Wednesday, May 18, 2011

Police Misconduct? The department says this is procedure...what do you think?

A Clear Abuse of Power?
Story #3

While sitting in my car preparing to go into the gym, I was approached by 2 officers with their guns drawn.  I still do not know why I was detained/arrested.  I filed a complaint and the department told me that they were proud of the officers and everything was done according to procedure.  I know my rights and am familiar with police procedures; what they did to me was illegal.  They do not know I "may" have independent evidence corroborating my account of events.  The "investigative" sergeant started to change her story when I told her that she needs to tell the officers to be honest because I may have independent evidence.  Once I receive a written statement from the department, I will release all names and the department responsible. There is a lot more to this story so stay tuned, I will update this post Monday evening. 

The Law

Both the United States and California Constitution prohibit “unreasonable” searches and seizures of people, houses, and personal property.

A “search” occurs when a government officer infringes upon an expectation of privacy that society considers reasonable. (Jacobsen (1984) 466 U.S. 109, 113)
A “seizure” of a person occurs: (1) when a peace officer physically applies force or (2) when a person voluntarily submits to a peace officer’s authority. (Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal. 4th 137, 180.)
“The Fourth Amendment is not violated unless a legitimate expectation of privacy is infringed.” (Clark (1993) 5 Cal.4th 950, 979; Tyrell J. (1994) 8 68, 83.)
This infringement must be by the government or its agents…
”The Fourth Amendment addresses ‘misuse of power’, not the accidental effects of otherwise lawful government conduct.” (Brower (1989) 489 U.S. 593, 596, 597.)

When police deal with the public, the law will classify it as either a “consensual encounter,” a “detention,” or an “arrest.” 
Consensual Encounters
A “consensual encounter” is the least intrusive of these. A “consensual encounter” is a contact between an officer and an individual that is strictly voluntary.  The key element is that the person remains totally free to leave or not cooperate.  As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer.” (Royer (1983) 460 U.S. 491, 497-499, 506; Hughes (202) 27 Cal.4th 287, 327-328; Manuel G. (1997) 16 Cal.4th 805, 821; Terrell (1999) 69 Cal. App.4th 1246, 1253.)
On the other hand, if the officer starts exerting or asserting authority over the person—for example, by giving orders, demanding answers, displaying a weapon, using a harsh tone, telling him to stop doing X or to move to some other location, etc.—the contact will be viewed as a detention and it will be illegal unless supported by “reasonable suspicion.” (Manuel G. (1997) 16 Cal.4th 805, 821; Terrell (1999)  69 Cal.App.4th 1246, 1254; Miles (1987) 196 Cal. App. 3d 612, 616-617.)
A temporary “detention” or “stop” is an exertion of authority that is something less than a full-blown arrest but more substantial than a simple “contact” or “consensual encounter.”  A “detention” occurs whenever a reasonable—and innocent—person would believe he is not free to leave or otherwise disregard the police and go about his business. (Hodari D. (1991) 499 U.S. 621, 627-628; Bostic (1991) 501 U.S. 429, 434; Souza (1994) 9 Cal. 4th 224, 229.) Such a belief may result from physical restraint, unequivocal verbal commands, or words or conduct by you that clearly relate to the investigation of specific criminal acts. (Brueckner (1990)  223 Ca;.App.3d 1500, 1505.) For instance, patting down someone constitutes a detention (Frank V. (1991( 233 Cal.App.3d 1232, 1240).  “A person id not ‘seized’ within the meaning of the Fourth Amendment unless he or she is somehow physically restrained or voluntarily submits to a peace officer’s authority.” (Arangure (1991) 230 Cal.App.3d 1302, 1307; Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.4th 137, 180.)

The purpose of a detention is to resolve whether suspicious behavior is “innocent” or relates to a crime.  Therefore, “the possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal activity.”
Reasonable Suspicion:
For an investigative stop or detention to be valid, you must have “reasonable suspicion”  that: (1) criminal activity may be afoot and (2) the person you are about to detain is connected with that possible criminal activity.  (Wardlow (2009) 528 U.S. 119; Ornelas (1996)  517 U.S. 690 , 695-696; Sokolow (1989) 490 U.S. 1, 7-8; Bennett (1998) 17 Cal.4th 373, 386.)
To establish “reasonable suspicion,” both the quality and quanity of the information you need is considerably less than “probable cause” you need to arrest or search. (White (1990) 496 U.S. 325, 330; Bennett (1998) 17 Cal.4th 373, 387; Johnson (1991) 231 Cal.App.3d 1, 11.)
The case law that allows police officers to get away with violating citizen’s rights:
“Reasonable suspicion” is evaluated based on objective facts.  The officer’s subjective thinking, i.e., the purpose behind the search or seizure (detention or arrest), should have no bearing on a court’s determination of the legality of the officer’s action.  The officer’s “subjective intentions” are irrelevant in determining whether a detention of an arrest was justified.  (See Sullivan (2001) 532 U.S. 769, 772; Whren (1996) 517 U.S. 806, 813; see also Robinette (1996) 519 U.S. 33, 38; Scott (1978) 436 U.S. 128, 138; Letner (2010) 50 Cal.4th 99, 145.)   For example, if an officer rely on the wrong statute in detaining a suspect, his actions are not unlawful if the suspect’s actions were prohibited under a different statute. (McDonald (2006) 137 Cal.App.4th 521, 530; Justin K. (2002) 98 Cal.App.4th 695, 700.) If the suspect’s actions were not prohibited under any statute, then a detention will be unlawful.    I believe that this case law allows officers to be prejudice in performing their job.  I believe that the officers that have illegally detained me thought that I looked like a believable criminal and assumed that I had a criminal record.  If I did have a criminal record, they would claim to have witnessed me committing a crime when I had done nothing wrong.  The officers are feigning work and their illegal detention will be valid if they can find or make up something to support their illegal behaviors.  
A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity.  (Wardlow (2000) 528 U.S. 119, 123-124; Tony C. (1978) 21 Cal.3d 888; Raybourn (1990) 218 Cal.App.3d 308.) Rather, the officer must have specific facts justifying suspicion and he must be able to articulate them in court.  The court will then decide if these facts—based on the “totality of circumstances” including the officer’s training and experience—were enough to make the suspicion objectively reasonable. (Wright (1998) 206 Cal.App.3d 1107; Lloyd (1992) 4 Cal.App.4th 724, 733.)

An arrest occurs when you take a person into custody.  This requires either (1) that the officer physically restrain or at least touch the person or (2) that the person submits to the officer’s authority. (Pen. Code, § 835; Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.4th 137, 180.)
In Atwater, (2001) 532 U.S. 318, if a detention for a cite-and-release traffic violation is prolonged to the point that the seizure becomes a de facto arrest, it could extend to an “unintentional” de facto arrest. 

Additional Information:

Penal Code 841

The person making the arrest must inform the person to be arrested of the 
intention to arrest him, of the cause of the arrest,
and the authority to make it, except when the person making the
arrest has reasonable cause to believe that the person to be arrested
is actually engaged in the commission of or an attempt to commit an
offense, or the person to be arrested is pursued immediately after
its commission, or after an escape.
The person making the arrest must, on request of the person he is
arresting, inform the latter of the offense for which he is being

Reasonable Expectation of Privacy:

Both the United States and California Constitutions guarantee everyone the right to be free from 
unreasonable governmental intrusion. This right is personal to every citizen.  It is illegal for an officer to physically enter into an area where a person has a “reasonable expectation of privacy” in order to conduct a search or for that purpose of seizing something unless: (1) there is a warrant; or (2) exigent circumstances exists; or the officer has obtained a valid consent. (Stoner (1964) 376 U.S. 483, 486-490; Jacobs (1987) 43 Cal.3d 472, 477-478; Wilson (1997) 59 Cal.App.4th 1053, 1059; Conway (1996) 45 Cal.App.4th 163, 172.)

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