tag:blogger.com,1999:blog-8597101.post2823601808522104914..comments2024-03-15T05:45:01.402-05:00Comments on Grits for Breakfast: Time to implement written consent at traffic stop searchesGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger30125tag:blogger.com,1999:blog-8597101.post-23298619182994408382009-03-17T14:39:00.000-05:002009-03-17T14:39:00.000-05:00Actually I take back what I said because it appear...Actually I take back what I said because it appears that in VIRGINIA v. MOORE, the offense was classified as a misdemeanor that required the officer to issue a summons, not a civil infraction. So a civil infraction, being not a matter of criminal law, should not give officers the discretion to make an arrest. Perhaps certain very minor traffic offenses should be moved to this category.<BR/><BR/>As it was mentioned, it is possible for Texas to adopt a stronger search and seizure standard than the Federal government's constitution. If I'm wrong, correct me on any of these points.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-77543798449968492772009-03-17T11:40:00.000-05:002009-03-17T11:40:00.000-05:00Looks like Virginia v Moore answered my question. ...Looks like Virginia v Moore answered my question. I'm the anonymous guy above at 7:52 pm. It seems to me that even if a state doesn't authorize officers to be able to make an arrest, they still can for any minor offense. This basically destroys the 4th amendment right off the bat.<BR/><BR/>Now, perhaps if the state constitution specifically said that an officer can't make an arrest on probable cause of minor traffic offenses, things would be different because the Texas Constitution gives greater protection than the 4th amendment?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-87918648328909986692009-03-16T19:52:00.000-05:002009-03-16T19:52:00.000-05:00"He's known for the eliminate the death penalty bi..."He's known for the eliminate the death penalty bills, the 'lets stick it to the cops' bills, etc."<BR/><BR/>I don't see how this bill "sticks it to the cops". Grits rightfully pointed out the sky hasn't fallen in those areas where recorded consent is policy. So no, it's not the end of the world for cops. I understand your arguments that it is possible that unintended consequences could surface (somehow I really doubt that you are concerned about them). Perhaps there should be additional legislation tightening the discretion officers have in making an arrest if they are going to do it specifically to circumvent one's 4th amendment rights. We can hold Texas cops to higher standard if they are found to abuse this particular law. Also a legitimate question:<BR/><BR/>Do laws in other states that involve civil citations rather than fine-only misdemeanors allow officers the discretion to make an arrest?<BR/><BR/>Dutton does author a lot of legislation I agree with. I'm against the death penalty, so I obviously support that and I have no idea how that's anti cop (there are cops that oppose it ya know). Moreover, Dutton is concerned with the adverse consequences of our drug laws which are contributing Texas jail and prison populations unnecessarily. <BR/><BR/>There are things I disagree with him on. Anyways, at least he has the courage to propose legislation that needs to be out there so Texas can have a healthy debate.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-14821803646242100982009-03-15T13:23:00.000-05:002009-03-15T13:23:00.000-05:00Laws are supposed to protect our freedoms, not vio...Laws are supposed to protect our freedoms, not violate them. Righteo, pull out the constitution. <BR/><BR/>The founding fathers feared any group, government or individual gaining too much power. The police routinely run rough shod over peoples rights on a routine basis these days. Many have a hostile attitude toward the citizenry they are supposed to be protecting and serving. It is prevelent in smaller towns. I have been bullied and harrassed so many times that it's unreal. I love their standard question,"Mam, do you have anything in the vehicle that I need to know about. "no sir", "okay, you must be hiding something if you won't let me search". I never waiver, but I am not rude. I just refuse to consent to anything. hey can tell me that they are calling the dogs, backup and whoever else. I do not give in. I've been told that driving on a gravel rd was probable cause, you name it. I refuse politely. It is sad when law enforcement is hostile to te public. Anything that will stop them from stomping on people rights I support. They show no regards for the rights of others. Rights only apply to them and their families and that is not acceptable. Those guys need to be out taking care of real criminals, not the elderly, women and children.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-69442865396661701662009-03-13T13:05:00.000-05:002009-03-13T13:05:00.000-05:00LOL, the good Rep Dutton does that every session, ...LOL, the good Rep Dutton does that every session, along with his cheering section.<BR/><BR/>He's known for the eliminate the death penalty bills, the 'lets stick it to the cops' bills, etc.TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-12040575280178966352009-03-13T09:11:00.000-05:002009-03-13T09:11:00.000-05:00Thanks for the response Blues. I was surprised wh...Thanks for the response Blues. I was surprised when I checked recent rulings by the Supreme Court on pretext stops and arrests.<BR/><BR/>Mr. Dutton seems to be wasting his time based on these rulings.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-11868158768326251362009-03-13T07:00:00.000-05:002009-03-13T07:00:00.000-05:00I failed to mention that Scott was correct on the ...I failed to mention that Scott was correct on the baseline/minimum standard area.<BR/><BR/>The state can and does exceed Federal constitutional standards. Art. 38.23 is a good example where Texas law far exceeds the requirements of the U.S. Constitution.TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-992273744970815112009-03-13T06:56:00.000-05:002009-03-13T06:56:00.000-05:00Anon 8:38,Case law does contradict Grits position ...Anon 8:38,<BR/><BR/>Case law does contradict Grits position on the constitutionally of this. Both the Federal and Texas Courts use an 'objective' standard to evaluate these cases, not a 'subjective' one.<BR/><BR/>In other words, so long as the officer has a legal basis for his action, like the statutory authority to arrest on a traffic offense, then the courts will uphold the police action.<BR/><BR/>The same issue has come up in the past for so-called 'pretext stops' where police would stop for a minor traffic violation when they really wanted to search the vehicle.<BR/><BR/>The libs and the defense bar screamed that this was unconstitutional.<BR/><BR/>Guess what?<BR/><BR/>It's not unconstitutional. See <I>Crittenden</I>, see also <I>Walter v. State</I>, 28 S.W.3d 538 (Tex. Crim. App. 2000) which stated:<BR/><BR/>"The Court made clear that the traffic violation itself constituted an objectively reasonable basis for the stop, <B>so any ulterior motive on the part of the officers was irrelevant</B>." <I>Walter</I> at 543.<BR/><BR/>Grits is a good guy, but his training is in journalism, not law. He's just hung around the ACLU guys way too much...TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-89734447248087219292009-03-12T20:38:00.000-05:002009-03-12T20:38:00.000-05:003/05/2009 03:24:00 PM Gritsforbreakfast said... "C...3/05/2009 03:24:00 PM<BR/><BR/><BR/> Gritsforbreakfast said... <BR/>"Can the state create a law that supercedes what the Supreme Court has already ruled on?"<BR/><BR/>In this case, yes.<BR/><BR/>The Constitution establishes a floor, which is what SCOTUS rules on, 3:24. The states can and often do afford their citizens greater protection than that minimalist baseline.<BR/><BR/>3/05/2009 03:45:00 PM<BR/><BR/>What about it Blues Man? Your case cites seem to contradict Scott's response to this question.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-85193463748684516042009-03-12T17:13:00.000-05:002009-03-12T17:13:00.000-05:00Todd,I hate to disagree, but Grits ain't going to ...Todd,<BR/><BR/>I hate to disagree, but Grits ain't going to ban me - if so, he would have done so a long time ago.<BR/><BR/>He's actually an OK guy, just misguided (jk Scott)...<BR/><BR/><BR/>Grits, <BR/><BR/>Again, exactly how is it unconstitutional? You may want to look at how SCOTUS looks at the issue. For example, in <I>Virginia v. Moore</I>, ___ U.S. ___, 128 S.Ct. 1598 (2008), officers arrested Moore for a suspended license where state law required that a citation be issued. During the search of the car incident to arrest, they found crack cocaine. The Virginia Supremes found that the arrest and subsequent search violated the Fourth Amendment since the arrest was not authorized under state law.<BR/><BR/>SCOTUS reversed (9-0), stating:<BR/><BR/>"In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." <I>Moore</I>, at 1604.<BR/><BR/>Note that this expands <I>Atwater</I>. In <I>Atwater</I>, the state statute authorized the arrest for traffic violations. In <I>Moore</I>, the state statute did not authorize an arrest, but SCOTUS unanimously held that the search was still reasonable. Do you really think that they will declare an otherwise legal arrest to be unconstitutional?<BR/><BR/>Remember, the Texas courts have already allowed the use of pretext stops in <I>Crittenden v. State</I>, 899 S.W.2d 668 (Tex. Crim. App. 1995), stating:<BR/><BR/>"We therefore hold, instead, that an objectively valid traffic stop is not unlawful under Article I, ยง 9, just because the detaining officer had some ulterior motive for making it." at 674.<BR/><BR/>The courts don't look to motivation, they look to objective reasons, and so long as the officer can show that he had valid grounds for arrest, it will be constitutional.<BR/><BR/>The following could be on video and be admissible:<BR/><BR/>Officer - can I search your car?<BR/>Driver - no.<BR/>Officer - you are under arrest for expired registration. I am now going to search your car incident to arrest and inventory the contents.<BR/>Driver - you can't do that!<BR/><BR/>...later...<BR/><BR/>Def. Attorny - your honor, he can't do that.<BR/>Judge - yes he can, he had a valid reason for arrest. motion to suppress denied.<BR/><BR/>Sorry Grits, but case law is solidly on the side that supports the arrest and search - what the officer's motivation is doesn't matter, so long as he has an arrestable offense.<BR/><BR/>If you have any cases that show otherwise, I would be interested in seeing them... ask Doran to help...TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-86224263852279539662009-03-12T15:46:00.000-05:002009-03-12T15:46:00.000-05:00Bluesy, they have a right to arrest for a Class C,...Bluesy, they have a right to arrest for a Class C, but if video evidence showed it was done coercively as retribution for refusing a search, you know full well it wouldn't be constitutional.<BR/><BR/>What you want, clearly, is for their to be no evidence that could ever prove such a thing, and for officers to be able to bully drivers into searches without informing them of their right to refuse.<BR/><BR/>Todd, I'm not surprised you love Bluesman. You and he should get a room. Lucille is right that if Bluesy were going to be "banned" it would have happened long before now.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-75179627578946540032009-03-12T15:22:00.000-05:002009-03-12T15:22:00.000-05:00More arrests for nonsense reasons may work in favo...More arrests for nonsense reasons may work in favor of the reformers - it is one thing to "consent" to a search on the spot. It is another for innocent (and face it, being guilty of some Class C infraction is basically the same as being innocent) citizens to get arrested, go to jail, and then have their stuff searched.<BR/><BR/>I would hope that tolerance for police would swiftly decline at that point and spark greater reforms than getting a signature before a search.<BR/><BR/>-- InvidAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-82125494382594521182009-03-12T12:57:00.000-05:002009-03-12T12:57:00.000-05:00I predict you will be banned soon.Despite the fact...<I>I predict you will be banned soon.</I><BR/><BR/>Despite the fact that he's been commenting here for nearly a year, you predict he'll be banned. Right. Has he ever even had a comment deleted?<BR/><BR/>Some people like to imagine themselves martyrs, all available evidence to the contrary.Lucillehttps://www.blogger.com/profile/03225011724349777456noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-85287471235819353982009-03-12T12:20:00.000-05:002009-03-12T12:20:00.000-05:00I think I love TxBluesMan. You are right on with ...I think I love TxBluesMan. You are right on with your comments. I don't understand why people think this written consent stuff is going to save everyone. It is just going to make cops follow a different LEGAL route to get into the cars they suspect are carrying contraband.<BR/><BR/>The folks on this site aren't going to like you quoting actual case law in support of the police. I predict you will be banned soon.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-23937031882129514842009-03-12T12:12:00.000-05:002009-03-12T12:12:00.000-05:00Grits,How is it a constitutional violation? Offic...Grits,<BR/><BR/>How is it a constitutional violation? Officers have the right to either cite or arrest. See <I>Atwater v. City of Lago Vista</I>, 532 U.S. 318 (2001).<BR/><BR/>It doesn't matter if the grounds for arrest is a pretext to search the car, so long as the officer has objectively good grounds for the search, like an arrest.<BR/><BR/>There is nothing to prevent an officer from asking for consent, and if refused, making a legal arrest and searching the car on that basis.<BR/><BR/>There is nothing unconstitutional about it. You may not care for it, but it is completely legal and constitutional. You may want to look at p. 6 of the book, Defendant's Rights, by Hamid R. Kusha (2004) which states:<BR/><BR/>"For example, in some jurisdictions police officers are allowed to make full arrests for minor traffic violations so that officers can conduct a comprehensive search of vehicles without need for a probable cause..."<BR/><BR/>Like I said earlier, beware of the law of unintended consequences...<BR/><BR/>All Rep. Dutton's bill will do is to increase the number of Class C arrests...TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-3048103059494965012009-03-12T07:01:00.000-05:002009-03-12T07:01:00.000-05:00That would be a constitutional violation, Bluesy. ...That would be a constitutional violation, Bluesy. Dutton's point is that if it's recorded, that type of misconduct would be captured, while if consent is given willingly there would be no he-said she-said dispute in court.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-6710679767387122652009-03-11T14:54:00.000-05:002009-03-11T14:54:00.000-05:00You miss the point.The larger departments may well...You miss the point.<BR/><BR/>The larger departments may well have such a policy, but the smaller departments almost certainly won't.<BR/><BR/>And it is not at the "whim" of the cop, it is "officer discretion" - and they would decide to arrest...TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-30917403046256171752009-03-11T13:01:00.000-05:002009-03-11T13:01:00.000-05:00I remember the cop organizations fought the on-car...I remember the cop organizations fought the on-car cameras. I don't think that anyone can argue that the cameras have streamlined DWI cases in addition to protecting the rights of citizens. Though suppression hearing still have some element of he said/he said, the camera doesn't (often) lie. It is true that occasionally, lying cops are contradicted by their own camera, but more often than not, the camera saves everybody a trial as it starkly demonstrates the intoxication (or lack thereof) of the accused (except for those odd cases where the camera film is "lost"). As for the claim that there would be more arrests for Class C offenses were consent required to be filmed, my understanding is that such an arrest must be pursuant to department policy, not just on the whim of the cop on the street. I doubt that any department has a per se policy of arresting class C misdemeanants.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-90865173439416648022009-03-11T10:13:00.000-05:002009-03-11T10:13:00.000-05:00God, TxBluesMan has so many fallacies in his state...God, TxBluesMan has so many fallacies in his statements my head is spinning.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-31949155458250232822009-03-11T09:55:00.000-05:002009-03-11T09:55:00.000-05:00I've taught my kiddos to always refuse consent but...I've taught my kiddos to always refuse consent but cops really do try to push you around when you don't understand the constitution. Texas especially has a problem with bully cops. <A HREF="http://www.chicagotribune.com/news/nationworld/chi-texas-profiling_wittmar10,0,6051682.story" REL="nofollow">(See Tenaha as the most recent example.)</A> While I am always worried about the unintended consequences of a law, I can't think anything bad at all would stem from restraining police.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-15569449962738140242009-03-11T08:59:00.001-05:002009-03-11T08:59:00.001-05:00Rev. Kiker here:Grits, you remember well, I'm sure...Rev. Kiker here:<BR/><BR/>Grits, you remember well, I'm sure, how hard we fought to require corroboration for police testimony, and how hard the police unions fought against it. We did get requirement for corroboration for "snitch" testimony, but failed for police officers. "You don't trust us," they whined. Trust, but verify! I think it was the Gipper who made that phrase famous. That's at least one good thing in his legacy.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-11030332906282352042009-03-11T08:59:00.000-05:002009-03-11T08:59:00.000-05:00Grits,Just a couple of comments.First, beware of t...Grits,<BR/><BR/>Just a couple of comments.<BR/><BR/>First, beware of the law of unintended consequences. Let's assume that HB 917 passes and the the Gov doesn't veto it, like he did last time. OK, no consent searches without written, audio, or video documentation. What will probably happen is that you'll see more arrests for Class C misdemeanors, followed by a search incident to arrest and an inventory of the vehicle. Why would the officer ask for consent if, based on what you indicate, the chances of consent go down by two-thirds?<BR/><BR/>Granted, the larger cities won't do that - they have too much to do already - but the smaller agencies will. Police departments are already impounding cars for no insurance. I think that you will see the same thing for no license, registration, inspection, etc. As to filling the jails? Simple solution - the officer arrests them, searches and impounds the car, books the driver into jail, and then has the jail release the arrestee on a PR bond (the equivalent of a ticket).<BR/><BR/>Second, other than funding cameras for agencies, what did the racial profiling bill really accomplish? According to data from the Texas Criminal Justice Coalition, now 18% of the DFW area agencies don't even consent search blacks, although they still do so for whites. Congratulations Grits, now those agencies only discriminate against Anglos... In 43% of those agencies, Anglos are searched as often or more often than blacks. Several agencies no longer do consent searches due to political correctness - meaning that another tool for law enforcement was lost.<BR/><BR/>Fortunately it won't matter. If the bill passes, the Gov will likely veto it, again...TxBluesManhttps://www.blogger.com/profile/15008395777633969757noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-49461599317391898052009-03-11T08:58:00.000-05:002009-03-11T08:58:00.000-05:00"He didn't like the idea that a police officer mus..."He didn't like the idea that a police officer must inform the driver they had the right to refuse consent. But what's exactly wrong with informing drivers of their constitutional rights?"<BR/><BR/>Because although LEOs all swear to uphold the Constitution of the United States, most, if not all of them, have no respect for it, don't understand it and consider it to be a hinderance to their job.<BR/><BR/>I can't begin to count the number of times I have invoked my Consitutional rights to cop, only to be asked "what are you, some kind of lawyer?" always with disdain. I always reply that unlike them, I have actually read and comprehend the US Constitution.<BR/><BR/>Cops are, for the most part, bullies, liars and cowards, using the color of law to make their way in this world. I know of what I speak, my father was one.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-9122558833101518812009-03-11T06:10:00.000-05:002009-03-11T06:10:00.000-05:00Bluesy, this wouldn't "handicap" cops - it just do...Bluesy, this wouldn't "handicap" cops - it just documents their actions.<BR/><BR/>Really, this bunker mentality of yours (and CLEAT, TMPA) is silly and counterproductive. The fact is this bill would HELP cops because it protects them from later being accused of constitutional violations.<BR/><BR/>I remember helping pass Texas' racial profiling law in 2001 that put $18 million worth of cameras in police cars. These same groups fought it tooth and nail. "You don't trust us!" "You're saying we have evil intent!" "The sky is falling, the sky is falling!" Yet in reality those cameras protect good cops much more often than they accuse bad ones.<BR/><BR/>The same thing would happen here if the police unions would pull their head out of their collective ass and think about their actual self interest instead of just reflexively opposing everything reform groups support.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-14411279344349491782009-03-10T23:25:00.000-05:002009-03-10T23:25:00.000-05:00The Constitution also "handicaps" police. If that'...The Constitution also "handicaps" police. If that's always a bad thing, then by all means let's do something about that pesky Constitution. Apparently, some believe that citizens exist to provide opportunities for law enforcement actions.Anonymousnoreply@blogger.com