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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Quote:
GuruBushHippie said: That's what i figured. How would they even prove that I KNEW it was bad... other than the fact that I admitted it on the net.
Usually it takes something like writing checks on a closed account or an accout that has been overdrawn so long that you'd have to know.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid]
#16956992 - 10/03/12 04:52 AM (11 years, 8 months ago) |
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Quote:
Diploid said: So I understand that a police officer can generally arrest me without cause if they feel like it and there's pretty much nothing I can do about it because they enjoy qualified immunity.
Slight exageration.Quote:
But if a civilian, say a store security guard, detains me for shoplifting and when the police arrive it turns out their investigation confirms I WAS NOT shoplifting, do I have recourse under tort laws to claim false arrest and go after the store? Is it strictly a civil matter or can it be a criminal case too? How does it differ from kidnapping?
The tort of false arrest has an exception for a vendor who detains someone they reasonably believe to be in the act of stealing. The "reasonably believe" part is the part that gets litigated. Seeing you put an item in your pocket and walk out of the store is probably plenty for them to detain you. Wearing a hoodie is probably not enough...most cases are somewhere in between.
As far as a criminal prosecution, kidnapping and criminal false arrest both require the "unlawful" detainer/movement of a person without their consent. If the detainer is lawful under tort law, it's not kidnapping. The way it generally plays out, however, is based more on circumstances than anything else. If a store owner takes you in the back room and locks you in there for 12 hours, he's probably gonna be charged with kidnapping. If he detains you improperly just long enough for the cops to arrive, you have a suit for false arrest, but it's very unlikely that criminal charges will be brought.
Quote:
What if the arrest is not by civilian store security personnel but by an off-duty police officer or a police officer out of his jurisdiction?
How does "false arrest" work?
A police officer out of jurisdiction is a normal citizen...no difference. An off-duty police officer may or may not be a cop while off-duty. Different jurisdictions have different rules about this. Generally, if an officer is required to act as a cop even while off duty, qualified immunity attaches.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Quote:
GuruBushHippie said: Shit just went down. A dude who was up at my place for my neighbor's party got his car stuck in a ditch and called AAA. It attracted attention from other older neighbors who then called the cops. The dude got arrested on the grounds of DWI, but the cops never actually saw him operating the vehicle, nor did anyone admit to him having done so. Can they actually convict him of a DWI on the basis of just being drunk and being the owner of the car?
They can certainly charge him, but there are quite a few defenses available to him in this case...Who's to say he didn't decide to get a stiff drink to help him cope with the fact that he ran the car into a ditch?
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Absolute

Registered: 06/30/12
Posts: 488
Loc: Amish Paradise
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Re: Ask a defense attorney [Re: Enlil]
#16957545 - 10/03/12 08:45 AM (11 years, 8 months ago) |
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Do you have to submit to a store or security guard detaining you?
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Alan Rockefeller
Mycologist

Registered: 03/10/07
Posts: 48,427
Last seen: 15 hours, 54 minutes
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Re: Ask a defense attorney [Re: Absolute]
#16957780 - 10/03/12 09:42 AM (11 years, 8 months ago) |
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Quote:
Absolute said: Do you have to submit to a store or security guard detaining you?
I'll wait for Enlil's answer on this, but also remember that store policy usually says they can't touch a shoplifter. Often they will ask you to stay, but if you leave they won't physically restrain you. I am not sure if it is legal to leave if they tell you not to, Enlil?
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Absolute] 1
#16957831 - 10/03/12 09:53 AM (11 years, 8 months ago) |
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Quote:
Absolute said: Do you have to submit to a store or security guard detaining you?
You don't have to submit to a security guard, no...but you also don't have the right to assault him. Similarly, he doesn't have the right to assault you. If you haven't taken anything, you can walk right out and ignore any request he makes for you to stop, but if he grabs you to restrain you (and is doing so in the reasonable belief that he is stopping you from leaving with stolen merchandise), then you don't have any right to defend yourself from this.
In any case, this is a risky situation for both the security guard and the shopper. Both run the risk of assaulting the other. This is why security guards are usually trained not to physically restrain someone who is resisting. If this ever went to court, the analysis would be a "reasonable force" analysis. First, the jury would have to decide whether or not the guard's use of force was a reasonable application of force in defense of property. This analysis will weigh the type and amount of force used as well as the information available to the guard at the time of the application of force. If the guard's use of force is found to be unreasonable, then the guard (and the store) becomes liable.
The next analysis is whether or not the shopper's use of force is reasonable. This, of course, is affected by whether or not the guard's use of force was reasonable...for instance, if the guard used unreasonable force, then the shopper is in a self-defense situation, and the shopper's use of force is analyzed for reasonable under those circumstances. If the guard acted reasonably, on the other hand, the shopper's use of force will be analyzed accordingly and much less force would be considered unreasonable.
This type of thing is a can of worms. Split second decisions are made by the guard and the shopper...Whether they are reasonable or not will ultimately be decided by a jury in the sterile environment of a jury room. What seems reasonable in the heat of the moment is often not seen that way in retrospect. This is why most companies choose to make the decision before an incident occurs.
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joshisstoned
Motorcycle Enthusiast


Registered: 05/24/09
Posts: 3,544
Loc: Ohio
Last seen: 9 years, 10 months
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Re: Ask a defense attorney [Re: Enlil]
#16960072 - 10/03/12 04:39 PM (11 years, 8 months ago) |
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You're good.
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Anonymous #11
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x
Edited by Anonymous (10/08/16 04:35 AM)
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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I wish I could be of more help, but you're talking about details of a system I don't know. In my jurisdiction, a court ordered diversion will always "go through". Usually, the probation department will review a case for a diversion and make a recommendation to the judge, but the judge is the final say. That is probably true in NZ as well, but I can't say with any certainty.
As far as fines and fees, that is something I would know nothing about. Where I work, a diversion still requires one to pay a fine, but it isn't the entire fine of every original count. I'm sure every jurisdiction does it differently though.
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: Enlil]
#16965654 - 10/04/12 02:09 PM (11 years, 8 months ago) |
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Quote:
Diploid said: So I understand that a police officer can generally arrest me without cause if they feel like it and there's pretty much nothing I can do about it because they enjoy qualified immunity.
Enlil said: Slight exageration.
Very slight:
There's another video going around where about 30 of these abuses are collected. It's depressing to watch.
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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LySergic D
Drink all day and rock all night


Registered: 10/20/11
Posts: 7,583
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Re: Ask a defense attorney [Re: Diploid]
#16966054 - 10/04/12 03:06 PM (11 years, 8 months ago) |
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Hey Enill, Im not sure if i mentioned it but i got 2 felony charges and 1 misdemeanor dropped if i plead guilty to 1 count of Delivery/Manufacture. I ended up pleading guilty to that a few weeks ago now. Anyway, my sentencing is in a month and i just wanted your opinion on the possible outcome for me.
This is my first offense. Ive been going to NA classes for about a month and have taken a substance abuse assessment. Ive paid all my court fees and such thus far.
Do you think im gonna go to jail for the 1 felony? Or do you think i might get off with a whole bunch of probation time?
--------------------
Broken heart don't feel so bad You ain't got half of what you thought you had Rock you baby to and fro Not too fast and not too slow
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: LySergic D]
#16966092 - 10/04/12 03:11 PM (11 years, 8 months ago) |
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You cut a plea deal without a recommended sentence? That's kinda fucked.
I can't tell you what your sentence will be. That varies widely from state to state, county to county and judge to judge. I can tell you that you're not likely to get very much time, if any.
Just wear a suit or nice shirt and tie to sentencing. Be very remorseful. The NA will help.
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LeeHarvOz
Homie



Registered: 10/13/10
Posts: 2,339
Last seen: 1 year, 5 months
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Re: Ask a defense attorney [Re: Enlil]
#16970404 - 10/05/12 07:55 AM (11 years, 8 months ago) |
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i have a question. why do the police never search my trunk? of all the times i've been pulled over in my or someone elses car and even with two of the incidents ending in multiple arrests the cops have never ventured into the trunk. i even had a bowl and a gram or two of weed in the trunk both times i was arrested and they brought the dogs out on both those occasions and didnt open the trunk. did i just get lucky or is there a legal reason for this?
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: LeeHarvOz]
#16970545 - 10/05/12 08:39 AM (11 years, 8 months ago) |
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They can't without probable cause.
They can search the passenger compartment of the car under Terry v. Ohio if they have reasonable suspicion that you have a weapon. To open the trunk, however, they need to have probable cause. Probable cause is a somewhat higher standard than reasonable suspicion.
A dog alerting to the trunk would give them probable cause to search, but without that or some other facts, they can't open it and search.
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Anonymous #19
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Re: Ask a defense attorney [Re: Enlil]
#16970816 - 10/05/12 09:53 AM (11 years, 8 months ago) |
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Cops can be just as lazy as anyone else. I got arrested at a fake K-9 checkpoint for cannabis in a decriminalized state. I of course took the next exit right after the sign as all the stoners who didn't try to toss their shit out of the window did. They didn't actually have any dogs, but they stopped searching after I caved in and told them there were 3 joints locked in the glove box. What they didn't find was much more serious. I had about 9 or so ecstasy pills in about three different baggies, well hidden in our luggage in the trunk. I don't know if they'd have ever found either if I had not told them where the weed was, but in restrospect, I've convinced myself I did the right thing since they stopped searching after they found the joints. I'm sure life would be much different if I'd had felony charges from the MDMA and possibly distribution since they weren't all in one bag, as opposed to a cannabis charge that shouldn't be visible to anyone running a background check.
And this brings me to another question, Enlil, you probably aren't familiar with the specific laws in Mississippi, but when something is not supposed to be on your record, how often is that actually the case. I was arrested, fingerprinted, booked, payed my bond, and that was literally the last I ever heard of it. The cops told me I didn't have to come to court that my bond money would pay the fine and that would be the end of it. I was pulled over again in the same state less than a year later and there was no warrant for my arrest. I also received a drivers license from the same state several years later, again with no apparent repercussions from the event, even though the law states that any violation of the Uniform Controlled Substances Act in MS can/will result in a six month suspension of driving priviledges. If memory serves me correctly there should be no public record of the conviction and the MS bureau of narcotics is only supposed to keep their private records for two years. Would you expect anything to show up on a background check? I've been employed with the same company since this happened so have no idea if this is something that might show up somehow.
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NizzyJones
Fight evil with funk


Registered: 08/22/06
Posts: 2,082
Loc: Somewhere North of Normal
Last seen: 2 years, 1 month
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Ouch, man. With the glovebox locked I believe they'd have needed a warrant to open it without the confession, and as Enlil said above they'd need a pretty good reason to have begun tossing the trunk
-------------------- Wildflower seed on the sand and stone, may the four winds blow you safely home Curriculum vapidum (dry herb vapes)
Edited by NizzyJones (10/05/12 10:04 AM)
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Stonehenge
Alt Center


Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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#19 are you saying you took an exit and they pulled you over and searched your car for that alone? I've heard of the fake checkpoint gag but normally there are no exits and they look for people doing an illegal u turn to avoid it. This gives them a reason to pull the person over whereas taking a legal exit would not. I suspect you took an illegal turn. Did you get a court date and fail to show up? Did you enter a plea by mail? It sounds really odd.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 68,233
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: NizzyJones]
#16970916 - 10/05/12 10:19 AM (11 years, 8 months ago) |
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Quote:
NizzyJones said: Ouch, man. With the glovebox locked I believe they'd have needed a warrant to open it without the confession, and as Enlil said above they'd need a pretty good reason to have begun tossing the trunk 
Whether they need a warrant and/or probable cause to open the glove box is a question that has not been resolved by the Supremes. The 10th circuit has held that they can terry frisk a locked glove box. (US v. Palmer, 360 F.3d 1243 (2004)) If you live in the 10th circuit, that is the current law in your jurisdiction. If you don't live in the 10th, a court might still uphold such a terry frisk relying on the Palmer.
At this point, I would say that a locked glove box is not safe against a terry frisk. Until the Supremes hears a case on it, we just don't know.
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Anonymous #19
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Re: Ask a defense attorney [Re: Stonehenge]
#16971501 - 10/05/12 12:19 PM (11 years, 8 months ago) |
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Quote:
Stonehenge said: #19 are you saying you took an exit and they pulled you over and searched your car for that alone? I've heard of the fake checkpoint gag but normally there are no exits and they look for people doing an illegal u turn to avoid it. This gives them a reason to pull the person over whereas taking a legal exit would not. I suspect you took an illegal turn. Did you get a court date and fail to show up? Did you enter a plea by mail? It sounds really odd.
Yes, legal exit, off an interstate in bumfuck Mississippi, and yes they flagged us over as they did everyone that took that exit. They had the whole tri-county narcotics task force out there. They had pigs in the woods with binoculars looking for people tossing shit out of their windows. They had grills where they were cooking food to stuff their fat faces with when they weren't busy harassing people. It was literally a fucking party for them. RVs, lawn chairs, big ol' pile of seized booze, etc. It was mardi gras weekend and they were a dry county to boot. So they were stealing all sorts of people's alcohol and presumably ticketing them for that as well, though no one was in the holding cell for just alcohol. I'm pretty sure it was all just a big revenue scam for them. Apparently they do the same thing every year at that time picking on all the party heads going to New Orleans for Mardi Gras. Perhaps keeping my mouth shut and sticking to my story of needing to urinate they would have given up before ever finding anything and let us go. I'll never know. They let my girlfriend follow the police van full of us suckers, none of which were ever handcuffed, to the nearest jail and bail me out after being processed. If you didn't have the cash, they said they would take you to an ATM at some point later. Being we were headed to Mardi Gras I had almost enough cash on me to cover my bond, my girlfriend paid the remaining $20...
Like I said, marijuana is decriminalized in Mississippi. I did not know that at the time however. I spent most of that weekend thinking my life was ruined. It wasn't until I returned home from that trip that I found out it wasn't such a big deal.
http://norml.org/laws/item/mississippi-penalties-2?category_id=868
Apparently its not even classified as a misdemeanor, at least that is what NORML's website would have you believe. No jail time for less than 30g and maximum fine of $250 for a first offense. The worst part is the 6 month drivers license suspension. Although apparently the fact that it was in a motor vehicle anywhere other than the trunk could have landed me in jail for 90 days. Yes the paperwork/ticket I got upon bonding out of jail had a court date if I wanted to contest the case. I don't remember if they said not showing up would result in a plea of nolo contendere or guilty. Either way, they specifically said I didn't have to show up to court and that the bond money would go to pay the fine. If I remember correctly the state I lived in at the time was one of the few that didn't honor other states license suspensions, meaning it wouldn't have mattered if Mississippi suspended my drivers license, my state wouldn't have cared, though I would have assumed that my out of state license would not have been valid in Mississippi even if my own state did not honor their suspension, but when I got pulled over in Mississippi again several months later the cop said nothing about my drivers license being suspended, but he did want to search my car. (He supposedly pulled me over because my tags did not return a response, wasn't speeding, which was probably a red flag to him given I was in an black tinted out sports car at like 5AM in the morning)
Honestly I think it was all just a cash grab on their part. They could have dismissed everyone's case that didn't show up to contest it for all I know. They got my $404 in cash and that is really probably all they cared about. I hate knowing my prints and mugshot are likely in the system now more than anything.
Which leads me back to my original question about all of this. What, if anything, would come back from this incident on a criminal background check. Record of an arrest, with no details as to what for? Nothing? How would I explain my prints in whatever database they are likely in. Arrest for which charges were never pressed?
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Stonehenge
Alt Center


Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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If its a noncriminal violation, which it sounds like from what you are saying, then there will be no criminal record. You are required to show up in court on all criminal cases far as i know, even misdemeanors so it sounds like a traffic type offense. I would not worry about it but we will let enlil have the final say on that. I don't believe it would show up on any database search because they normally only look for warrants, criminal charges or convictions. Its just barely possible that an auto insurance company would find it but even that is unlikely since its not a traffic offense per se.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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