitioner's willingness to break the new law by ordering sexually explicit photographs of children through the mail..... In petitioner's home, the Government found the Bare Boys magazines and materials that the Government had sent to him in the course of its protracted investigation, but no other materials that would indicate that petitioner collected, or was actively interested in, child pornography." See: JACOBSON v. UNITED STATES, 503 U.S. 540 (1992) http://caselaw.lp.findlaw.com/sc When denied a request for an illegal drug engage you in conversation about their similar past for some time while repeating the request. After being denied several times, finally succeeding in convincing you to find the drug, with want of evidence you've previously engaged in the illegal trafficking. See: SORRELLS v. U.S., 287 U.S. 435 (1932) http://caselaw.lp.findlaw.com/sc ================================ II. Miranda Warnings, Right to Remain Silent, and Exclusion of Statements Commonly-encountered false belief about Miranda: "If the cop doesn't read you your rights, you can get the case thrown out." False, the Miranda rights concern only testimonial statements, not biographical information; at best these statements will be excluded from trial if you convince a judge they were unintelligent or coerced waiver's of your fifth amendment right to shut your damn mouth. Any other evidence seized, i.e. contraband, documents, and witness statements, may still be used against you. What are the Miranda Warnings? The Miranda Warnings are a general list of rights you have that the police must inform you of after they form the intent to arrest you and before they interrogate you. The warnings must be given before an interrogation, if the police have arrested or intend to arrest you at the time, however; it doesn't matter if the police have actually arrested you when the begin to interrogate you so long as they have allready formed the intent to so-arrest. The one caveat to the former is that the reasonable belief of a suspect that he is arrested requires the warnings to be given prior to questioning, whether or not the officer believes he has arrested the suspect- the "arrest" begins at the earliest of when the officer forms the intent to arrest or when the suspect has the reasonable belief that he is arrested. The Miranda Warnings are not a specific script at federal law. "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him." See: Miranda v. Arizona; 384 U.S. 436 (1966) http://caselaw.lp.findlaw.com/sc When must the Miranda Warnings be given? What if they are not given The miranda warnings don't have to be given. They are, however; a prerequisite to the usage of any subsequent statements to the police or other law enforcement. "The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination." Id. at Syllabus 1 Further, police may not deliberately withhold Miranda Warnings to elicit a confession, later Mirandize the Defendant, and then use the previous confession as a pretext to induce the now-Mirandized Defendant to confess again. "Here, however, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. The warned phase proceeded after only a 15-to-20 minute pause, in the same place and with the same officer, who did not advise Seibert that her prior statement could not be used against her. These circumstances challenge the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes could not have understood them to convey a message that she retained a choice about continuing to talk." Missouri v. Seibert, 542 U.S. 600 (2004) http://caselaw.lp.findlaw.com/sc When are Miranda Warnings not effective? See Missouri v. Seibert, above. Also, the decision to speak with the police must be voluntary. For a statement to be deemed involuntary, their must be coercion. Mental infirmity is no defense against the voluntary-nature of the statement "Coercive police activity is a necessary predicate to finding that a confession is not "voluntary" within the meaning of the Due Process Clause." See: COLORADO v. CONNELLY, 479 U.S. 157 (1986) http://caselaw.lp.findlaw.com/sc When are Miranda Warnings not required? When the prosecution wishes to used statements obtained without Miranda Warnings being given, to discredit the testimony of the accused at trial. The accused may prevent this by refraining from testifying. See: Harris v. New York, 401 U.S. 222 (1971) http://caselaw.lp.findlaw.com/sc When the defendant makes voluntary statements without questioning or its functional equivalent. "Here, there was no express questioning of respondent; the conversation between the two officers was, at least in form, nothing more than a dialogue between them to which no response from respondent was invited. Moreover, respondent was not subjected to the "functional equivalent" of questioning, since it cannot be said that the officers should have known that their conversation was reasonably likely to elicit an incriminating response from respondent." See: RHODE ISLAND v. INNIS, 446 U.S. 291 (1980) http://caselaw.lp.findlaw.com/sc When their is a legitimate public safety concern. "The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it." See: Syllabus (a) of NEW YORK v. QUARLES, 467 U.S. 649 (1984) http://caselaw.lp.findlaw.com/sc note: The public safety exception is also an exception to warrant requirments to search a home, under the more broad exigent circumstances exception. "...neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, "the exigencies of the situation made that course imperative." McDonald v. United States, 335 U. S. 451, 456. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation" See: Warden v. Hayden, 387 U.S. 294 (1967) http://supreme.justia.com/us/387 What happens when the accused exercises his right to remain silent? "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." See: Miranda, above. ================================ III. Evidence Suppression, Breaking the Law to Enforce the Law, Cops Doing Drugs,and Cops Lying There are persistent rumors that police must a) identify themselves and their employer when asked, b) follow the law, or c) tell the truth in the context of a criminal investigation, and that violations are grounds for acquittal. This isn't generally true. Suppression of evidence is a means to remedy direct violations of Constitutional rights where the evidence obtained would not have been but for the transgression of the police. What follows is the general criteria used when deciding whether evidence should be suppressed, and some specific applications as related to the title-examples, above. When and Why is evidence suppressed? Evidence is suppressed when a search or seizure violates the Constitution. It is a manner in which to restrict law enforcement to lawful search, and avoid rewarding unscrupulous tactics in order to obtain a warrant or probable cause. "While the framers of the constitution had their attention drawn, no doubt, to the abuses of this power of searching private houses and seizing private papers, as practiced in England, it is obvious that they only intended to restrain the abuse, while they did not abolish the power." See: BOYD v. U S, 116 U.S. 616 (1886) http://caselaw.lp.findlaw.com/cg "If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." Quoted by: MAPP v. OHIO, 367 U.S. 643 (1961) http://caselaw.lp.findlaw.com/cg What exceptions exist to exclusionary rules? When "good-faith" mistakes are made, without intent to evade Constitutional rules, and where the violation is not substantial. "Application of the exclusionary rule should continue where a Fourth Amendment violation has been substantial and deliberate, but the balancing approach that has evolved in determining whether the rule should be applied in a variety of contexts - including criminal trials - suggests that the rule should be modified to permit the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate" See: Syllabus of UNITED STATES v. LEON, 468 U.S. 897 (1984) http://caselaw.lp.findlaw.com/cg "Even assuming that the exclusionary rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law, and penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id. http://caselaw.lp.findlaw.com/sc When the evidence is used in civil proceedings and grand-jury investigations. This includes paroll and probation hearings. "Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The balancing process implicit in this approach is expressed in the contours of the standing requirement. Thus, standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search" See: UNITED STATES v. CALANDRA, 414 U.S. 338 (1974) http://caselaw.lp.findlaw.com/cg When the search or seizure is conducted by a private actor at their own behest, and not aided or encouraged by the government. "The fact that employees of the private carrier independently opened the package and made an examination that might have been impermissible for a Government agent cannot render unreasonable otherwise reasonable official conduct. Whether those employees' invasions of respondents' package were accidental or deliberate or were reasonable or unreasonable, they, because of their private character, did not violate the Fourth Amendment. The additional invasions of respondents' privacy by the DEA agent must be tested by the degree to which they exceeded the scope of the private search." See: Syllabus of UNITED STATES v. JACOBSEN, 466 U.S. 109 (1984) http://caselaw.lp.findlaw.com/sc When the evidence would have been discovered anyways, or when the evidence is obtained via another source that is not in violation of the accused's rights. "The core rationale for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct is that such course is needed to deter police from violations of constitutional and statutory protections... On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired. By contrast, the independent source doctrine - allowing admission of evidence that has been discovered by means wholly independent of any constitutional violation - rests on the rationale... If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means - here the volunteers' search - then the deterrence rationale has so little basis that the evidence should be received." See: NIX v. WILLIAMS, 467 U.S. 431 (1984) http://caselaw.lp.findlaw.com/sc When the evidence is obtained in violation of the rights of someone other than the accused. "A defendant has standing to challenge the admission of evidence only if her own constitutional rights have been violated" See: Georgetown Law Journal, Jun 1998; Pitts, M. J. http://findarticles.com/p/articl Can the police break the law to enforce it? Generally, yes. The exclusionary rule is narrowly tailored to prevent illegal acts by the government in obtaining information to bring criminal charges. The violation of department policy, the law, or other authority is largely irrelevant unless the questioned conduct can be shown to have violated the rights of the accused to be free from illegal search or seizure, and is not subjected to any of the judicially-crafted exceptions. Can the police deny they are police? Do they have to tell you they are police? This is a persistent notion that is hard to disprove. The onus is on the person making an affirmative statement to present proof it is so. I will not try to prove negative, except to say that the rules outlined above are not violated when a police officer refuses to identify himself as such. You have no right to this information, and even if the officer violates a law or policy in refusing to identify himself, you have no standing to challenge it, as the wrong has been committed against the government or police dept. Can the police do drugs while undercover? What if they do? There may or may not be exceptions to drug-abuse provisions for cops in undercover situations, but these are irrelevant to the accused. Just because the police break the law does not give you any right to seek suppression of their testimony or evidence. The wrong, if there was one, was committed against the government (violation of the law) or the dept through which they are employed (dept. policy), and in neither case do you have the right to enforce such to your advantage. You're Constitutional rights are in no way violated by the police doing drugs, and you therefore cannot request suppression based upon the exclusionary rule. ================================ IV. Reasonable Suspicion, Terry Stops (Stop and Frisk), and Relation to Probable Cause People commonly talk about searches on this board, and sometime confuse the standards for various types. What follows is a discussion of Terry Stops and reasonable suspicion; and probable cause. What is a Terry Stop, When can they be affected? A "terry stop" occurs when an officer stops a citizen and proceeds to frisk/ search them. This is a search and seizure as contemplated by the Fourth Amendment. "4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20. (a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16. (b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment." See: TERRY v. OHIO, 392 U.S. 1 (1968) http://caselaw.lp.findlaw.com/cg The search is allowed when a reasonably prudent officer feels his safety or that of others may be endangered. " 5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [392 U.S. 1, 3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27. (a) Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20. (b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22." Id. at Syllabus 5 What are the limits on how a Terry Stop may be conducted? The search must be reasonably limited to the purpose of securing weapons that pose a danger to the officer or the public, as reasonable under the circumstances. "(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. (f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27." See: Id Good faith is not a defense to an unreasonable Terry Stop. "And simple “‘good faith on the part of the arresting officer is not enough.’ . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” See: Id — quoting Beck v. Ohio, 379 U.S. 89 (1964) Extension to a Vehicle The principles espoused in Terry have been extended to vehicle searches. What's more, when the officer reasonably fears for his safety, he may search the car for weapons, and if he finds drugs or other contraband, he may seize the same and such will be admissible against the defendant(s). "The protective search of the passenger compartment of respondent's car was reasonable under the principles articulated in Terry and other decisions of this Court. Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. If, while conducting a legitimate Terry search of an automobile's interior, the officer discovers contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. " See: Michigan v. Long; 463 U.S. 1032 (1983) at Syllabus 2. http://www.law.cornell.edu/supct What is the Difference Between Reasonable Suspicion and Probable Cause? Reasonable Suspicion is less than Probable Cause on the burden of proof spectrum. "we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.... We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [p31] Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." See: Terry v. Ohio; 392 U.S. 1 at Sec. I and V http://www.law.cornell.edu/supct Terry Searches Are Not Limited To Discovering Weapons A terry search may expand at any time to a probable cause search if the officer learns through the terry search information sufficient to constitute probable cause. Quote:MICHIGAN v. LONG 463 U.S. 1032; 103 S. Ct. 3469 at Syllabus 2 An officer who feels contraband through clothing may seize such during a Terry search, even though he knows it is not a weapon. Quote:Minnesota v. Dickerson 508 U.S. 366; 113 S. Ct. 2130 at Syllabus However, the search may not exceed the scope of the Terry search unless the officer has probable cause. The officer may not expand the search to investigate an item he doesn't immediatly recognize as contraband. Quote:Id at Syllabus ================================ V. Attempt and Conspiracy as Related to the Controlled Substances Act People on this board often confuse attempt, conspiracy, and intent to distribute w/ regards to controlled substance manufacture or possession (which includes growing psychedelic plants, mushrooms, marijuana, extractions, et cet.) What follows is a clarification of the federal statutes and most prevalent common law w/ regards to these concepts. The reader is cautioned that conspiracy is largely a common law concept, and so various states may have differing definitions. As such, federal law is focused upon, though this too draws upon various state law concepts. Conspiracy, In Regards to Controlled Substances The law states: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." See: 21 USC § 846 http://www.law.cornell.edu/uscod No Overt Act Necessary While many states require an overt act be committed, the law as cited above does not. "In order to establish a violation of §846, the Government need not prove the commission of any overt acts in furtherance of the conspiracy. The statute's plain language does not require an overt act, and such a requirement has not been inferred from congressional silence in other conspiracy statutes, see, e.g., Nash v. United States, 229 U.S. 373. Thus, absent contrary indications, it is presumed that Congress intended to adopt the common law definition of conspiracy, which "does not make the doing of any act other than the act of conspiring a condition of liability," id., at 378" See: United States v. Shabani; 513 U.S. 10 (1994) at Syllabus http://www.law.cornell.edu/supct Elements of the Offense While Shebani, supra, states that no overt act need be committed, the Court did rule that the mere assembly of the participants in the conspiracy was an element of the offense. Their must be some agreement between the conspirators to violate the law. "The prohibition against criminal conspiracy, however, does not punish mere thought; the criminal agreement itself is the actus reus and has been so viewed since Regina v. Bass, 11 Mod. 55, 88 Eng. Rep. 881, 882 (K. B. 1705) ("[T]he very assembling together was an overt act"); see also Iannelli v. United States, 420 U.S. 770, 777 (1975) ("Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act")" See: Shebani, supra; opinion http://www.law.cornell.edu/supct So, generally, the elements are the same as for another section of the US Code, with the excision of the requirement for the overt act: "If two or more persons conspire either to commit any offense... in any manner or for any purpose" See: 18 USC § 371 http://www4.law.cornell.edu/usco Attempt, In Regards to Controlled Substances The law states: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." See: 21 USC § 846 http://www.law.cornell.edu/uscod Applications, and Select State Law Therefore, any attempt to violate the controlled substances act, ipso facto, becomes a violation of the law. It is important to understand, that this law makes no exceptions for the truly delusional plans. So you can be convicted of manufacturing LSD via this section, even if you use the orange peels method, or cook up some Foster's beer. Many states have the same principles, and these sections are much wider than conspiracy law, as they generally will criminalize any thoughts and actions taken by an individual themselves, without proof needed of a concerted effort among numerous people to violate the law. For example, in Ohio, that law is thus: " (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense. (B) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the attempt was either factually or legally impossible under the attendant circumstances, if that offense could have been committed had the attendant circumstances been as the actor believed them to be." See: ORC § 2923.02 "Attempt to commit an offense." http://codes.ohio.gov/orc/2923.0 And thus, mandatory minimums will attach, in many states, based upon the conduct as attempted, not as completed. So you better be careful how many orange peels you cut up when attempting to brew some LSD, as your speculated yield will determine your sentencing range. "Based on that analysis, the Chief Justice wrote: “We agree with both the Sixth and Eighth District Courts of Appeals that an attempted possession of drugs is not a separate and distinct crime from possession of drugs, but rather is incorporated into the possession offense. Thus, Taylor was still subject to the mandatory-sentencing provisions of R.C. 2925.11.” See: State v. Taylor; 007-Ohio-1950 (2006) https://www.sconet.state.oh.us/C Take-Home Message RE: Conspiracy/Attempt Conspiracy and Attempt offenses are incredibly broad. Under the federal law, you can be convicted for talking to your friend about producing LSD, if it can be proven you actually intended to do it. As a practical matter, conviction will be difficult, and most are discovered after they take affirmative steps towards the illegal end, but it pays to be aware of the broad range of the federal law. Additionally, the state laws are often as expansive, or more so, than the federal law. You can be convicted for hatching a plan that would have never succeeded, and you may be subject to mandatory minimum sentences based upon what you would have produced had your plan succeeded, or been capable of success. ================================ VI. Take-Home Message, My Advice As you know, I'm not an attorney, but this is my recommendation as to how to handle yourself and your dealings w/ the law. If you disagree, feel free to post your complaint: So what should you learn from this? One, What you don't know can hurt you. Just cuz you think that "well the cops already searched my home, I might as well consent to avoid pissing them off" or "I'll just tell them it was my shroom grow, and I did it so I didn't have to buy anything- it's only personal use", doesn't mean your not killing your case. In the prior examples, your consent for the second search may moot the admissibility of the first. Just cuz the cops know something doesn't mean they get to use it in court. If you had shut up and not consented for the second search, a finding that the first search was illegal might have gotten you off scot free. Now you have to go back to court and will likely have a conviction/sentence, even if its only a fine and probation. In the second example, you trying to damage control by saying "it was only my stuff, I don't sell" did two things: 1. It admitted every element of the offense charged, you just admitted guilt; and 2. It set you up for the SAME EXACT OFFENSE as if you had sold drugs to a hundred friends, in many states. Just cuz you think the cops will go easier on you doesn't mean shit, you don't know the law. When it turns out your admission to growing a single mushroom makes you guilty of and subject to the same offense as if you were a drug dealer, how will you feel then? Shut up. Just cuz you think something is a minor case doesn't mean anything. In Ohio, if you were caught w/ a spore syringe and the cops asked "what are you doing w/ that" and under questioning you finally say: "Yes I was going to grow shrooms, but I didn't even do anything, I don't even have the materials, and I sure won't now" you might think you've helped yourself by being honest and cooperative. The cop will be happy, but you won't when you realize you've just admitted everything the state needed to prove to get a conviction for attempted manufacturing a controlled substance. You WILL have a 2 year minimum prison term as thanks for "being cooperative." Again, Shut Up Another lessen is to ask for an attorney always. Even if your idiot ass opens your mouth later, you may get the statements thrown out cuz questioning must stop when you request an attorney. Still another thing to keep in mind is that you should never sign anything unless its a simple notice or receipt from the police. Do not consent under any circumstances. Cops generally don't ask when they have warrants or probable cause, unless they just want to preclude a later challenge to the probable cause determination- in neither case is it helpful to cooperate. If they're going to search anyways, then your far better off having no consent given than haven given consent. Lastly, don't worry about upsetting the police or trying to get on their good side/ allay their suspicions. Cops are always suspicious. If they are questioning you they are trying to get evidence on you. Trying to "get on their good side" by consenting to a search is idiotic, they are not your friends and you'll gain nothing. Cops trying to promise you leniency if you cooperate are probably lying. While its true that the police have the power to arrest someone if there's probable cause, don't think it will be easier when you cooperate with the cops. The police only have the authority to charge/arrest you, they don't have the authority to set your bond, determine what you will stand trial for, or even keep their original charges in place- all this is the prosecutor or judge's job. If you want to cooperate or strike a deal, shut up and ask for an attorney. Your attorney will advise you if its helpful to deal. Remember, the cops can't promise you a sentence, and their promises to "go easy on you" are without merit. Whether or not you spend the night in jail, the cops seldom have the authority to determine when to release you. For most areas, misdemeanors have set bond schedules and many felonies have to have bond set by a judge, so getting on the good side of the police is worthless. At most it will determine whether they arrest you right then or whether they will just issue a citation as thanks for you damning yourself to a conviction and sentence. As your arraignment or bail hearing, the prosecutor will state the government's position, not the police. Similarly, the cops have no authority to promise you a particular sentence or any consideration from the judge. The prosecutor does this. So how should you handle the police in light of this? My recommendation: Be polite. Say yes sir, no sir. Don't raise your voice. Don't argue, simply deny if you wish. Ask for an attorney immediately. Don't try and talk your way out of it- you're probably going to jail anyways. And don't EVER consent to be questioned or searched. If you want to help the police in their investigation you can always tell your attorney this, and he'll advise if it will be helpful to do so. You lose nothing by refusing to help the cops initially, once you get an attorney you can help them out. And if the cops really cared what you had to say for reasons other than convicting you, believe me, they'd get an attorney to you immediately. As long as you are nice, calm, and polite, the judge will hear you weren't an asshole and this will help you if you need to be sentenced. Its far better to have a cop say: "Your honor he said he wanted a lawyer/ He said he didn't do it" than a cop to say "He admitted it, or He denied it and started arguing with me and getting animated." Shut up, Don't consent to anything, Ask for an attorney, and Be polite but assertive. edit log: Added Miranda Warning section Dec. 7, 07 Added Evidence Suppression section Dec. 14, 07 Added Terry Stop/ Reasonable Suspicion section; Dec 29, 07 Added Attempt/ Conspiracy section; Dec 29, 07 Added Table of Contents/ Bullet Points; Mar 22, 08 Added "Take Home Message"; May 19, 08 Added Terry Search Section: Terry Searches Are Not Limited To Discovering Weapons; July 23, 08 Added Another Thread to This One RE: The Mails and The Law. Now Appended; April 07, 09 The Mail, Shipping, and The Law This will be an ongoing compilation of authority and opinion regarding the shipping of items throught the mail. This covers US Federal Law. I'll update if/when I get around for it. Hopefully those who need this information will do a search and find it. What classes of mail require a warrant to open? First Class, Express, and Priority (which is often considered a first class subset) are considered sealed, and require a warrant to open. Quote: See: UNITED STATES v. VAN LEEUWEN, 397 U.S. 249 (1970) http://supreme.justia.com/us/397 Quote: SEE: Domestic Mail Manual Section 123.2.3 Link to DMM: http://pe.usps.gov/text/dmm300/D Authority for DMM's provision: Quote: 39 USC sec. 3623(d) http://www.law.cornell.edu/uscod -------------------------------- What is a suspicious package? While this is probably impossible to define, as the government will likely use any charecteristic to justify its suspicioun regarding a package when pressed in court, I'll try and provide some sources regarding what is considered suspicious both inside and outside the USPS system (including private carriers). Quote: People v. Shapiro, No. 81920 (10/17/97) http://caselaw.findlaw.com/il-su Quote: http://caselaw.findlaw.com/data2 USA v. Vasquez; No. 99-3982 (8th Cir.) -------------------------------- When can officers (not private employees of a private shipper) detain a package Quote: More to come, post requests, corrections, and hate mail in this thread as you wish. Edited by Alan Rockefeller (06/06/16 04:57 AM)
| |||||||
|
Old Hand Registered: 05/17/04 Posts: 6,899 Loc: Dark side of the |
| ||||||
|
Great thread John! Maybe a mod could sticky this for awhile until it gets turned into a FAQ. The case law included is gold and really makes the points clear.
I see a ton of misconceptions and urban legends that just won't die. Here are some you might add... Confusions between attempt, conspiracy, and intent. A cop has to tell you that he's a cop if you ask. A cop can't break the law when he's undercover or can't use drugs himself. Conditions for warrants and what can be obtained with and without one. Ex. phone records vs. phonetaps, garbage vs. personal effects, etc. Confusion between reasonable suspicion, probable cause, and articulable suspicion. And circumstances where each applies. Interrogation rules, requesting a lawyer be present, etc. Miranda rights and what happens when you're arrested without being read your rights. I see that one a lot where people think the whole case is bogus because they didn't get read their rights when it really has no bearing. I'm sure there are a lot more, but I bet that'll keep you busy for some time. I'm sure I'll learn a few things too. -FF
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Thanks for the suggestions. I'll probably address the miranda warnings next as they're pretty cut-and-dry.
I really don't know what to say about the "ask if they're a cop" thing... I have never found any support for that, and even tried to find a case regarding it. It such a stupid notion there is really no authority on it, cuz nobody ever really advanced the idea. The cops breaking the law part is another good one. The difference between what is admissable and what is illegal are differences that alot of people don't seem to grasp.
| |||||||
|
Old Hand Registered: 05/17/04 Posts: 6,899 Loc: Dark side of the |
| ||||||
Quote: There is an urban legend that if you ask someone if they are a cop they have to admit weather they are or not. I know how stupid that sounds, but I have seen quite a few people think that it's true. I've encountered this falsehood both online and in person quite a few times. It would be good to just clear the air and dispel this one even if there is no case law or statutes to use as reference. One other area I came up with that might be good to include is differences in what the government can get away with vs. what non-government entities vs. what non-law enforcement government agencies can get away with. I'm not really sure what I mean there exactly, but I imagine that there are case law differences. An example might be what specifically a landlord vs. cops vs. CPS vs. building inspector vs. fire marshals could legally do to you. I know that's a bit vague and maybe needs some further development. -FF
| |||||||
|
Old Hand Registered: 05/17/04 Posts: 6,899 Loc: Dark side of the |
| ||||||
|
I think this will make a really good S&S FAQ.
A couple more thoughts... There is a lot of confusion around hearsay and what is admissible as far as evidence and testimony. Perhaps you could clarify what hearsay is and when it is and isn't admissible in court. Another one is percipient knowledge. People are often confused by hearsay vs. suspicion vs. rumors vs. character testimony vs. percipient knowledge. Good luck researching and writing this up, I know that it's a lot on your plate. -FF
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
well it will take awhile, that's fine, I'll work on it when I feel like it
I like your suggestion regarding what government gets away w/ compared to private actors. This ties in w/ "cops can't break the law to enforce the law" myth. Like a garbage inspection, if you were stealing your ex's garbage every week to look for whatever, you'd be charged. But the supreme court ruled that you have no expectation of privacy in your garbage, and thus the police can take it w/out a warrant. So how is this distinction possible? Bullshit, that's how. And yah, I too have heard the "ask if they're a cop" bit, was just saying its hard to provide evidence that an an affirmative fact is false, i.e. its hard to prove the absence of something. Anyways, I just meant if you try and look for a case where an undercover agent's testimony was challenged due to him not identifying himself, you can't find it. It's so meritless that it appears it wasn't brought up. (I'm just using the free lexis site untill I get a new password though)
| |||||||
|
Error: divide byzero Registered: 04/27/01 Posts: 23,480 Loc: Caribbean Last seen: 3 months, 8 days |
| ||||||
|
I made this sticky for now... once you are ready to create a final work rather than a work in progress we can switch the two. Thanks for putting this together.
-------------------- Just another spore in the wind.
| |||||||
|
Old Hand Registered: 05/17/04 Posts: 6,899 Loc: Dark side of the |
| ||||||
|
Thanks Seuss. I'm sure you have a few things to contribute too.
One other thing I thought of is a section on misconceptions that can lead to interaction with the law. When I was just a kid in school they taught us about how England used to jail people who owed money. They told us what a backwards and barbaric practice it was, and that they don't do it in the US. So I was totally shocked when I was arrested at my home and then jailed for a $212 unpaid fine. I really thought that I had some sort of constitutional protection against that sort of thing. I realize that it's a state-by-state issue, but just the mention that it still happens might save a few people from this BS. -FF Edited by fastfred (12/07/07 03:38 PM)
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Good suggestion, fred. I might address it.
I added a section on Fifth Amendment/ Miranda rights
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
I'll update this by the end of the week. I feel compelled to keep going since it was made a sticky
And I realize the layout kinda sucks. If anyone wants to make a better one w/ a table of contents and links to the sections, that'd be cool, it'll probably be necessary as this thread gets larger. And if anyone else wants to type up their own section, I'll add it to my post and give you credit, if you feel like doing the work.
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Added Evidence Suppresion, Lying Cops, Cops Doing Drugs, and "Do cops have to say they are cops?" section.
I think I'll split every section into its own post, and then provide a table of contents in the first post that links to each section? Then when I'm done some moderator/ admin can maybe move the posts to the front of this thread?
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
edit
Edited by johnm214 (12/29/07 05:55 PM)
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Added a small Terry Stop section as per F.F.'s suggestion. I'm aware the formatting is inconsistant, will fix at some point.
Added a conspiracy and attemnpt section in re: CSA Edited by johnm214 (12/29/07 05:56 PM)
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
I added a take-home message/my recommendations to the main post. Since this is just my subjective opinion it shouldn't be given a ton of weight, but I think the message is sound.
If anyone cares to add to it/suggest mistakes or additions, I'd be happy to hear em. This section was motivated by a recent post where a guy, to placate the police and 'try' to help his case, stated to the police "yes that's my mushroom grow, but its only personal use, I just did it to avoid the drug market, and I don't deal". What this guy didn't realize is that this made him guilty of the same offense as if he had been a dealer, so the personal use argument was worthless. While it may help in sentencing, he screwed himself by talking himself into a defacto mandatory minimum. This goes to show that it doesn't pay to try to talk your way out of something or to try to diminish your responsibility. You don't know the law, it doesn't make sense, and your admissions may establish your guilt for a far more serious offense than you could have imagined. Learn from other people, shut your mouth and don't ever talk/cooperate unless someone's life is in danger or your attorney advises it.
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Added section on terry searches:
Terry Searches Are Not Limited To Discovering Weapons A terry search may expand at any time to a probable cause search if the officer learns through the terry search information sufficient to constitute probable cause. Quote:MICHIGAN v. LONG 463 U.S. 1032; 103 S. Ct. 3469 at Syllabus 2 An officer who feels contraband through clothing may seize such during a Terry search, even though he knows it is not a weapon. Quote:Minnesota v. Dickerson 508 U.S. 366; 113 S. Ct. 2130 at Syllabus However, the search may not exceed the scope of the Terry search unless the officer has probable cause. The officer may not expand the search to investigate an item he doesn't immediatly recognize as contraband. Quote:Id at Syllabus ================================
| |||||||
|
Fungal Freedom Fighter Registered: 05/25/07 Posts: 1,804 Last seen: 5 months, 29 days |
| ||||||
|
Has this been updated since the patriot act? ...Cops can pretty much do whatever the fuck they want to...THEY ARE THE LAW! what you say and do matters NOTHING; b/c if it goes against what they say; They win.
Everytime; PERIOD... If you'd like to know the details of what happened to me; I'd love to share, but, trust me, We have NO RIGHTS! We have the right to shut the fuck up, and let the trial run its course...habeos corpeos? nope. Search warrant? nope... It's a police state out here...WAKE UP!
| |||||||
|
Registered: 10/02/08 Posts: 4,042 Loc: UK |
| ||||||
|
The cops entered your home without a search warrant or probable cause and busted you? Did you tell anyone about your illegal activities?
-------------------- "I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man" - Thomas Jefferson Legalize Meth | Drug War Victims
| |||||||
|
Registered: 05/31/07 Posts: 17,582 Loc: Americas |
| ||||||
|
Your welcome to share yoru experience, and I said in the opening post that I'm far from infallible and welcome corrections. I've tried to make this as accurate as possible by quotting directly from opinions where practical.
The entirety of this was written after the patriot act. There really seems to be a disconnect between what people think the patriot act actually effected and the reality. Its an abusive piece of legislation that both major parties and their presidential candidates supported, sure, but it didn't change a whole lot. I'd be shocked if the patriot act had anythign at all to do with your issues. Did you actually fight the case? If you disagree with something name it and provide a source and I'll change it.
| |||||||
|
Fungal Freedom Fighter Registered: 05/25/07 Posts: 1,804 Last seen: 5 months, 29 days |
| ||||||
|
K. (just so you know) This is how it went down with me...I leave my apt. w/ $300 cash in my pocket, and go start my car.Cop approaches my car, and declares "(my)City PD, We have a search warrant to search your apartment" I say, "Okay, Let me see it..." He then opens my door, grabs me by the coat, and YANKS me out the car, slams me against the side and puts me in handcuffs... So I say..."Hey? whats your problem? let me see the warrant! He pats me down, reaches in my pocket, grabs the cash and says "Oh, We're keepin this!" I said..."uh? no your not; Let me see that warrant!"...He then proceeds to drag me by the handcuffs toward my apt..., So I keep saying "Hey?! Whats up? Let me see it! Let me see it, Show me the warrant!" to which he replies "Oh, You're gonna see it" I say "No! I wanna see it right now!"
We get to the bottom of the flight of stairs leading up to my apt. And I put my foot down and said "Look, we anit goin a STEP closer till I see that warrant!" That's when they picked me up and tried to "Man Handle" me up the stairs... SO I start screaming "HELP HELP! The Cops are harassing me! The cops are harassing me! HELP! WHY AM I IN HANDCUFFS? WHERES THE FUCKIN EVIDENCE?! WHY AM I IN HANDCUFFS! (I was screaming b/c I knew that in court it was gonna be my word against theirs and I had better have a witness to the fact that I was detained, in custody, before I ever even saw the warrant!(And I knew they didn't have one!) So they start kickin my ass (trying to) they picked me up and slamed me on my back and jumped on top of me, and put their knee in my chest, (where I couldn't breathe, much less scream) So then, I'm about to die of suffocation when he says "Alright, we'll letcha up, but if you get to screaming again we're gonna have to take you back down...(Remember: All I was screaming for was a witness) so I said "Okay" then they walk me over to their police car and throw me in the back seat and roll all the windows up! WTF! I start screaming again (but nobody can hear me) People are coming out of the Apt, (That I knew) and I'm screamin "HELP! I NEED A WITNESS! THEY DON'T HAVE A WARRANT!" and you know what the cops do? they tell em not to listen to me, and that I was busted, and just to ignore me! ...and that's exactly what they did, just walked right past me with their head down! SO, at this point I'm MAD AS FUCK! they proceed into my apt, and confiscate all the evidence they needed...TO GET A WARRANT! but my thing is; if they already had a warrant, why not just show it to me? do they not have to show it to me? Hell, I'm already handcuffed! Why did they go thru the extra effort of kickin my ass and preventing me from getting a witness? They keep me locked up until my trial; as it turns out; I had witnesses! but it was to late!..their wasn't no "Fightin it" They had all the evidence! so, once they had that; they could bring it to the judge, and convince her to write up a warrant and date it a day before, (Kuz they KNEW I would cop a PLEA) so I couldn't say shit! who notorizes a warrant? THE SAME PEOPLE THAT CREATE IT! so, yeah, by the time my trial was; sure they had a warrant! (of course) what was I gonna do? take it to trial? Bottomline: I never saw the warrant until I was already sentanced and my trial was a done deal... Now how fuct up is that? Check this:(a side note)- When I was in the car I shouted; "YOu can't do this to me! I'm a Godamn AMERICAN!" and they just busted out laughin! That was the "Joke of the day" I could hear them chucklin about at the station! Don't get me wrong; I made a hellofalotta mistakes but,So, what's the point of all this? ...Stay off the fuckin RADAR! kuz if they want you, they can get you...and there anit shit you can do about it! THANKS FOR READING!
| |||||||
|
Registered: 10/02/08 Posts: 4,042 Loc: UK |
| ||||||
|
Damn. That sucks. Did you get a lawyer? I would have contacted the ACLU over that kind of bullshit. You should send them an email anyway, couldn't hurt.
Note to self: carry a mini tape recorder. How did the cops find you in the first place? -------------------- "I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man" - Thomas Jefferson Legalize Meth | Drug War Victims
| |||||||
| |||||||
|
| Similar Threads | Poster | Views | Replies | Last post | ||
![]() |
Miranda rights on misdemeanor charges? | 1,305 | 14 | 08/09/04 04:40 PM by Randolph_Carter | ||
![]() |
Was this police search legal? ( |
4,046 | 21 | 08/01/05 02:31 PM by TysonTomko | ||
![]() |
Whats the most common way people get caught growing shrooms ( |
8,537 | 28 | 09/08/06 05:43 AM by Mead | ||
![]() |
Who needs a good legal service? *UPDATE 7/8/04* | 2,605 | 13 | 07/12/04 12:26 AM by Locus | ||
![]() |
is this legal? | 1,016 | 13 | 06/22/06 09:38 PM by CptnGarden | ||
![]() |
delete *DELETED* ( |
5,429 | 29 | 07/03/06 08:37 PM by ralphster44 | ||
![]() |
Spores = less legal than we thought? | 5,125 | 15 | 12/17/03 12:36 AM by Granola | ||
![]() |
Is MDMA legal anywhere? | 7,083 | 15 | 03/16/05 06:15 PM by dblaney |
| Extra information | ||
| You cannot start new topics / You cannot reply to topics HTML is disabled / BBCode is enabled Moderator: Enlil, Alan Rockefeller 34,403 topic views. 0 members, 1 guests and 1 web crawlers are browsing this forum. [ Show Images Only | Sort by Score | Print Topic ] | ||


