Friday, December 30, 2005

Bad idea from Texas exported to Britain: Arresting litterers and seat belt violators

Here's a terrible idea that Texas exported in 2001 to the rest of the country which now appears to have been exported again abroad, this time under the guise of fighting terrorism. On January 1, police in Britain will become empowered to arrest anyone for even the most minor violations, entirely at the officers' discretion ("Now you can be arrested for any offence," London Telegraph, 12-29):
Police are to be given sweeping powers to arrest people for every offence, including dropping litter, failure to wear a seat belt and other minor misdemeanours.

The measures, which come into force on Jan 1, are the biggest expansion in decades of police powers to deprive people of their liberty.

At present, officers can generally arrest people if they suspect them of committing an offence which carries at least five years in prison. They will now have the discretion to detain someone if they suspect any offence and think that an arrest is "necessary".

Here's the Texas connection: In January 2001, the US Supreme Court made some bad law in a Texas case called Atwater v. City of Lago Vista, ruling that it was constitutional to arrest anyone for any offense -- in that case a suburban Mom bringing her kid home from soccer practice, arrested for a seat belt violation. So long as that law stands, I've argued on Grits and at the Lege, it's laughable to claim that anyone "consents" voluntarily to searches by police officers. As I've described the problem previously:
In Texas, the US Supreme Court upheld our law in Atwater v. City of Lago Vista allowing arrests for "Class C" misdemeanors, which are misdemeanors for which the only punishment is a fine, not incarceration.

Months after the Supreme Court ruled such arrests were legal, the Texas Legislature passed a law banning them, but Texas Governor Rick Perry vetoed the bill, and has pledged to veto it again in the future as a sop to the state's largest police union.

After
Atwater, and thanks to Governor Perry, if a driver says "no" to a request for a so-called "consent search," the traffic offense that was the pretext for pulling the driver over can magically become an offense that necessitates the driver's arrest, after which they will be required by law to search the car as part of an "inventory search." After this scenario is explained to a driver, who would rationally refuse a search?
That Texas case became US law the same month President Bush was inaugurated, and in my own mind, unfairly perhaps, I've always associated Texas' exporting Governor Bush to the national stage with this particular authoritarian judicial ruling made national dicta just days before his ascension to the presidency. At the least, let's say I considered it an ill omen, one the British now share.

So to any English readers out there, let me fill you in on what you're in for, since we've been living with this situation in Texas for awhile now: Soon your local jails will be completely full of low-level arrestees at a huge cost to the taxpayers and with little benefit to public safety.

Welcome to the Texas criminal justice model. Enjoy.

7 comments:

Anonymous said...

I think your closing sentence should have read "Welcome to the new Texas Police State. Enjoy."

It just amazes me how ignorant people are, to allow their elected official's to rape their rights away. Any normal citizen would shoot a common thug for trying to steal something that belongs to them. Or at least call 911 and report a crime.

Texas doesn't seem to have any regards to the U.S. constitution. Then why should they? President Bush assumably refers to it as a G.D. piece of paper.

Texas seems to punish it's citizen's if they try and use their rights from the U.S. Constitution.

Examples:

If you get pulled over and refuse to take a field sobriety test, then you get your license revoked for what a year? So try to use the fifth Amendment, you get punished and lose your license.

If your pulled over and refuse to have your vehicle searched, you can be punished for exercising your Fourth Amendment, by getting arrested.

Bush has much bigger plans for the U.S.! Texas was only his "testing" grounds.

Tony Hatfield said...

Hi Scott,
Pity Blogger doen't Trackback, but I've posted about this on my blog.
Thanks for the reference.
It's too early to see whether our jails will be filled, but your points are all well made.
t
(that sad bastard who spent a day last year at the Capitol examining the workings of one of the offspring of the mother of Parliaments.But enjoyed Poke e Jo's much more.)

F'tang F'tang Notlob said...

At the same time, cops habitually, intentionally, and proudly violate the motor vehicle code and the penal code while in uniform and on duty.

The situation will only continue to get worse. There really is little hope.

It would take a revolutionary change to turn things around, and it would mean putting all bad cops -- of every level of bad -- behind bars or in the ground.

Anonymous said...

The statutes regarding "instantering" a defandant have existed for many years. I haven't seen proof they've been abused up to this point. There are also prohibitions regarding instantering a defandant for speeding alone and other offenses. The case you described, "Lago Vista" is indeed a horrible example and the officer should have been fired for either having a power complex or having no judgement whatsoever. My point is that these statutes exist as a function of order maintenance. If the officer doesn't have a tool to deal with offenders who choose not to completely identify or fail to identify themselves then we should just abandon traffic enforcement. As a seasoned law enforcement professional I can assure you that any case in which an officer asked for consent to search and was refused and then instantered the defandant in order to affect a "search incident to arrest" or an "inventory search" would be thrown out by any DA in the state. Regarding the question about field sobriety testing, the law indicates that operating a motor vehicle is a privelege and thus we operate those vehicles with our drivers licenses under "implied consent'. If you are not intoxicated why would you not submit to a breath test? I would much rather have my attorney submit those results at trial, if the case indeed went to trial. If you wish to invoke the fifth amendment protections provided by the Constitution then by all means do so. If we follow the argument proposed then in accidents regarding in serious injury or death would you propose we revoke the current laws allowing for a mandatory specimen? My point is that our system of justice has reached a point of requiring incredible proof in order to convict someone of minor offenses.

Gritsforbreakfast said...

anonymous 2 wrote: "If the officer doesn't have a tool to deal with offenders who choose not to completely identify or fail to identify themselves then we should just abandon traffic enforcement."

Frankly, I just don't get that. Traffic enforcement, to me, is primarily about traffic safety, not to give you guys an opportunity to indulge in fishing expeditions on unrelated stuff. If improving traffic safety isn't enough motivation for you, go investigate a crime or something, for heaven's sake.

Despite your "assurances," Texans are prosecuted all the time solely on the uncorroborated word of a police officer. If the officer's statements contradict the defendant -- 'she gave consent,' 'no I didn't' -- juries, sadly, and certainly prosecutors, almost universally believe the cop, no matter who is lying. That's why we needed the bill Gov. Perry vetoed requiring written or recorded consent for searches at traffic stops, to insert some accountability into that process for both sides -- that way, the defendant couldn't lie about it, either.

In any event, thanks for stopping by.

Anonymous said...

Anonymous wrote: The statutes regarding "instantering" a defandant have existed for many years. I haven't seen proof they've been abused up to this point."

Police abuse every power they get handed, why would you think they wouldn't abuse this power? At www.policecrimes.com they have thousand's of stories of police officers abusing their power. The majority of stories occurred in the last couple of years. Why would you think the cops wouldn't abuse their powers by arresting someone, because the officer didn't get his way? Too many cops have ego problems to begin with.

Anonymous wrote: "As a seasoned law enforcement professional I can assure you that any case in which an officer asked for consent to search and was refused and then instantered the defandant in order to affect a "search incident to arrest" or an "inventory search" would be thrown out by any DA in the state."

Tell me this scenario doesn't happen, you get pulled over for throwing a cigarette butt out your window. A ticket and a small fine for littering right? The officer ask to search your car, you say I don't think so, I have somewhere to be. You just basically threw the constitution is the cops face . Good cops will respect your rights, after all cops took an oath to up hold and protect the constitution didn't they? Did you? A bad cop will arrest you for the cigarette butt and search your car, just to prove to you that he thinks he still has power over you.


Anonymous wrote: Regarding the question about field sobriety testing, the law indicates that operating a motor vehicle is a privilege and thus we operate those vehicles with our drivers licenses under "implied consent'.

So a driver licence make us all safe drivers? It's just a "racket!"


Anonymous wrote: "If you are not intoxicated why would you not submit to a breath test? I would much rather have my attorney submit those results at trial, if the case indeed went to trial."

If I was intoxicated or not, since I live in a country that permits me not to incriminate myself at anytime I desire. I would much rather have my attorney tell the jury about my rights under the constitution. If a prosecutor doesn't have proof of a crime I've committed, for example he has no evidence of a test or video then that makes me guilty? NO! The prosecutor can't use the fact that I'm not incriminating myself as evidence to present to a jury or tell them that since I didn't dance for the cops in front of a camera or touch my nose, doesn't mean that I'm guilty. I would rather exercise my rights than not ever use them and lose those rights.

If a police officers ask you to do test in front of a police camera, say NO! If he wants a Breathalyzer from you, one of your rights you have is to say NO! These are your rights. You're not suggesting that these are just words on a piece of paper are you?

Don't make a cop or a prosecutors job any easier to prove that your guilty of something. Make the cops and prosecutor work for their paycheck. Remember you're innocent, until the prosecutor can prove that you are guilty. If he doesn't have evidence to prove your guilty, then he's SOL isn't he?

If you're not intoxicated why not submit to a test? Because that's your right as an American. If you're not carrying drugs in your vehicle, why not submit to a search? Because you have that right! How can I put it simpler, if the police officer didn't need your permission, why the hell is he asking you for permission? Just say NO!


Anonymous wrote: "I can assure you that any case in which an officer asked for consent to search and was refused and then instantered the defandant in order to affect a "search incident to arrest" or an "inventory search" would be thrown out by any DA in the state."

This is so B.S.! You don't know that police can and will lie? The officer always has that trump card he can use at anytime. Also are you saying that because someone is arrested for a minor traffic infraction and after their car is towed and searched, that a pound of drugs is located that they wouldn't be charged for that?

I would just tell the police officer that your brain can't process a lot at one time and if he could please stay on the subject of why you were pulled over and get that scenario out of the way, then you would be more than happy to talk about fishing, hunting or searching cars. The Supreme Court has ruled that a traffic stop is over with, after you signed you warning or ticket, any business after that is considered unrelated to the traffic stop and illegal! Once your traffic stop is complete the officer has no right to be conducting any other business with you, including asking you to search your car! After you signed you ticket, ask the officer if "your free to go."

Anonymous said...

I can assure ya'll that there are good cops, I've been pulled over by a few. Then there's the rest...insecure, power hungry, licensed mobsters. I have had a stalker for over 18 months in HAYS COUNTY, TX. He, rather IT has broken into my car(the deputy assures me the my dogs did it, sugared the gas tank (no more car to destroy), broken into my home,(sherriff refuses to do fingerprints, they might actually catch the guy) it continues to destroy my home and property daily, telephone harrassed me for 8 months calling 5-10 times daily(sherriff refuses to obtain the records)and now is sending lasivious emails. I am being further victimized by law enforement, demeaned, ...you need to see a doctor and get on some meds...It cut down half the trees on my property in the last 6 months while I attended the funerals of both my parents(they don't believe me...even though the mortage owner has verified this) and now...get this...the sherriff is threatening to charge me with abusing the 911 system. I had hoped to take this matter to the Attorney GEneral...but after reading this...that too would be fruitless. God help us...He knows that the bad out weighs the good, I figure they will get theirs...in the end. Heaven knows I hope so. If anyone knows a lawyer willing to fight this CORRUPTION, PLEASE FORWARD THE INFO. This guy is dangerous. The older generation tried to warn us all...when the Patriot Act came about. They are all outraged...they fought Wars, lost lives for the FREEDOM THE "PATRIOT ACT" REMOVED. Thanks