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chabouk

sjfcontrol wrote: When was the "Terry" case, and where can more info regarding it be found?

http://en.wikipedia.org/wiki/Terry_v._Ohio" onclick="window.open(this.href);return false;

chabouk

sjfcontrol wrote:
srothstein wrote:The arrest was made when the cop stopped the person from leaving the scene.
Hmmm, In a 'normal' traffic stop, like for issuing a speeding ticket, is that an arrest? I thought you were considered "detained", as you were not allowed to leave (if you do, expect to see an aerial view of your moving vehicle on the Fox News channel), yet you were not under arrest.

If you're arrested, don't they have to tell you "you're under arrest", and Mirandize you?

Yes, a normal traffic stop is an arrest.

The term the courts use is "seized". Any time a reasonable person believes they are not free to leave, they are "seized". You can call it an arrest, or a detention, but that's semantics. No handcuffs have to be involved, nor an enclosed space, nor even being told they're can't leave.

chabouk

srothstein wrote:
chabouk wrote:And he persisted in believing so, despite his sergeant's doubts. "It's in the Penal Code somewhere. I don't know where, but I can look it up."

Here's the thing about arresting someone on probable cause that a crime has been committed: unless you can lay your finger on the exact line of the law that has been violated, don't arrest someone. Unless there's some exigent circumstance that endangers the public, refer the matter to the DA.
While I am probably debating mere semantics, the correct answer is to arrest, but don't book the person. The arrest was made when the cop stopped the person from leaving the scene. If the cop had probable cause to believe a law was broken, then placing him under arrest, cuffing him, and placing him in the patrol car is the correct action. Then the cop should be digging out his penal code and checking the exact wording of the law to see if he has all of the elements met. If he is missing an element, or cannot articulate it properly, then the suspect should be released while still at the scene. This is known as "unarresting" the person.

Then the officer can take his time and do more investigating and file charges if needed.

The reason you do not want to not arrest is the potential danger in checking the law while the suspect is still walking around. For some unknown reason, a lot of criminals do not like it when the police arrest them and may decide to fight or escape if they know the officer is looking up the law to make the arrest. So, you secure the suspect instead. That make it an arrest at that point. Just because you arrested him is no reason to book him though. You can figure out other ways.

You're right, I played a bit loosely with the word "arrest", since the driver is already "arrested" in a traffic stop. When he has five officers detaining him and searching his truck, he meets all the criteria of "under arrest", even without the steel bracelets.

I did mean that the officer shouldn't charge/book/process/whatever the accused until he knows what the law is, not what he thinks it is. What he said at the roadside ("See that right there? 'Law enforcement strength'? You can't have that.") isn't what the law actually says, and isn't what he charged him with. This was a case of arrest and book first, then find some way to make the law fit the charge.

chabouk

sjfcontrol wrote:
chabouk wrote:"Law enforcement strength" is a sales slogan, not a legal restriction.
That would have been my 'assumption' too. Apparently the cop, however, believed otherwise.

And he persisted in believing so, despite his sergeant's doubts. "It's in the Penal Code somewhere. I don't know where, but I can look it up."

Here's the thing about arresting someone on probable cause that a crime has been committed: unless you can lay your finger on the exact line of the law that has been violated, don't arrest someone. Unless there's some exigent circumstance that endangers the public, refer the matter to the DA.

I'm curious about what prompted the initial stop. There was nothing said about a traffic violation. Hauling a jetski on a utility trailer, even if it "looks suspicious", is not Reasonable Articulable Suspicion for a Terry stop or investigatory stop.

These things really chap my hide. Here was a good guy, breaking no laws, no criminal record, a small business owner, who thought he was doing the right thing by fully cooperating. He wound up in handcuffs and a jail cell, and is out over six grand, and will probably have second thoughts for the rest of his life about police being the "good guys".

The police actions in this case, and others like it, undermine what little public trust is left.

chabouk

"Law enforcement strength" is a sales slogan, not a legal restriction.

A big

to the officer and the DA.

What if the guy had been carrying a gun with high cap magazines marked "Law enforcement only" from back in the AWB days? Or had a box of Winchester Ranger ammo marked "for law enforcement use only"? Same thing: the markings are legally meaningless.

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