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Invisiblejohnm214
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Registered: 05/31/07
Posts: 17,582
Loc: Americas
Commonly Misunderstood U.S. Legal Issues +The Mail and The Law * 5
    #7724870 - 12/06/07 03:01 PM (16 years, 1 month ago)

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. :laugh:

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
    What is entrapment?  What isn't entrapment?  Common Misconceptions.

  • II.  Miranda Warnings, Right to Remain Silent, Exclusion of Statements
    What are the Miranda Warnings?  When are the warnings Required?  What remedies are available?

  • III. Evidence Suppression, Cops lying, Cops Breaking the Law
    When can evidence be suppressed?  What are the exceptions?  Can the police break the law during an investigation?

  • IV.  Terry Stops, Reasonable Suspicion, Noncustodial Arrests
    What is a terry stop?  What limits are their on when a Terry Stop may be conducted?  Extension to Automobiles.

  • V.  Attempt and Conspiracy RE: Controlled Substances
    What is attempt and conspiracy?  No overt acts necessary.

  • VI. Take-Home Message
    Shutup, sign nothing, don't consent, don't worry about the police- worry about the prosecution.

  • Appended:  The Mail and The Law
    This used to be a seperate post which I've appended to this one for the sake of convenience.


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/scripts/getcase.pl?navby=CASE&court=US&vol=503&page=540

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/scripts/getcase.pl?navby=CASE&court=US&vol=425&page=484

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/scripts/getcase.pl?navby=CASE&court=US&vol=411&page=423

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/scripts/getcase.pl?navby=CASE&court=US&vol=503&page=540

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/scripts/getcase.pl?navby=CASE&court=US&vol=287&page=435
===================================


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/scripts/getcase.pl?court=US&vol=384&invol=436

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/scripts/getcase.pl?court=us&vol=000&invol=02-1371


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/scripts/getcase.pl?navby=CASE&court=US&vol=479&page=157

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/scripts/getcase.pl?navby=CASE&court=US&vol=401&page=222

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/scripts/getcase.pl?navby=CASE&court=US&vol=446&page=291

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/scripts/getcase.pl?navby=CASE&court=US&vol=467&page=649

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/387/294/case.html

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/cgi-bin/getcase.pl?court=us&vol=116&invol=616#630

"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/cgi-bin/getcase.pl?navby=case&court=US&vol=367&invol=643

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/cgi-bin/getcase.pl?court=US&vol=468&invol=897

"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/scripts/getcase.pl?navby=CASE&court=US&vol=468&page=897

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/cgi-bin/getcase.pl?court=us&vol=414&invol=338

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/scripts/getcase.pl?court=US&vol=466&invol=109

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/scripts/getcase.pl?court=US&vol=467&invol=431

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/articles/mi_qa3805/is_199806/ai_n8800879

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/cgi-bin/getcase.pl?court=US&vol=392&invol=1


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/html/historics/USSC_CR_0463_1032_ZS.html


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/html/historics/USSC_CR_0392_0001_ZO.html


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:

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.


  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:


In Michigan v. Long\the seizure of contraband other than weapons during a lawful Terry search was justified by reference to the Court's cases under the "plain-view" doctrine. That doctrine -- which permits police to seize an object without a warrant if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it -- has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. Thus, if an officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons.


  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:

the officer who conducted the search was not acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband. Under the State Supreme Court's interpretation of the record, the officer never thought that the lump was a weapon, but did not immediately recognize it as cocaine. Rather, he determined that it was contraband only after he squeezed, slid, and otherwise manipulated the pocket's contents. While Terry entitled him to place his hands on respondent's jacket and to feel the lump in the pocket, his continued exploration of the pocket after he concluded that it contained no weapon was unrelated to the sole justification for the search under Terry. Because this further search was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.


  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/uscode/21/usc_sec_21_00000846----000-.html

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/html/93-981.ZS.html

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/html/93-981.ZO.html

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/uscode/18/371.html

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/uscode/21/usc_sec_21_00000846----000-.html

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/2923.02

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/Communications_Office/summaries/2007/0509/060568.asp

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:


It has long been held that first-class mail such as letters and sealed packages subject to letter postage - as distinguished from newspapers, magazines, pamphlets, and other printed matter - is free from inspection by postal authorities, except in the manner provided by the Fourth Amendment




See:  UNITED STATES v. VAN LEEUWEN, 397 U.S. 249 (1970)
http://supreme.justia.com/us/397/249/case.html

   
Quote:


    Matter Closed Against Postal Inspection

    Matter closed against postal inspection includes First-Class Mail (including Priority Mail) and Express Mail. The USPS may open mail other than First-Class Mail or Express Mail to determine whether the proper rate of postage is paid. Material wrapped or packaged so that it cannot be examined easily or examined without destruction or serious damage is closed against postal inspection and is charged the appropriate First-Class Mail or Express Mail rate.




SEE: Domestic Mail Manual Section 123.2.3 Link to DMM: http://pe.usps.gov/text/dmm300/DMM300_landing.htm


Authority for DMM's provision:
Quote:

39 USC sec. 3623(d)

    Quote:
    The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. The rate for each such class shall be uniform throughout the United States, its territories, and possessions. One such class shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee.



39 USC sec. 3623(d)
http://www.law.cornell.edu/uscode/html/uscode39/usc_sec_39_00003623----000-.html





-----------------------------------------

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:

Based upon experience and drug-trafficking intelligence, the United States Postal Inspection Service has developed a drug package profile for packages deposited in the Express Mail and Priority Mail. Profile characteristics include: (1) heavy brown paper wrapping; (2)
heavily taped seams; (3) handwritten address label; (4) sent from one individual to another; (5) mailed from a zip code different from the address; and (6) a fictitious address. While it is uncertain whether any one of these criteria, standing alone, would support a finding of reasonable articulable suspicion, in various combinations these criteria might indeed support such a finding.



People v. Shapiro, No. 81920 (10/17/97)

http://caselaw.findlaw.com/il-supreme-court/1200599.html



Quote:

The package roused the officers' suspicions because it was
incorrectly addressed even though the sender and recipient had the same last name; the air bill was handwritten, marked "priority overnight," and contained no account number; and the package was sent from California.



http://caselaw.findlaw.com/data2/circs/8th/993982P.pdf
USA v. Vasquez; No. 99-3982 (8th Cir.)





-----------------------------------------------

  When can officers (not private employees of a private shipper) detain a package

Quote:

[l]aw enforcement authorities must possess a reasonable suspicion based on articulable facts that a package contains contraband before they may detain the package for investigation," United States v. Johnson, 171 F.3d 601, 603 (8th Cir. 1999)



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)


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: fastfred]
    #7725818 - 12/06/07 07:11 PM (16 years, 1 month ago)

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.


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: fastfred]
    #7726905 - 12/06/07 11:50 PM (16 years, 1 month ago)

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)


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: fastfred]
    #7729287 - 12/07/07 03:36 PM (16 years, 1 month ago)

Good suggestion, fred. I might address it.

I added a section on Fifth Amendment/ Miranda rights


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: johnm214]
    #7751051 - 12/12/07 07:51 PM (16 years, 1 month ago)

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.


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: johnm214]
    #7760259 - 12/14/07 09:27 PM (16 years, 1 month ago)

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?


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: johnm214]
    #7811003 - 12/29/07 04:27 PM (16 years, 1 month ago)

edit


Edited by johnm214 (12/29/07 05:55 PM)


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: johnm214]
    #7811021 - 12/29/07 04:31 PM (16 years, 1 month ago)

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)


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: johnm214]
    #8420418 - 05/19/08 03:13 PM (15 years, 8 months ago)

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.


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: johnm214]
    #8671751 - 07/23/08 01:02 PM (15 years, 6 months ago)

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:

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.


  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:


In Michigan v. Long\the seizure of contraband other than weapons during a lawful Terry search was justified by reference to the Court's cases under the "plain-view" doctrine. That doctrine -- which permits police to seize an object without a warrant if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it -- has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. Thus, if an officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons.


  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:

the officer who conducted the search was not acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband. Under the State Supreme Court's interpretation of the record, the officer never thought that the lump was a weapon, but did not immediately recognize it as cocaine. Rather, he determined that it was contraband only after he squeezed, slid, and otherwise manipulated the pocket's contents. While Terry entitled him to place his hands on respondent's jacket and to feel the lump in the pocket, his continued exploration of the pocket after he concluded that it contained no weapon was unrelated to the sole justification for the search under Terry. Because this further search was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.


  Id at Syllabus

===================================


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: FellowGrower]
    #9997460 - 03/18/09 08:12 PM (14 years, 10 months ago)

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.  :smile2:


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: FellowGrower]
    #10002711 - 03/19/09 05:20 PM (14 years, 10 months ago)

yeah, I carry a tape recorder in my car, not on my person though. 



Anyways, it sounds like you plead out, and likely without reserving the right to appeal, so it sounds like it doesn't matter if what they did was legal or not since you accepted it.


But it seems like your entire evidence is what you didn't see.  That's not going to help you.  If the judge backdated the warrant that sucks, but unless you can prove it you are screwed.



And I doubt that really happened, but whatever. (the judge backdating the warrant).  If it did you guys need to get a better clerk up there and make those things be filed by an independant party.


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Re: Commonly Misunderstood U.S. Legal Issues +The Mail and The Law [Re: Kestrelj]
    #10772639 - 07/31/09 04:31 AM (14 years, 5 months ago)

Well, the court isn't in session right now, so I doubt it was in the last thirty days.


Are you sure the attorney thing is actually present law?  The Obama administration is trying to erode the protections that normally exclude statements made by an arrested person after he requests an attorney if the statements were in response to further questioning.  I wasn't aware that case was disposed of yet, but cite it if it has been.


As for the search warrant thing, I'm unsure of what your referring to.  If you can cite a case or some source mentioning it, that wold be helpful. 


Thanks for the suggestions.


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Re: Commonly Misunderstood U.S. Legal Principles; Work in Progress [Re: all_for_war]
    #13040067 - 08/12/10 03:16 AM (13 years, 5 months ago)

Quote:

fastfred said:
Quote:

if you were not read your rights, it can be found on the copcarcam, as well as your arrest, in which they clearly abused their power as law enforcers (very commonly done), and thus will most likely get your charges wiped clean




Funny that this is posted in this thread. Dumbasses are always saying stuff like this.

99.9999895% of the time it doesn't matter jack shit if they read you your rights or not. All getting your rights read to you matters is if they want to question you AFTER you're arrested. Otherwise it doesn't matter jack shit, and why would they arrest you if they didn't already have enough on you?

They can use anything you said before you were arrested and anything you say after you've been read your rights....
-FF




Yeah, I agree.  (The question fred was responding to was addressed in the original post).

People really don't get the Miranda thing.  As Fred said, all it does is AT BEST make certain statements inadmissable, these will be things the suspect said after being arrested (reasonably believed to be arrested) if he didn't intelligently waive his rights to silence and lawyer.  There will NEVER be a case where the failure to properly Mirandize someone means the case must be dismissed as a legal matter (absent some extraordinary situation where the Miranda issues are inextrably tied to the case as a whole, there's really no never in the law, but this is about as close as you get to that).  When people speak of such things, they really mean the suppression of statements made the state decide to drop the charges/court threw it out  due to lack of sufficient evidence to try the case/support the conviction.

As Fred said, Miranda is seldom a dispositive issue.  Even if you win, people that talk to cops (everybody) are the same people that talk to cops prior to the arrest or after the Mirandizing and all the other evidence can still come in.  Your "best friend" will still testify against you and so will the cops that seized evidence and saw your shady ass doing sketchy things.
Quote:

all_for_war said:
i didnt actually read OP's entire post but just incase you didnt add this. All cops lie at one point or another and sadly when its your word against a cops the courts usually side with the cop. for example getting reasonable cause to search your car they can just say they smelled marijuana smoke even if there is no smell. Or if they are at your door and for some reason suspect you for having drugs in the house but dont have enough evidence for reasonable cause they will make up an excuse like "i smelled marijuana smoke" etc....cops are people and people lie.




I agree with you (though I'm sure there are many cops that don't intentionally falsely testify/report, the power of the human mind to rationalize antisocial conduct is without bounds- the same reason the criminals commit terrible crimes is the same reason cops lie, people have a need to feel they are in the right and justify their actions/impulses).

I would clarify though that this post is about the law, and the issues you deal with are ones of fact or practicality.  It is a shame that cops lie and courts believe them/grant them too much credibility, but that doesn't have anything to do with the law per se, so it isn't addressed.

This post deals with what lies they have to tell, not with whether they can lie, to get the arrest/warrant/conviction, et cet.


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Re: Commonly Misunderstood U.S. Legal Issues +The Mail and The Law [Re: all_for_war]
    #13040085 - 08/12/10 03:34 AM (13 years, 5 months ago)

Quote:

arghbilly said:
Quote:

all_for_war said:
but if they intercept and than the customer accepts the package......cant they get raided like yuh huh




only if there's proof you ordered it, like an invoice in it clearly stating you bought it when they open it up. 

as far as I know no attempts were made to con the buyers into signing for the seeds, so I guess a signature wasn't good enough evidence for the DEA to bother. Emery's forums had always warned against signing for the stealth letters anyways nobody would've signed hence the western union scheme the DEA came up with.

some people did reply to the DEA scam letter but nothing happened to them because they didn't wire any money since Emery got the word out he was busted right away on the forums and website.





Shipment and the law is a big misunderstanding:

You don't have to sign anything to be convicted of ordering, posessing et cet  You don't have to sign anything to get raided or a warrant.  In the world of search and seizure, there is very little that has to be proven per se, the name of the game is "reasonable" and "probable" and that doesn't give you much absolute prohibitions to rely on.

Generally, the confusion lies in the use of anticipatory warrants, something used often in federal cases/mail cases.  These allege that probable cause doesn't exist but will exist at some point (such as after the suspect recieves delivery) and the warrant is granted under the condititon that the allege circumstance comes to fruition.  Just because the warrant may require deliver to be effective doesn't mean that another warrant for search couldn't be obtained and it surely doesn't mean that you can't be indicted and convicted without such. 

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if they did let the letters through, they can't kick in your door 3 days later and arrest you for it. how are they going to get a warrant? maybe if there was payment records on Emery's servers they seized (nothing was on there) with your name and address on it. mail is the #1 way to go




Sure they can, why couldn't they?  Why do you think they need "proof" of anything at all?  A money order sent to a known drug trafficker with payment for drugs that was in response to a solicitation for such is more than enough evidence to get a warrant.  What exactly do they need to have, a signed confession?  Seems to me that's what you'd be giving them anyways, sans signature.

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all_for_war said:
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arghbilly said:
cocaine is a different class of controlled substance, maybe that gives them enough cause to search but that doesn't make sense. suppose you wanted to set somebody up, you could just mail them some blow and they'd go to jail although 22kilos is huge.



drugs are drugs in the DEA's eyes




Well, the DEA dicks around in politics, but your point is well taken.  In the eyes of the law, there is no difference.  The same evidence that can get you raided for a murder case can get you raided for a speeding case.  People should be careful to not conflate the discretion of the investigatory/prosecutorial body with the confines of the law.  Just cuz they won't drop in to your pad from black helicopters to investigate a speeding ticket doesn't mean they can't.


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Re: Commonly Misunderstood U.S. Legal Issues +The Mail and The Law [Re: Action Jackson]
    #13040099 - 08/12/10 03:44 AM (13 years, 5 months ago)

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DryGrain said:
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all_for_war said:
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DryGrain said:
Great write-up!

I would add that private shippers such as Fedex and UPS do not need a warrant to open a package, when you sign the shipping label, the small print on the back includes the clause that they may open any package at any time for any reason. I did not know that only First-class, Express, and Priority mail required a warrant, I thought the protection extended to everything sent in the U.S. Mail.



none of them require a warrent when shipping or receiving internationally. and i dont think that they even need a warrent for nationally sent mail.




To open U.S. mail that is not addressed to you is a federal crime, requiring law enforcement to get a warrant signed by a judge of a federal court.





Please read the writeup.

You say that opening mail that isn't addressed to you is a federal crime as if that means something in context of the situation discussed- how so?

Lets say your correct, now your sitting in jail because someone opened your mail illegally... What are you going to do about it?  Nothing, that's what.  The fact that soemone else commirted a crime has nothing to do with whether you did nor the legality of your conviction.  This is a common misconception that people have and is addressed in the original post:  cops break the law all the time, its not going to help you get off just cuz they commited a crime.


As to the earlier posts, I did addressess the issue of USPS and private shippers.  See the original post  basically everything in the USPS mailstream is protected to some degree, however; warrants are required per se only for First Class, Priority, and Express service classes.  Exceptions exist
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Action Jackson said:
Do packages containing chocolates get scanned by some machine that determines if there's something else in the package other than chocolate?

Let's say my friend wants to send me some fruity chocolate that has fruit in the chocolates, but let's assume this fruit is banned from my country for whatever reason.

Is it possible that customs put packages through a scanner machine thing that detects these fruits/drugs/whatever is banned?

Let's say the fruit is crushed up and put into this chocolate, would it be found out?




What's possible and what's realistic are very, very far apart.  A better question would be whether these are reasonable concerns, and the answer would seem to be no, as Fred said


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