Terry Stop - is explanation of actions required?
bat
=============
http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072500050K107-14
Illinois Compiled Statutes
725 ILCS 5/107-14) (from Ch. 38, par. 107-14)
Sec. 107-14. Temporary questioning without arrest.
A peace officer, after having identified himself as a peace officer, may
stop any person in a public place for a reasonable period of time when the
officer reasonably infers from the circumstances that the person is
committing, is about to commit or has committed an offense as defined in
Section 102--15 of this Code, and may demand the name and address of the
person and an explanation of his actions. Such detention and temporary
questioning will be conducted in the vicinity of where the person was
stopped.
(Source: Laws 1968, p. 218.)
=============
Does officer's right to ask these questions mean that the stopped person
must answer them, and if he refuses, this is an offense by itself? including
eventually stopping to give more detailed explanations of the actions,
should the officer continue requesting them.
Regards
onef...@aol.com
> Hello,
>
> =============http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072500050K1...
First, this (Sec. 107-14. Temporary questioning without arrest) is
undoubedly a Criminal *Procedure* statute, distinguished from Criminal
*Offense* statutes.
The former's command is directed to "peace officers" and informs and
directs their actions with respect to contacts with the citizenry.
That is, this statute (based, as your header indicates on Terry v
Ohio) "prescribes" the specific action "peace officers" are to
undertake when "detaining" any person. There is no "command of law"
which a person accosted by a "peace officer" must obey and no
"penalty" for disobeying a "procedural" directive not addressed to any
"person".
To put it simply, this Procedural Statute tells the "peace officer"
that the is "authorized", given appropriate circumstances,
to ...demand the name and address of the person and an explanation of
his actions..."
"> Does officer's right to ask these questions mean that the stopped
person must answer them, and if he refuses, this is an offense by
itself?"
Absolutely not. Again, the Statute is "Procedural", not "Criminal",
only "commands" the actions of police when contacting a person,
carries _no_ command with respect to a "person" and likewise _no_
penalty when an otherwise lawfully stopped person, per Brown v Texas,
Kolender v Lawson, and a body of other case law precedent, refuses to
answer.
Mike Jacobs
[citing an Illinois statute codifying Terry stops]
> Does officer's right to ask these questions mean that the stopped person
> must answer them, and if he refuses, this is an offense by itself?
No, it doesn't say that. The statute you cite simply codifies the
holding of Terry v. Ohio, 392 US 1 (1968), in which SCOTUS authorized
such stops as not being violative of citizens' 4th Amendment rights
(to be secure against "unreasonable searches and seizures") because
such a stop did not rise to the level of a "seizure" if the person
stopped was free to leave. This section doesn't say anything about
what the PERSON STOPPED has to do, or can do, in that situation; it
simply says, as far as any possible allegations of police misconduct
are concerned, "there's no harm in asking" so long as all the
requirements of the statute are met.
Many (if not all) states do require a person who has been legally
stopped by the police (whether in the course of a Terry stop, or for
any other reason) to identify themselves (provide their name) or else
be subject to be arrested and taken into custody, at least until their
identity can be determined, based solely on the suspicious behavior
that initiated the Terry stop plus the refusal to identify; and many
(if not all) states also have statutes that make it a separate crime
to lie to a police officer in the course of an investigation (e.g. by
providing a false name, or false answers to any other question) but no
law could constitutionally compel any person to answer additional
questions. That's one of the fundamental 5th Amendment rights
recited in the famous "Miranda Warnings" which I trust OP has surely
heard about in one way or another: "You have the right to remain
silent."
> including
> eventually stopping to give more detailed explanations of the actions,
> should the officer continue requesting them.
If you are stopped and questioned, you have the right to stop
answering questions at ANY time (although, as noted, you do need to,
sooner or later, identify yourself unless you have a valid 5th
amendment self-incrimination defense against doing even that). But
the cops don't have to read you your "Miranda rights" until AFTER they
arrest you - and questioning during a Terry stop does not count as an
"arrest," so, many people in such a situation may not be aware that
they have such a right.
Recommended reading for everybody on your shopping list, is the "ACLU
bust card" which can be found at many places on the web, by Googling
that phrase or at:
http://www.aclu.org/FilesPDFs/dwb%20bust%20card7_04.pdf
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
Steve Bartman
>Does officer's right to ask these questions mean that the stopped person
>must answer them, and if he refuses, this is an offense by itself? including
>eventually stopping to give more detailed explanations of the actions,
>should the officer continue requesting them.
I don't believe the statute you posted is a "Terry stop" issue. That
procedure is a stop&frisk, for weapons, when the officer has a
reasonable suspicion that a crime has been, or is about to be,
committed, whereby he may stop and frisk for weapons to protect
himself. What actions he takes after that is up to the facts and the
degree of his reasonable suspicion, just as it would be in a case
where he didn't perform a Terry stop.
You never have a duty to answer questions from a police officer,
except, as I recall from a case in the 1990s, to identify yourself.
The officer always has the right to arrest you, however, with
reasonable cause. At that point you have Miranda rights, etc.
I am not a lawyer, and this is not legal advice.
Steve
Barry Gold
[Concerning Illinois law and "Terry stops", in which a peace officer
stops a person and asks their name & address and an explanation of
their actions.]
>
>Does officer's right to ask these questions mean that the stopped person
>must answer them, and if he refuses, this is an offense by itself? including
>eventually stopping to give more detailed explanations of the actions,
>should the officer continue requesting them.
AFAIK it is not an offense to refuse to answer questions put by an
LEO. "You have the right to remain silent". So your refusal to
answer cannot be the basis for an offense.
*However* if the circumstances so indicate, you _can_ be arrested.
Basically, in a situation like that the LEO can arrest you and take
you to the station where they can obtain some means of identifying
you, e.g., mug shots and fingerprints. That way, if they later
discover that a crime _was_ committed, they have some connection
between you and your location near the crime scene.
If you are subjected to a "Terry stop", probably your best course of
action is to give your correct name and address, and to reply to any
further questions with only four words: "I want a lawyer."
This is true even if (especially if) you are innocent of any (recent)
wrongdoing. One friend was out walking for exercise, stopped by a cop
who told him he looked like the description given by the victim of a
recent robbery. The cop then presented him to the victim, who identified
him as the perp.(*) He had to go through a lot of trouble and expense to
prove his innocence.
It would probably have been to his advantage to refuse to cooperate:
give his name and address and refuse the cop's request to go and
present himself to the victim.
(*) I would hope that those in this group are aware of the problems
inherent in a one-person "lineup" like this one. THe victim has
usually suffered a traumatic experience and has a bunch of confused
impressions, which are not yet settled down into a coherent memory.
Presenting a single suspect and asking "is this the guy" is likely to
imprint the suspect's face _over_ whatever impressions the victim has,
so that he will then be "sure" that this guy is the one who did it --
even in the face of overwhelming evidence that "this guy" could not
have done it because he was somewhere else.
--
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Cy Pres
>Does officer's right to ask these questions mean that the stopped person
>must answer them, and if he refuses, this is an offense by itself?
No. One can never be compelled to testify against oneself, and being
forced to do so would be a violation of the Fifth Amendment.
One can be required to identify oneself, though, and if there is a
state law which also enforces this requirement, it could conceivably
subject one to some kind of prosecution.
What is more likely, though, is that if one's refusal to explain one's
actions leaves the police officer with probable cause to arrest, the
officer may then proceed to an arrest.
>including
>eventually stopping to give more detailed explanations of the actions,
>should the officer continue requesting them.
The officer is permitted to ask these questions. The detainee is not
required to answer anything beyond, perhaps, giving a name, where
state law so provides.
Stan Brown
<sbar...@visi.com>:
> You never have a duty to answer questions from a police officer,
> except, as I recall from a case in the 1990s, to identify yourself.
> The officer always has the right to arrest you, however, with
> reasonable cause. At that point you have Miranda rights, etc.
But as a practical matter, and despite the above legalities, a
significant number of police officers will decide that your refusal
to answer questions *is* probable cause.
There are times when standing on your rights may lead to problems
that would be avoided by not standing on them, and yet not support
any important principle. The problem is to know when.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
David Lesher
>You never have a duty to answer questions from a police officer,
>except, as I recall from a case in the 1990s, to identify yourself.
Do you mean:
Larry D. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al.
?
--
A host is a host from coast to coast.................wb8foz@nrk.com
& no one will talk to a host that's close........[v].(301) 56-LINUX
Unless the host (that isn't close).........................pob 1433
is busy, hung or dead....................................20915-1433
Mike Jacobs
> I don't believe the statute you posted is a "Terry stop" issue. That
> procedure is a stop&frisk, for weapons, when the officer has a
> reasonable suspicion that a crime has been, or is about to be,
> committed, whereby he may stop and frisk for weapons to protect
> himself.
How do you read a "stop & frisk" element into the Illinois statutory
section cited? If the preliminary requirements are met, it simply
says the officer "may demand the name and address of the person and an
explanation of his actions." Nothing in the statute authorizes a
frisk.
Or, were you saying that you think a "Terry stop" is synonymous with
"stop & frisk" while this statute talks about something else? I have
typically heard the "Terry stop" rubric applied to _any_ non-custodial
street interrogation, based on a reasonable suspicion - which would
include the situation the Illinois statute is addressing.
Even though it is not specifically authorized by this statute, an
officer conducting a stop under the Illinois statute would not commit
a Constitutional violation if he were indeed to frisk the person he
was questioning _IF_ in addition to the statutory grounds justifying
the initial stop, he also had a reasonably articulable suspicion that
the person might be carrying weapons, as set forth in Terry v. Ohio,
and the pre-arrest "frisk" in such a case would be legal only if
limited in scope to a search for hard objects which might be weapons,
not for other contraband such as soft packets of drugs. Perhaps
that's what Steve was saying, and if so, he is right that the Illinois
statute does not constitute a blanket authorization to "frisk" persons
who were stopped on the street for questioning; such frisks (if later
challenged) still need to be evaluated in terms of the Constitution,
as elaborated in the Terry case and its progeny.
Matt Carter
>
> [...] Terry v. Ohio, 392 US 1 (1968), in which SCOTUS authorized
> such stops as not being violative of citizens' 4th Amendment rights
> if the person stopped was free to leave.
Mike, I agree with the substance of everything you've said in your
post. However, there is one point, quoted above, where I must
nitpick:
When you say "such stops", I presume you are referring to stops like
the one in Terry v. Ohio and the ones described by the Illinois
statute that OP quoted.
If so, then your "if the person stopped was free to leave" clause is
meaningless, since the person is NOT (immediately) free to leave in
such stops.
The Warren Court, in Terry v. Ohio, unanimously agreed that Detective
McFadden's stop of Terry *WAS* a seizure, and, as such, was subject to
4th Amendment protections. The Court's majority authorized the stop
and frisk of Terry as not violating the 4th Amendment because the stop
was reasonable (based on reasonable suspicion that crime was afoot)
and the frisk was reasonable (for officer safety, due to the
reasonable suspicion that the subject was armed).
So, it is inaccurate to say that "SCOTUS authorized such stops [...]
because such a stop did not rise to the level of a 'seizure' if the
person stopped was free to leave".
The Court did decide that "whenever a police officer accosts an
individual and restrains his freedom to walk away, he has 'seized'
that person." So, inversely, one might deduce your assertion, that "a
stop [does] not rise to the level of a 'seizure' if the person stopped
was free to leave." But, that wasn't the thrust of Terry v. Ohio, as
you seemed to indicate.
Incidentally, it's hard for me to imagine any interaction between an
individual and the police being considered a "stop" if the individual
was (always) free to leave. Certainly, a police officer could walk
alongside a subject and strike up a conversation, and that wouldn't be
a seizure. Or, a police officer could ask a person whether he'd be
willing to stop and talk, and if the person voluntarily stopped, it
wouldn't be a seizure. But, if a police officer tells a person to
stop, then asks the person whether s/he would be willing to answer a
few questions, and the person says "ok" and stands there answering
questions, then a seizure DID occur, and 4th Amendment protections
come into play: If there was no reasonable suspicion for the police
officer's initial show of authority ordering the person to stop, any
criminal admissions the person makes should be suppressed.
Since the portion of your post that I quoted above seems to deal with
what the law considers a "seizure", I should note that the most
authoritative and specific ruling on that topic comes from the 1991
case of California v. Hodari, in which SCOTUS said:
"To constitute a seizure of the person [...], there must be either the
application of physical force, however slight, or, where that is
absent, submission to an officer's 'show of authority' to restrain the
subject's liberty."
So, when an officer yells "Stop!" and the subject runs the other way,
there was no seizure.
But, when an officer grabs a subject and the subject pulls free and
runs away, there was a seizure.
Likewise, when an officer engages his cruiser's emergency lights
behind a vehicle and that vehicle pulls over, there was a seizure.
Steve Bartman
<the_sta...@fastmail.fm> wrote:
>Mon, 25 May 2009 11:10:43 -0500 from Steve Bartman
><sbar...@visi.com>:
>> You never have a duty to answer questions from a police officer,
>> except, as I recall from a case in the 1990s, to identify yourself.
>> The officer always has the right to arrest you, however, with
>> reasonable cause. At that point you have Miranda rights, etc.
>
>But as a practical matter, and despite the above legalities, a
>significant number of police officers will decide that your refusal
>to answer questions *is* probable cause.
Maybe. Read the decision in the case cited. At least some state
statutes explicitly prevent refusal to answer an officer's questions
to be used to form a reasonable suspicion of a crime.
But yes, that's theory, and the officer may arrest you. It'll be
sorted out later when the DA refuses to prosecute, and you might have
civil remedies against the officer or his employer, but that's later
and the bother is right now. I personally have never, in the very rare
cases it's been required, had a problem with answering a police
officer's questions. But I'm a white adult male who doesn't break the
law.
Steve
Steve Bartman
<wb8...@panix.com> wrote:
>Steve Bartman <sbar...@visi.com> writes:
>
>
>>You never have a duty to answer questions from a police officer,
>>except, as I recall from a case in the 1990s, to identify yourself.
>
>Do you mean:
>
>Larry D. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al.
I'd bet that's it. I have a memory of watching the analysis on "The
News Hour" and I think it was in Nevada. The guy was a sort of
hyper-libertarian who didn't think it was government's right to order
him to carry ID on his person.
(Which is what my father, born in the early 1930s, sometimes rants
about too. How in the America of his youth one wasn't forced to haul
out any sort of paper to prove their name or address for months, or
even years, on end.)
Well, I just found the case above, skimmed it, and it's the one I
recalled. The TV analysis focused on the FIfth Amendment portion of
the ruling as I recall.
I also see reading it that my perception that a Terry stop involves,
or must involve, a weapons frisk, is unfounded. Mike was correct
there.
Steve
Steve Bartman
<mjaco...@gmail.com> wrote:
>On May 25, 12:10�pm, Steve Bartman <sbart...@visi.com> wrote:
>> I don't believe the statute you posted is a "Terry stop" issue. That
>> procedure is a stop&frisk, for weapons, when the officer has a
>> reasonable suspicion that a crime has been, or is about to be,
>> committed, whereby he may stop and frisk for weapons to protect
>> himself.
>
>How do you read a "stop & frisk" element into the Illinois statutory
>section cited?
As you say below, I didn't. I meant that it sounded as if the OP had
mixed up the concept of the Terry stop (from the USSC decision) with
the state statute's provisions.
>Or, were you saying that you think a "Terry stop" is synonymous with
>"stop & frisk" while this statute talks about something else?
Yes. I was taught in my one and only crim. law course (taught by a
local public defender) that a Terry stop involves a brief frisk for
weapons--without the friskee being rendered in custody--for the
purpose of safety for the officer who has a reasonable suspicion that
a crime has been committed, or will be soon in the vicinity. After the
frisk I'd think most officers would attempt some questions (unless
they got jollies from frisking guys on the corner), but the
questionees (maybe not yet true suspects) could decline to answer and
move away unless placed under arrest.
If that is all incorrect, or incomplete, well, I come here to learn.
I have
>typically heard the "Terry stop" rubric applied to _any_ non-custodial
>street interrogation, based on a reasonable suspicion - which would
>include the situation the Illinois statute is addressing.
If so, perhaps my teacher was just giving us the worst case--weapons
present. I'd thought (I haven't read the decision) that the whole
revolutionary impact of the Terry holding was that a non-permissioned
(by the searchee) search could be constitutional without an arrest or
a warrant or the plain sight doctrine. If a "Terry stop" means just
ambling up to Joe On The Corner and asking him some questions--when
he's free to clam up and walk away (as he was anyway, USSC decision or
no), why the need for the Court to make a landmark ruling?
>Even though it is not specifically authorized by this statute, an
>officer conducting a stop under the Illinois statute would not commit
>a Constitutional violation if he were indeed to frisk the person he
>was questioning _IF_ in addition to the statutory grounds justifying
>the initial stop, he also had a reasonably articulable suspicion that
>the person might be carrying weapons, as set forth in Terry v. Ohio,
>and the pre-arrest "frisk" in such a case would be legal only if
>limited in scope to a search for hard objects which might be weapons,
>not for other contraband such as soft packets of drugs. Perhaps
>that's what Steve was saying, and if so, he is right that the Illinois
>statute does not constitute a blanket authorization to "frisk" persons
>who were stopped on the street for questioning; such frisks (if later
>challenged) still need to be evaluated in terms of the Constitution,
>as elaborated in the Terry case and its progeny.
That seems to make sense. And so, to the OP, the Illinois statute
doesn't seem to be related to the Terry stop doctrine, but runs
parallel, or maybe subsequent in the encounter sequence, to it.
As an aside, does anyone here who practices in the criminal law area
know what the threshold is, in real courtrooms, for proving an officer
DIDN'T have enough reasonable suspicion to do a Terry frisk? The
examples given in my class (known perp casing a pawn shop that had
been robbed four times in a year, etc.) didn't seem to push the
envelope whereby a judge or jury would say the officer abused the
doctrine.
Steve
bat
MJ> On May 24, 5:38 pm, "bat" <b...@bats.com> wrote:
MJ> [citing an Illinois statute codifying Terry stops]
??>> Does officer's right to ask these questions mean that the stopped
??>> person must answer them, and if he refuses, this is an offense by
??>> itself?
MJ> No, it doesn't say that. The statute you cite simply codifies the
MJ> holding of Terry v. Ohio, 392 US 1 (1968), in which SCOTUS authorized
MJ> such stops as not being violative of citizens' 4th Amendment rights
MJ> (to be secure against "unreasonable searches and seizures") because
MJ> such a stop did not rise to the level of a "seizure" if the person
MJ> stopped was free to leave. This section doesn't say anything about
MJ> what the PERSON STOPPED has to do, or can do, in that situation; it
MJ> simply says, as far as any possible allegations of police misconduct
MJ> are concerned, "there's no harm in asking" so long as all the
MJ> requirements of the statute are met.
But doesn't the officer (or anyone) has the right to ask any question
without any special statute? doesn't this special permission to ask only
certain questions mean that it's more than just a question? certainly, if he
was only asking a question, this could not be misconduct in any case;
misconduct appears on the scene only when the question comes with certain
force, doesn't it. And it seems that this special permission implies that
it's more than just a question.
regards
bat
SB> that would be avoided by not standing on them, and yet not support
SB> any important principle. The problem is to know when.
I'd think, standing on your rights supports the very important principle
that you have your rights to begin with. If you surrender them in a case
where it seems practical, in reality you surrender them forever - both your
yourself and for whomever you surrendered them to.1
regards
Matt Carter
>
> The guy was a sort of
> hyper-libertarian who didn't think
> it was government's right to order
> him to carry ID on his person.
Roughly half of all U.S. states have laws requiring an individual to
identify himself or herself to the police when the police have legally
stopped him or her with reasonable suspicion.
However, that does NOT mean that the individual is required to carry
identification (as in, a card or papers) at all times and present that
ID when stopped by the police as described above. I don't think that
any U.S. state has such a law. So, in that sense, I agree with that
"hyper-libertarian".
Many criminals use this to their advantage: If an individual is
caught by police doing something like littering, drinking in public,
urinating in public, or any of the other offenses where the local law
requires the police to issue a summons and release the individual on
his promise to pay the fine or appear in court, the individual will
often provide a fake name and date of birth. Since the police cannot
require an actual ID card, the individual gets off scot-free.
Matt Carter
>
> I'd think, standing on your rights supports the very important principle
> that you have your rights to begin with. If you surrender them in a case
> yourself and for whomever you surrendered them to.
How do you figure?
If you see a thug beating up an old lady and stealing her purse, then
police arrive on the scene and ask you whether you'll answer questions
about a robbery that just occurred in the area, you have a *right* to
refuse. If you "surrender" that right in that instance, you will
still have the right to remain silent in future instances. If you
"stand on" your right in that instance, you're attracting suspicion to
yourself, wasting vital (taxpayer-funded) police resources, and
helping a perpetrator to get away with a violent crime.
Perhaps you are thinking that if only the innocent voluntarily answer
questions for the police, then those who refuse to answer questions
will seem guilty, so to avoid that, you propose that everyone should
always refuse to answer questions for the police? Don't forget that
the police are much more effective at combating crime, which is in
everyone's interest, with help from the community.
Matt Carter
>
> a significant number of police officers will decide that
> your refusal to answer questions *is* probable cause.
Then those police officers are wrong, and any evidence they obtain as
a result will be successfully suppressed by your defense attorney.
Furthermore, you'll have a valid civil claim against the officer
personally and against the government that he represents. That is
well-established law that all police are trained on in basic police
academy training. The officer will not be able to invoke qualified
immunity.
Let me repeat for emphasis: a subject's invocation of his right to
remain silent CANNOT be used by police to create reasonable suspicion
(to justify a detention) or to create probable cause (to justify an
arrest).
The courts have been very consistent on this point. For example, in
the SCOTUS case of Terry v. Ohio, Justice White said:
"There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets. [...] given [reasonable
suspicion] it seems to me the person may be briefly detained against
his will while pertinent questions are directed to him. Of course, the
person stopped is not obliged to answer, answers may not be compelled,
and refusal to answer furnishes no basis for an arrest"
Imagine if this were not the case: A police officer could walk up to
a random person on the street and ask, "May I ask you some
questions?" If the person replied, "No.", then the officer could say,
"Aha! That's suspicious! Stop right there. I need to detain you.",
which would be a 4th Amendment seizure. This would be a loophole that
would swallow the 4th Amendment (to steal a phrase from Stuart A.
Bronstein).
Mike Jacobs
> But doesn't the officer (or anyone) has the right to ask any question
> without any special statute?
Pretty much, yes. And it did occur to me at first that perhaps the
legislature here had simply slipped into its collective tights-and-
cape outfit in its role as "Captain Obvious" for no good reason,
which, given how often legislatures do silly things for no good
reason, did not seem all that far-fetched.
> doesn't this special permission to ask only
> certain questions mean that it's more than just a question?
Not necessarily; that analysis _assumes_ the legislature must have had
a good reason to do what they did and that the statute represents a
CHANGE from, not merely a codification of, current law. In situations
like this, that can be a dangerous assumption.
> certainly, if he
> was only asking a question, this could not be misconduct in any case;
I agree. And after additional mulling, my latest take on what's
probably going on here is that the legislature probably wanted to
codify what "settled law" already permitted, in order to accomplish 2
things: (1) to make it crystal clear that an officer who stops and
questions a citizen on the street in accord with the requirements of
this statute IS ENTITLED TO QUALIFIED IMMUNITY so that he cannot even
be sued and brought to trial by the citizen he stopped, and
conversely, (2) to draw a line in the sand between clarity and
confusion, beyond which if a cop does anything MORE than that which
the statute permits him to do during the stop (such as, if he conducts
a patdown frisk for weapons), such action would NOT be within the
clear bright-line test of this statute and, thus, might ALSO entitle
the officer to QI. That result would likely obtain, since the
citizen's attempt to pierce the QI shield would not succeed so long as
the current state of the law as to what officers can and cannot
legally do is muddled (i.e. if officers could reasonably disagree on
what is or is not allowed); if that border between legal and illegal
police conduct were set forth in a bright-line statutory test, the
officers could hardly claim that they were puzzled about it. In a
nutshell, the only thing that to me makes sense is that this statute
was an attempt by the state legislature to offer cops ADDITIONAL
qualified immunity protection beyond that which they would have by
constitutional common law alone, as a practical matter making it
nearly impossible for citizens to successfully sue cops over what
happened during a Terry stop.
That said, I cannot see the statute as having any effect at all on the
admissibility of evidence obtained during the stop, if the citizen
wound up being arrested and prosecuted for a crime as a result. That
determination would still be entirely up to the exclusionary rule as
set forth by SCOTUS in Terry and its progeny.
> misconduct appears on the scene only when the question comes with certain
> force, doesn't it.
Yes, but... the procedural question is, who has the burden of proving
misconduct, and what has to be shown, and what must the cop do to
successfully defeat that showing with a defense of QI? I think the
net effect of this statute is, it makes it much easier for the cop to
successfully assert QI.
> And it seems that this special permission implies that
> it's more than just a question.
Only if you assume the statute goes beyond a mere codification of
existing law, as noted above. And, as to WHY the legislature would
WANT to take their time to codify an existing law, assuming they did
not do so just for political or grandstanding purposes as sometimes
happens, the only practical EFFECT I can discern of this statute is
that it makes it much harder for a citizen complainant to overcome a
QI defense raised by the cop on the basis that either (A) the cop was
complying with settled law by simply stopping a citizen to ask
questions, OR (B) the remainder of the law is muddled and therefore
the cop is STILL entitled to claim immunity.
Matt Carter
>
> Roughly half of all U.S. states have laws requiring[*] an individual to
> identify himself or herself to the police when the police have legally
> stopped him or her with reasonable suspicion.
* That is, when the officer requests that the individual identify
himself or herself, of course.
Mike
> "bat" wrote:
>> I'd think, standing on your rights supports the very important principle
>> that you have your rights to begin with. If you surrender them in a case
>> where it seems practical, in reality you surrender them forever - both [for]
>> yourself and for whomever you surrendered them to.
>
> How do you figure?
>
> If you see a thug beating up an old lady and stealing her purse, then
> police arrive on the scene and ask you whether you'll answer questions
> about a robbery that just occurred in the area, you have a *right* to
> refuse. If you "surrender" that right in that instance, you will
> still have the right to remain silent in future instances. If you
> "stand on" your right in that instance, you're attracting suspicion to
> yourself, wasting vital (taxpayer-funded) police resources, and
> helping a perpetrator to get away with a violent crime.
But if the little old lady told the cops "I was mugged" and they started
stopping every single person walking down the sidewalk and started
saying "OK, who are you? Why are you here? We don't like that answer.
Did you mug her? How can we be sure? etc. etc. etc." and you (and
everyone else) answered them simply to save yourself time further down
the road, then they will do this in ALL cases (or at least more than
they do now) simply cause it worked before. You have to draw the line
somewhere with "enough is enough" and bat is simply drawing that line in
a different place than you are.
He's basically giving the argument of:
"In Germany, they came first for the Communists, And I didn�t speak
up because I wasn�t a Communist;
And then they came for the trade unionists, And I didn�t speak up
because I wasn�t a trade unionist;
And then they came for the Jews, And I didn�t speak up because I
wasn�t a Jew;
And then... they came for me... And by that time there was no one
left to speak up."
Stan Brown
m...@yahoo.com>:
> Stan Brown wrote:
> >
> > a significant number of police officers will decide that
> > your refusal to answer questions *is* probable cause.
>
> Then those police officers are wrong, and any evidence they obtain as
> a result will be successfully suppressed by your defense attorney.
> Furthermore, you'll have a valid civil claim against the officer
> personally and against the government that he represents.
Sure -- but meanwhile I have the inconvenience of being arrested,
having to come up with bail (possibly with a non-refundable bail
bondsman's fee), and the expense of hiring an attorney to assert my
rights.
Yes, if I had infinite time and infinite funds it would be great to
stand on my rights. Likewise if I were unemployed and indigent I'd
have nothing to lose. But for those of us between those two
extremes, a sober cost-benefit analysis suggests that it might be
prudent to answer some questions even if not legally obliged to.
An analogy: In many states you have the legal right to drive faster
than the posted speed limit if your speed is safe for conditions.
Nevertheless what is actually enforced is the posted speed limit,
without regard to conditions. Sure, you might prevail in traffic
court with a good attorney *and* a high-priced traffic expert. But
again, sober cost-benefit analysis suggests that it makes more sense
to hold it down to the posted limit even when a higher speed is safe,
because the cost of asserting your right is greater than the value of
the right.
Cy Pres
<the_sta...@fastmail.fm> wrote:
>An analogy: In many states you have the legal right to drive faster
>than the posted speed limit if your speed is safe for conditions.
>Nevertheless what is actually enforced is the posted speed limit,
>without regard to conditions. Sure, you might prevail in traffic
>court with a good attorney *and* a high-priced traffic expert. But
>again, sober cost-benefit analysis suggests that it makes more sense
>to hold it down to the posted limit even when a higher speed is safe,
>because the cost of asserting your right is greater than the value of
>the right.
I would differ somewhat on the cost-benefit analysis. I believe that
since the likelihood of being pulled over for speeds between 5-10 mph
above the posted speed limit are so low, that the time saved by
traveling at these speeds justifies the risk of an occasional ticket.
Then, when tickets do arise, simply paying them or appearing pro se to
deal with them is the reasonable option. I also think it is,
generally, safer to travel at the prevailing rate of speed, so
safety-wise, the cost-benefit analysis favors speeding a bit.
Mike Jacobs
> On Sat, 30 May 2009 12:17:42 -0400, Stan Brown
> <the_stan_br...@fastmail.fm> wrote:
> >An analogy: In many states you have the legal right to drive faster
> >than the posted speed limit if your speed is safe for conditions.
I don't think so, Stan. Do you have a statutory or caselaw cite that
says so? Generally the "reasonable and safe" standard, a/k/a the
"prima facie" or "basic" speed law, works in the _other_ direction,
allowing the cops to ticket someone as "traveling too fast for
conditions" even where their speed is _below_ the posted limit, e.g.
in a snowstorm.
> >Nevertheless what is actually enforced is the posted speed limit,
> >without regard to conditions.
Agreed, except as noted above. You may, though, be old enough to
recall a time when at least 2 states, NV and MT, had no posted maximum
on their rural open highways, relying solely on the prima facie speed
law except in cities and congested areas. Of course, there a cynic
would say that the only time a speeding ticket was issued was in the
event of a 1-car crash, where the violation of the laws of physics
provided the necessary proof that the driver was going too fast for
conditions. That open-road freedom went by the wayside with the
Federal "double nickel" 55 mph limit as a response to the 1974 gas
crisis during the OPEC boycott, being tied to states' receipt of
Federal highway funds. Later modifications to the Federal rule have
allowed states to selectively increase limits to 65, and, now, to 75
in some locales.
> >Sure, you might prevail in traffic
> >court with a good attorney *and* a high-priced traffic expert.
IMO that is more likely due to getting a favorable judge who just
doesn't like speed enforcement (except where other offenses made the
speed _unsafe, such as tailgating or weaving in and out of other
traffic) and/or creating a "reasonable doubt" about the existence, OR
extent, of the violation (often, a judge will convict but will reduce
the _speed_ of the finding, along with the associated points and the
amount of the fine).
> >again, sober cost-benefit analysis suggests that it makes more sense
> >to hold it down to the posted limit even when a higher speed is safe,
> >because the cost of asserting your right is greater than the value of
> >the right.
>
> I would differ somewhat on the cost-benefit analysis. I believe that
> since the likelihood of being pulled over for speeds between 5-10 mph
> above the posted speed limit are so low, that the time saved by
> traveling at these speeds justifies the risk of an occasional ticket.
> Then, when tickets do arise, simply paying them or appearing pro se to
> deal with them is the reasonable option. I also think it is,
> generally, safer to travel at the prevailing rate of speed, so
> safety-wise, the cost-benefit analysis favors speeding a bit.
I generally go along with Cy Pres' modification of Stan's suggestion,
above, with one further modification. Most LEO jurisdictions have a
set "enforcement speed" which (depending on local variation) may be 5
to 10 mph over the posted limit, and they will not ticket at all below
that speed, since as a policy matter the police department has
determined that it is a waste of their time and resources to focus on
such low-level speeders (this is one of the reasons photo-radar
enforcement is becoming so popular). Putting aside the risk of
automated enforcement, though, the risk of being ticketed at 5-10 mph
over the posted limit is still virtually zero, so the need for cost-
benefit analysis really only kicks in for those going 10-20 over the
limit or more. IMO Cy Pres' analysis fits perfectly for those going
10-15 over the limit, which in fact is where the majority of travelers
on Interstate roads today choose to set their speed, and which is in
fact in line with the speeds traffic engineers expect motorists to
travel when setting speed limits (in the absence of other
considerations, such as gas-saving, revenue-generating, or local
political pressure). See, frex, the following brief excerpt from a
Federal study available at
http://www.ibiblio.org/rdu/sl-irrel.html
"Every State has a basic speed statute requiring drivers to operate
their vehicles at a speed that is reasonable and prudent under
existing conditions. This law recognizes that the maximum safe speed
varies due to traffic, roadway, weather, light and other conditions,
and places the responsibility of selecting a safe and reasonable speed
on the driver.
"The majority of motorists select a speed to reach their destination
in the shortest time possible and to avoid endangering themselves,
others, and their property. In selecting their speed, motorist
consider roadway, traffic, weather, and other conditions. The
collective judgment of the majority of motorists represents the level
of reasonable travel and acceptable risk. Prior research has shown
that the upper region of acceptable risk is in the vicinity of the
85th percentile speed.
"Most traffic engineers believe that speed limits should be posted
to reflect the maximum speed considered to be safe and reasonable by
the majority of drivers using the roadway under favorable conditions.
Procedures used to set speed limits have evolved through years of
experience and research. Most States and localities set safe and
reasonable maximum speed limits based on the results of an engineering
and traffic investigation. While all States and most jurisdictions use
the 85th percentile speed as a major factor n selecting the
appropriate speed limit for a given street or highway, other factors
such as roadside development, accident experience, and design speed
are often subjectively considered."
Interestingly, the above study goes on to empirically conclude that
most drivers pick their "safe and reasonable" speed based on the
actual conditions, and that within a fairly large (+/-20 mph) range,
artificial changes in the speed limit, higher OR lower (differing from
the 85th-percentile ideal standard) have virtually no effect on speeds
actually travelled OR on the number of accidents. Lower limits,
though, do a great job of increasing local ticket revenues simply by
causing more drivers to be ticketed (for going at a speed that is in
fact reasonable). From that paper's executive summary:
"The results of the study indicated that lowering posted speed limits
by as much as 20 mi/h (32 km/h), or raising speed limits by as much as
15 mi/h (24 km/h) had little effect on motorist' speed. The majority
of motorist did not drive 5 mi/h (8 km/h) above the posted speed
limits when speed limits were raised, nor did they reduce their speed
by 5 or 10 mi/h (8 or 16 km/h) when speed limits are lowered. Data
collected at the study sites indicated that the majority of speed
limits are posed below the average speed of traffic. Lowering speed
limits below the 50th percentile does not reduce accidents, but does
significantly increase driver violations of the speed limit.
Conversely, raising the posted speed limits did not increase speeds or
accidents."
atlas bugged
news:196617b6-061e-4e94...@t10g2000vbg.googlegroups.com...
> On May 31, 1:41 pm, Cy Pres <c.p...@yahoo.com> wrote:
>> On Sat, 30 May 2009 12:17:42 -0400, Stan Brown
>> <the_stan_br...@fastmail.fm> wrote:
>> >An analogy: In many states you have the legal right to drive faster
>> >than the posted speed limit if your speed is safe for conditions.
>
> I don't think so, Stan. Do you have a statutory or caselaw cite that
> says so? Generally the "reasonable and safe" standard, a/k/a the
> "prima facie" or "basic" speed law, works in the _other_ direction,
> allowing the cops to ticket someone as "traveling too fast for
> conditions" even where their speed is _below_ the posted limit, e.g.
> in a snowstorm.
>
>> >Nevertheless what is actually enforced is the posted speed limit,
>> >without regard to conditions.
>
> Agreed, except as noted above. You may, though, be old enough to
> recall a time when at least 2 states, NV and MT, had no posted maximum
> on their rural open highways, relying solely on the prima facie speed
> law except in cities and congested areas.
I'm old enough.
I also vividly recall that a Montana guy who was ticketed early on, where
there was no speed limit posted, took it all the way to the Supreme Court
and won. The law was stricken for vagueness.
Robert Bonomi
Mike Jacobs <mjaco...@gmail.com> wrote:
>On May 31, 1:41 pm, Cy Pres <c.p...@yahoo.com> wrote:
>> On Sat, 30 May 2009 12:17:42 -0400, Stan Brown
>> <the_stan_br...@fastmail.fm> wrote:
>> >An analogy: In many states you have the legal right to drive faster
>> >than the posted speed limit if your speed is safe for conditions.
>
>I don't think so, Stan. Do you have a statutory or caselaw cite that
>says so? Generally the "reasonable and safe" standard, a/k/a the
>"prima facie" or "basic" speed law, works in the _other_ direction,
>allowing the cops to ticket someone as "traveling too fast for
>conditions" even where their speed is _below_ the posted limit, e.g.
>in a snowstorm.
At least historically, there _were_ some "west of the Mississippi" states
where the numeric limits were 'advisory' only, and "reasonable and prudent"
was the _governing_ law. This probably didn't survive the 70's Federally-
mandated speed-limit reductions.
In jurisdictions where that ordering prevailed, if you were under the posted
limit, you were 'rebuttably' at a reasonable speed -- if the cops could
show that it was an 'unsafe speed' for the conditions, whether by the
one-car accident, or by visibility/stopping-distance/etc. figures, the
charge would stick.
Conversely, if you were over that posted number, you were 'rebuttably'
guilty. If you could show 'good reason why' it wasn't excessive for
the conditions -- e.g. "line of sight visibility on that road is over
1 mile at all times, and there is no intersecting road, nor entrance/exit
for over 5 miles, no weather conditions, etc." -- the charge would be
dismissed.
>
>I generally go along with Cy Pres' modification of Stan's suggestion,
>above, with one further modification. Most LEO jurisdictions have a
>set "enforcement speed" which (depending on local variation) may be 5
>to 10 mph over the posted limit, and they will not ticket at all below
>that speed, since as a policy matter the police department has
>determined that it is a waste of their time and resources to focus on
>such low-level speeders (this is one of the reasons photo-radar
>enforcement is becoming so popular). Putting aside the risk of
>automated enforcement, though, the risk of being ticketed at 5-10 mph
>over the posted limit is still virtually zero, so the need for cost-
>benefit analysis really only kicks in for those going 10-20 over the
>limit or more.
Comment: _DON'T_ *count* on that 'cushion' above the posted limits.
It is a matter of public record, back in the 'double nickle' days,
a significant number of law-abiding drivers of automobiles in Iowa,
raised a political fuss about the apparent 'free pass' being given
to big-rig commercial drivers in that regard. It got to be enough
of a 'hot potato' that the head of the state police (then called the
Highway Patrol, there) got called on the carpet by the Governer. He
tried to defend the practice, and nearly got handed his head (as in:
"you will enforce the law as written, or you will be out of a job!"
said the Iowa Governor, in almost those _exact_ words. As a result
of that conversation, Iowa was writing tickets for anything more than
just a couple of mph (that little tolerance was to allow for the
possibility of minor error in the speed-measuring equipment) over the
posted limits, -regardless- of type of vehicle.
Surprisingly, it worked. Repeated front-page coverage of things,
including the Governer's meeting with the head of the Highway Patrol,
in _all_ the major newspapers in the state, probably contributed
"just a little bit" to that. <cynical grin>
Stan Brown
<mjaco...@gmail.com>:
> On May 31, 1:41 pm, Cy Pres <c.p...@yahoo.com> wrote:
> > On Sat, 30 May 2009 12:17:42 -0400, Stan Brown
> > <the_stan_br...@fastmail.fm> wrote:
> > >An analogy: In many states you have the legal right to drive faster
> > >than the posted speed limit if your speed is safe for conditions.
>
> I don't think so, Stan. Do you have a statutory or caselaw cite that
> says so? Generally the "reasonable and safe" standard, a/k/a the
> "prima facie" or "basic" speed law, works in the _other_ direction,
> allowing the cops to ticket someone as "traveling too fast for
> conditions" even where their speed is _below_ the posted limit, e.g.
> in a snowstorm.
here's an example, from the Texas government Web site:
http://onlinemanuals.txdot.gov/txdotmanuals/szn/background.htm#i10015
79
"To exceed a prima facie speed limit does not automatically
constitute an infraction of the law, as reasonable and prudent
driving behavior is, at times, possible at speeds in excess of the
posted limit. However, the burden of proof of reasonable and prudent
conduct under the existing conditions rests with the driver. To
afford a driver this opportunity to exceed a prima facie speed limit
recognizes the fact that any posted speed limit cannot adequately
reflect the many different road conditions confronting the driver on
the same highways at different times."
Here's another, a quote from California law at
http://trafficticketusa.com/state_laws/california_speed_laws.htm
"22351 ... (b) The speed of any vehicle upon a highway in excess of
the prima facie speed limits in Section 22352 or established as
authorized in this code is prima facie unlawful unless the defendant
establishes by competent evidence that the speed in excess of said
limits did not constitute a violation of the basic speed law at the
time, place and under the conditions then existing."
Unless I'm very much mistaken, Maryland, Ohio, and New York were(are)
prima-facie states when I live(d) in them. My impression is that
more states than not are prima-facie states.
bat
MC> questions for the police, then those who refuse to answer questions
MC> will seem guilty, so to avoid that, you propose that everyone should
MC> always refuse to answer questions for the police?
Yes, absolutely. I suggest you watch this excellent video:
http://video.google.com/videoplay?docid=-4097602514885833865
regards
Seth
Matt Carter <r_q_eins...@yahoo.com> wrote:
>Incidentally, it's hard for me to imagine any interaction between an
>individual and the police being considered a "stop" if the individual
>was (always) free to leave.
What if the lack of ability to leave had nothing to do with the police
officer? For instance, they were on a train.
Seth
Seth
Matt Carter <r_q_eins...@yahoo.com> wrote:
>Many criminals use this to their advantage: If an individual is
>caught by police doing something like littering, drinking in public,
>urinating in public, or any of the other offenses where the local law
>requires the police to issue a summons and release the individual on
>his promise to pay the fine or appear in court, the individual will
>often provide a fake name and date of birth. Since the police cannot
>require an actual ID card, the individual gets off scot-free.
However, since the individual was caught violating the law, the police
officer can actually *arrest* him rather than merely writing a
citation; it's up to the officer.
Seth
Mike Jacobs
[I hit the "send" button prematurely again, dang it. Picking up
where I left off...]
We were talking about the CA speed laws. Note that the "prima facie
speed law" of vehicle code section 22352 is entirely separate from,
and independent of, the MAXIMUM speed limit set by section 22349 which
says, quoting http://www.dmv.ca.gov/pubs/vctop/d11/vc22349.htm -
"22349. (a) Except as provided in Section 22356, no person may drive
a vehicle upon a highway at a speed greater than 65 miles per hour.
(b) Notwithstanding any other provision of law, no person may drive a
vehicle upon a two-lane, undivided highway at a speed greater than 55
miles per hour unless that highway, or portion thereof, has been
posted for a higher speed ..."
That basically says it. The only exception noted is 22356, which
permits a 70-mph maximum on certain interstates.
So, to reiterate, the hierarchy of speed laws in CA (as in most other
states) is as follows:
The basic speed law 22350 says you must at all times drive at a speed
that is safe and reasonable for conditions. That law is ALWAYS
enforceable, if the speed you are driving is UN-safe for conditions,
but it does NOT allow you to legally drive at an allegedly "safe"
speed that exceeds the MAXIMUM speed permitted on your type of
roadway.
The prima facie speed law 22352 sets a 15 or 25 mph limit in business
and residential areas, school and senior zones, and at certain rail
crossings and intersections. One MAY legally argue, under 22351, in
defense of a ticket for exceeding such a prima facie speed limit, that
one's speed was in fact safe for conditions in accord with 22350, and
if that defense were believed, this would overcome the presumption set
by the prima facie speed law.
The maximum speed law, 22349 sets a 55 limit on 2-lanes (unless raised
per 22357, see below) and a 65 limit elsewhere, except that on certain
freeways it may be raised to 70 per 22356. THERE IS NO BASIS IN ANY
of the other statutes cited above, to argue that a speed in excess of
the MAXIMUM limit is "reasonable and safe" and therefore legal.
If you still doubt, and want to put a cap on the difference between a
"prima facie" limit sign and a "maximum" limit sign, take a look at
section 22357 of the Calif vehicle code, which deals with local
governments setting _intermediate_ speed limits by posting appropriate
signage after doing a study indicating a faster-than-presumed-prima-
facie speed would be safe, at http://www.dmv.ca.gov/pubs/vctop/d11/vc22357.htm
-
"22357. (a) Whenever a local authority determines upon the basis of
an engineering and traffic survey that a speed greater than 25 miles
per hour would facilitate the orderly movement of vehicular traffic
and would be reasonable and safe upon any street other than a state
highway otherwise subject to a prima facie limit of 25 miles per hour,
the local authority may by ordinance determine and declare a prima
facie speed limit of 30, 35, 40, 45, 50, 55, or 60 miles per hour or a
maximum speed limit of 65 miles per hour, whichever is found most
appropriate to facilitate the orderly movement of traffic and is
reasonable and safe. The declared prima facie or maximum speed limit
shall be effective when appropriate signs giving notice thereof are
erected upon the street and shall not thereafter be revised except
upon the basis of an engineering and traffic survey. This section does
not apply to any 25-mile-per-hour prima facie limit which is
applicable when passing a school ... or ... senior center."
Note the contrast in this section between a "prima facie" speed, which
the city may by ordinance increase from 25 to anywhere between 30 and
60 mph, and a "maximum" speed, which a city may set by ordinance at 65
even on a 2-lane road, if "safe" as indicated by engineering
studies. The locality is not authorized to raise the prima facie
limit near schools and senior centers. And, of course, it is not
authorized to permit speeds in excess of the statewide MAXIMUM speed
limit either; the most it can do is boost the 55 maximum on 2-lanes to
65.
Another myth put to rest, I hope. I have not analyzed the TX laws but
invite you to do so, keeping in mind the above distinctions, and I
suspect you will find they have nearly the same effect as the CA
laws. Even in TX, I presume, exceeding a _maximum_ speed limit is a
totally independent offense from exceeding a posted, or prima facie,
speed limit.
Mike Jacobs
> > Generally the "reasonable and safe" standard, a/k/a the
> > "prima facie" or "basic" speed law, works in the _other_ direction,
> > allowing the cops to ticket someone as "traveling too fast for
> > conditions" even where their speed is _below_ the posted limit, e.g.
> > in a snowstorm.
[counter-example from Texas snipped]
Okay, I left out a word from the above quoted statement: I should have
said, even where their speed is below the posted MAXIMUM limit...."
The old shibboleth of the prima facie speed law never seems to die.
In fact we are comparing apples and oranges, and since I thought we
were all talking about apples, I left out a few of the basics.
The structure of the speed laws in most states has 3 main elements:
(1) a basic speed law; (2) a statute setting prima facie speed limits
on certain kinds of roadways; and (3) a maximum speed law.
Throughout this discussion, I have been talking only about the MAXIMUM
speed law, and occasions when the basic speed law or a prima facie
speedlaw might authorize a citation to be issued for a lower-than-
maximum speed. Your point, Stan, and it is correct, is that a
motorist can rebut a ticket issued for violating a prima facie speed
limit, OR for violating the basic speed law, IF he can show by
competent evidence that his actual speed was reasonably safe, BUT IN
NO INSTANCE does that showing permit a motorist to exceed the state-
law MAXIMUM speed. The "but it was safe" argument simply will not
cut it in that instance; a maximum is a maximum, period.
Since I'm already a little bit familiar with the Calif statutes and
don't know anything about the TX ones, let's look at the points you
raised in context of Calif. law.
> Here's another, a quote from California law athttp://trafficticketusa.com/state_laws/california_speed_laws.htm
>
> "22351 ... (b) The speed of any vehicle upon a highway in excess of
> the prima facie speed limits in Section 22352 or established as
> authorized in this code is prima facie unlawful unless the defendant
> establishes by competent evidence that the speed in excess of said
> limits did not constitute a violation of the basic speed law at the
> time, place and under the conditions then existing."
Please note that this section makes specific reference to another
section of the CA vehicle code, 22353, which ssets the relevant "prima
facie speed limits. Let's look at THAT section to see what 22351 is
really talking about. I quote, with paraphrased elisions, from
http://www.dmv.ca.gov/pubs/vctop/d11/vc22352.htm
"22352. (a) The prima facie limits are as follows and shall be
applicable unless changed as authorized in this code and, if so
changed, only when signs have been erected giving notice thereof:
(1) Fifteen miles per hour:
(A) When traversing a railway grade crossing, ...
(B) When traversing any intersection of highways [with obstructed
vision] except at an intersection protected by stop signs or yield
right-of-way signs or controlled by official traffic control signals.
(C) On any alley.
(2) Twenty-five miles per hour:
(A) On any highway other than a state highway, in any business or
residence district unless a different speed is determined by local
authority under procedures set forth in this code.
(B) When approaching or passing a school ...
(C) When passing a senior center ..."
So, these "prima facie" speed limts everyone is talking about are
FIFTEEN or TWENTY-FIVE mph. Yes, it is legally a defense UNDER to a
ticket for violating a 15-mph prima facie speed that it was "safe to
go faster" Note that this section is entirely separate fromi and not
dependeng on the MAXIMUM SPEED LAW
> Unless I'm very much mistaken, Maryland, Ohio, and New York were(are)
> prima-facie states when I live(d) in them. My impression is that
> more states than not are prima-facie states.
Yes, they are. That means if you get ticketed for doing 45 in a zone
posted for 35, you can argue (lotsa luck) that doing 45 should not be
illegal under all your circumstances because it was safe at the
time. But if you get ticketed for exceeding the 55 MAXIMUM limit on
2-lane undivided roads, or the 65 limit on freeways, the "it was safe
to go faster than the maximum" argument carries no legal weight at
all. If the facts indicate speed in excess of the maximum, that is
illegal, period, in MD (and CA) and I presume all those other "prima
facie" states.
Barry Gold
Yes, that is an excellent video. I watched it all the way through.
I would have liked to see the other half -- where the cop responded.
It would be interesting to hear the what the class heard after the law
professor stopped talking and turned over the podium.
--
Barry Gold, webmaster:
Alarums & Excursions, Xenofilkia: http://places.to/xeno
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Mike
> Yes, absolutely. I suggest you watch this excellent video:
> http://video.google.com/videoplay?docid=-4097602514885833865
In the sense of fair play, this is a video of a law professor giving a
talk to a class and there was a "rebuttal" from a police officer that's
not in the above linked video. Here is the full version with the
"rebuttal" included.
http://video.google.com/videoplay?docid=8167533318153586646&hl=en
However, I do put rebuttal in quotes because the officer did not ever
try to say "here's why you should talk to us" (other than basically
saying "sometimes you might do 3 years instead of 5 if you do help us
out" or such) but, instead, basically talked about how he gets
confessions, etc. He did close with "but I never sent an innocent person
to jail." That's what I don't agree with. He might not have, personally,
but cops do so at times (either in good faith or with malice.)
Art S
"Barry Gold" <bg...@nyx.net> wrote in message news:12442379...@irys.nyx.net...
> In article <VomVl.31092$yr3....@nlpi068.nbdc.sbc.com>,
> bat <b...@bats.com> wrote:
>>Yes, absolutely. I suggest you watch this excellent video:
>>http://video.google.com/videoplay?docid=-4097602514885833865
>
>
> Yes, that is an excellent video. I watched it all the way through.
>
> I would have liked to see the other half -- where the cop responded.
> It would be interesting to hear the what the class heard after the law
> professor stopped talking and turned over the podium.
Part 1 (the same as the google video): http://www.youtube.com/watch?v=i8z7NC5sgik
Part 2 (the officer's response): http://www.youtube.com/watch?v=08fZQWjDVKE&feature=related
Art
bat
John F. Carr
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>At least historically, there _were_ some "west of the Mississippi" states
>where the numeric limits were 'advisory' only, and "reasonable and prudent"
>was the _governing_ law. This probably didn't survive the 70's Federally-
>mandated speed-limit reductions.
All states now have some number that is referred to as the "speed
limit." Usually this is a limit; sometimes it is more advisory.
States where driving 90+ miles per hour is not per se illegal are
Massachusetts
Oregon (rural non-Interstates)
Rhode Island
Minnesota (outside of city limits)
Texas
Utah
Each of these states has a law saying that exceeding a speed
limit is prima facie evidence but not conclusive evidence of
unreasonable speed, with unreasonable speed being the true
offense. These are different from former Montana law, which
lacked a numeric maximum, or current Autobahn law, where 130
is just a suggestion.
Several other states have laws like Connecticut or California,
which say on most streets it is illegal to drive over 55 and
presumptively illegal to drive over the posted speed limit.
There are short sections of road in some states not subject to
any numeric speed limit.
>Conversely, if you were over that posted number, you were 'rebuttably'
>guilty. If you could show 'good reason why' it wasn't excessive for
>the conditions -- e.g. "line of sight visibility on that road is over
>1 mile at all times, and there is no intersecting road, nor entrance/exit
>for over 5 miles, no weather conditions, etc." -- the charge would be
>dismissed.
The only precedential case I know of requiring a finding of not guilty
based on evidence like that is from Connecticut in the 1960s. Driver
was charged with going 70 in on a highway subject to a 70 mph absolute
limit and a 60 mph prima facie limit. The appeals court said given all
the evidence showing favorable conditions to allow a conviction in such
circumstances would be to treat prima facie limits as absolute.
I am told that Arizona courts are reluctant to convict for less than
10 over a prima facie limit without additional evidence of unsafe speed.
Massachusetts courts say that one may be acquitted of speeding despite
exceeding the speed limit but have not overturned a conviction on the
grounds that a speed over the limit was clearly reasonable. Texas'
law is the same (the court explicitly followed Massachusetts precedent).
In search-and-seizure cases Texas courts have said that a traffic stop
for a speed over the limit is allowed. There was no evidence offered
in those cases to show that the police officer should have known that
the speed was reasonable despite being over the limit.
>As a result
>of that conversation, Iowa was writing tickets for anything more than
>just a couple of mph (that little tolerance was to allow for the
>possibility of minor error in the speed-measuring equipment) over the
>posted limits, -regardless- of type of vehicle.
Governor Dukakis told state police to enforce 55 in Massachusetts, and
police even formed roadblocks to do it. Enforcement stopped after too
many voters complained to elected officials.
--
John Carr (j...@mit.edu)
Mike Jacobs
> In article <R-GdnY8a6J4yTbvXnZ2dnUVZ_gCdn...@posted.nuvoxcommunications>,
> Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
> >At least historically, there _were_ some "west of the Mississippi" states
> >where the numeric limits were 'advisory' only, and "reasonable and prudent"
> >was the _governing_ law. This probably didn't survive the 70's Federally-
> >mandated speed-limit reductions.
>
> All states now have some number that is referred to as the "speed
> limit." Usually this is a limit; sometimes it is more advisory.
Sort of, John, but not exactly. They are all "limits." The
difference is whether the statute in question says a stated speed is a
MAXIMUM speed limit, or that it is a PRIMA FACIE speed limit. In
addition to those two kinds of laws, all states AFAIK also have a
"basic speed law" which makes it illegal to drive faster than is safe
for conditions.
A "prima facie" speed limit doesn't mean it's merely "advisory," like
the yellow signs that are posted on freeway offramps and other curves
to warn motorists with unwieldy vehicles (such as trucks, vehicles
towing trailers, and cars with weak or worn-out suspensions) of a
speed that would be safe on that curve for nearly all vehicles on the
road in most conditions. Most modern cars in good repair and with
good tires can easily and safely exceed that advisory speed, in good
conditions. With a yellow sign, a motorist who is sufficiently
familiar with his vehicle's and his own capabilities and with the road
in question can (in absence of conflicting traffic) safely go faster
than the yellow sign indicates and CANNOT AFAIK be ticketed for doing
so. That is an "advisory" limit.
A "prima facie" limit is one above which a motorist is PRESUMED to be
operating at an unsafe speed; in other words, going faster than that
is enough to support a ticket, and if there is no other evidence
presented by the defendant to justify a higher speed, it is also
enough to support a conviction for speeding. That is not an
"advisory" limit.
Where a "maximum" speed limit applies, NO such defense of "it was safe
to go faster" can legally help. Speeding above a maximum limit is
basically a strict-liability offense, one where safety is not legally
even an issue as a defense.
> States where driving 90+ miles per hour is not per se illegal are
>
> Massachusetts
Okay, just like we did for Calif. in response to Stan Brown's query,
I'll take a look at the first state on your list. It's up to you to
apply the criteria and research any other states you are interested
in.
MA apparently has no state-wide MAXIMUM speed limit, true. The main
speed law in MA is M.G.L. Ch. 90, Sec.17, which sets prima facie speed
limits for different kinds of roadways, as do the prima facie laws in
most states. See
http://www.mass.gov/legis/laws/mgl/90-17.htm
However, MA _does_ have a maximum speed limit (65 mph) n the Mass
Turnpike; see
http://www.mass.gov/legis/laws/mgl/90-17a.htm -
"Section 17A. Unless otherwise prohibited by federal law, the maximum
speed for motor vehicles traveling on interstate highway route 90, the
Massachusetts Turnpike, between the New York state border and the
Westfield interchange, and from the Ludlow interchange to the Auburn
interchange, interstate highway route 91 from the Vermont border to
Northampton, Exit 21, and interstate 95 from the Newbury interchange
56 to the Danvers interchange 50, shall be sixty-five miles per hour."
and see also http://www.mit.edu/~jfc/ma.html -
"The Massachusetts Turnpike, which for legal purposes includes the
Boston Harbor tunnels, is exempt from the state prima facie speed
limits. The signs you see are not speed limits for the purposes of MGL
90-17. These signs are informing you of Turnpike regulations: 730 CMR
7.08(6)(c) sets absolute limits on the Turnpike. The fine and
insurance surcharge are the same as for speeding. ...
"The Metropolitan District Commission has a regulation prohibiting
speeds greater than posted (350 CMR 4.01(2))."
Go faster than that on the MassPike or in the Boston area, and no
"prima facie" defense is available. Since Mass. also permits
localities to set maximum (not just prima facie) speed limits, the
Metro District Commission regulation basically makes the posted limits
into maximum limits within the boundaries of its jurisdiction (Boston
Metro area?) Be my guest and do 90+ mph on some twisty road in the
Berkshires, if you dare, and try to convince a judge that exceeding
the prima facie limit by that amount on such a road is reasonably
safe.
> Each of these states has a law saying that exceeding a speed
> limit is prima facie evidence but not conclusive evidence of
> unreasonable speed, with unreasonable speed being the true
> offense.
My general point, which I have already beaten into the ground and will
not continue to make on this thread in the face of continued
(successful) efforts by MLMists such as yourself to come up with new
counterexamples, is that even in states which have such a prima facie
law on the books, that law may not be the ONLY statute that regulates
speed. Some other section, perhaps buried in a completely different
section of the Code, may apply a _maximum_ (not prima facie) limit on
certain roads or under certain conditions (e.g. work zones, bridges,
tunnels, turnpikes). Anyone who wants to know for sure whether a
given speed limit sign indicates just a "prima facie" limit or a
"maximum" limit, usually CANNOT TELL just from looking at the sign.
So, unless your GPS is accurately programmed to store and apply this
information from each state's statutory database as you drive along
(would that be robotic practice of law without a license?), OR unless
you thoroughly research for yourself _all_ potentially applicable
speed laws (including local and municipal regulations, as well as
scattered statutory sections setting limits just for specific named
highways or regions) before beginning your trip, you still cannot
safely rely on the, admittedly, true fact that states like MA still do
not have a STATE-WIDE maximum speed law.
> These are different from former Montana law, which
> lacked a numeric maximum,
I believe Montana law, like Nevada's, in the "old days" DID set
numerical prima facie limits for residential and business districts
and other congested areas. It's just that the no-numeric-limits,
basic speed law which applies everywhere was, AFAIK the _only_ law
those 2 states had that would apply once you got away from populated
areas and onto the wide open highway.
> or current Autobahn law, where 130 is just a suggestion.
Are you sure? I have heard that most sections of the Autobahn now
have maximum speed limits too; the segments with no maximum limit are
becoming fewer and farther between as authorites impose new limits to
deal with growing traffic congestion and expanding building
development along most portions of these routes. However, I'm not
going to research that part, since I won't be driving in Germany any
time soon.
The limits set by Autobahn authorities, though, are typically much
higher than those any USA jurisdiction allows by signage. There, the
European custom of drive-on-the-right except to pass is much more than
a suggestion, and is strictly enforced in order to keep some 55-mph
Deux Chevaux from hogging the left lane and getting in the way of a
150-mph Porsche or Mercedes.
> Several other states have laws like Connecticut or California,
> which say on most streets it is illegal to drive over 55
I assume that part refers to a "maximum" speed limit law.
> and
> presumptively illegal to drive over the posted speed limit.
That is, by definition, what a "prima facie" speed limit law says.
Mass. a generally applicable, prima facie speed limit law in MGL Ch.
90 Sec. 17. Or are you talking about something else? The fact that
a given state has a prima facie law _does_not_ preclude it from having
either a generally applicable _maximum_ speed law TOO, as Calif and
(apparently, I'll take your word for it) Conn. do, or from having
scattered, separate maximum speed limit laws that only apply on
certain roads, as Mass. does. There is no inherent conflict, IOW,
between the 2 types of laws, or between either of those and the basic
speed law (reasonable and safe for conditions) for that matter.
> There are short sections of road in some states not subject to
> any numeric speed limit.
Can you name any? With not even a _prima_facie_ numerical limit,
today? I'm not talking about just those lacking a _maximum_ limit, as
we have already discussed is true of most rural roads in Mass.?
> >Conversely, if you were over that posted number, you were 'rebuttably'
> >guilty. If you could show 'good reason why' it wasn't excessive for
> >the conditions -- e.g. "line of sight visibility on that road is over
> >1 mile at all times, and there is no intersecting road, nor entrance/exit
> >for over 5 miles, no weather conditions, etc." -- the charge would be
> >dismissed.
That is true, if you were caught in a zone where only a _prima_facie_
limit (not a max limit) applied.
> The only precedential case I know of requiring a finding of not guilty
> based on evidence like that is from Connecticut in the 1960s. Driver
> was charged with going 70 in on a highway subject to a 70 mph absolute
> limit and a 60 mph prima facie limit. The appeals court said given all
> the evidence showing favorable conditions to allow a conviction in such
> circumstances would be to treat prima facie limits as absolute.
That makes sense. A maximum limit applicable on a certain highway
trumps the generally applicable prima facie limits that apply on all
highways of that type "unless otherwise posted", just as in the Calif.
situation we were discussing on this thread a couple of days ago. It
sounds like that was just a case of stupid (or biased) enforcement, or
else some other irrelevancy was going on that led to that ticket.
> I am told that Arizona courts are reluctant to convict for less than
> 10 over a prima facie limit without additional evidence of unsafe speed.
Probably true,. I would guess. It's one of those wide-open Western
states with lots of unpopulated, straight roads thru miles of empty
desert.
> Massachusetts courts say that one may be acquitted of speeding despite
> exceeding the speed limit
Well, that was <insert sarcastic epithet> of them. ISTM one can
_always_ be acquitted of a charge so long as the factfinder (judge or
jury) can claim a reasonable doubt, or in cases of jury nullification,
and if so, the state may not appeal the acquittal. However, perhaps
you are saying that even where the factfinder admits that the state
has proven defendant was speeding over the numerical prima facie
limit, the state likewise may not appeal an acquittal if the
factfinder also finds that the actual speed was reasonable and safe.
> but have not overturned a conviction on the
> grounds that a speed over the limit was clearly reasonable.
Factfinders are usually given great deference by appellate courts.
It would be extremely difficult for a defendant to argue to an
appeallate court that his speed was safe _as_a_matter_of_law_
regardless of what the posted prima facie limit said, if the
factfinder at his trial rejected the same contention. Of course, the
same appeallate court would also uphold the trial factfinder if the
trial level decisionmaker found that the actual speed _was_
reasonable. "Clearly" doesn't enter into an appeal of a factual issue
at all except in the most egregious cases (generally categorized as
"clearly erroneous" or as an "abuse of discretion" and even there, on
appeal those equitable standards will only overturn a _conviction_.
Due to the double jeopardy rule, an acquittal is final and will not be
overturned, period, unless it was due to some _legal_ (not factual)
error by the trial judge that prejudiced the prosecution.
> Texas'
> law is the same (the court explicitly followed Massachusetts precedent).
Okay, I'll take your word for it again.
> In search-and-seizure cases Texas courts have said that a traffic stop
> for a speed over the limit is allowed.
Even in a "prima facie" (not maximum) speed zone, I presume you
mean. Yes, that's what a "prima facie" law means; it provides
sufficient probable cause to initiate a stop, _and_ constitutes "prima
facie" evidence sufficient to sustain a conviction if no contrary
evidence is presented and believed, but violation of a prima facie
limit, alone, does not create an _unrebuttable_ presumption of guilt.
Fortunately, the latter is not the standard the cops have to meet,
when initiating a traffic stop; they need only show probable cause,
provided by violation of a prima facie limit.
> There was no evidence offered
> in those cases to show that the police officer should have known that
> the speed was reasonable despite being over the limit.
Sorry, I can't parse that sentence. Who would you expect to offer
such evidence? And why? Not that any of it would eliminate the
fact that probable cause for the stop was established by a speed in
excess of the prima facie limit. Even if a judge _did_ later on
believe the defense argument, at the ticket trial, and throw out the
speeding ticket because he found the higher-than-limit speed was safe,
the initial stop was STILL kosher and, if the cops found any
contraband during that stop (the issue would not arise, if they
didn't, natch) the conviction for possession of that contraband CAN be
sustained, and the evidence will not be suppressed as fruit of an
illegal search. The reasonableness of the speed is simply not an
issue in the trial over the pot bust or whatever, so long as defendant
does not dispute that his speed was in fact over the prima facie
limit.
> >As a result of that conversation,
WHAT conversation? You lost me.
> >Iowa was writing tickets for anything more than
> >just a couple of mph (that little tolerance was to allow for the
> >possibility of minor error in the speed-measuring equipment) over the
> >posted limits, -regardless- of type of vehicle.
Do you mean, Iowa started doing this, in reliance on the TX _caselaw_
that upheld the legality of such a traffic stop? And that they were
doing so, not so much to enforce the speed law, as to search for drugs
'n' stuff?
> Governor Dukakis told state police to enforce 55 in Massachusetts, and
> police even formed roadblocks to do it. Enforcement stopped after too
> many voters complained to elected officials.
Yeah, I hate rolling roadblocks too. They cause all the traffic to
bunch up and are thus much more dangerous than allowing traffic to
flow at its natural speed, even putting aside all the road-ragers who
let their emotions get the better of their common sense while driving
and do something aggressively stupid under those conditions.
Wayne Mitchell
>Where a "maximum" speed limit applies, NO such defense of "it was safe
>to go faster" can legally help. Speeding above a maximum limit is
>basically a strict-liability offense, one where safety is not legally
>even an issue as a defense.
Is anyone aware of any case where such a speed limit has been defended
against a charge that it violates the principle of limited government?
If we stipulate that public safety is not the purpose of the
proscription, what allowable governmental function does it serve?
--
Wayne M.
Matt Carter
> >If an individual is
> >caught by police doing something like littering, drinking in public,
> >urinating in public, or any of the other offenses where the local law
> >requires the police to issue a summons and release the individual on
> >his promise to pay the fine or appear in court, the individual will
> >often provide a fake name and date of birth. Since the police cannot
> >require an actual ID card, the individual gets off scot-free.
>
> However, since the individual was caught violating the law, the police
> officer can actually *arrest* him rather than merely writing a
> citation; it's up to the officer.
Not in my state (Virginia).
In Virginia, pursuant to VA Code 46.2-936, the officer is not
permitted to do a full custodial arrest in the case of most
misdemeanors.
Unless the suspect:
- refuses to promise to pay or appear in court, or
- refuses to discontinue the illegal act,
then the officer is required to release the suspect with a citation.
Matt Carter
> But if the little old lady told the cops "I was mugged" and they started
> stopping every single person walking down the sidewalk and started
> saying "OK, who are you? Why are you here? We don't like that answer.
> Did you mug her? How can we be sure? etc. etc. etc."
In that scenario, the police have gone overboard and are stopping
people without reasonable suspicion, which is generally unlawful.
If people observe the police breaking the law or generally being
counterproductive, they ought to do more than merely invoke their
right to refuse to cooperate. Rather, I'd suggest that they should be
proactive: record and report the police misbehavior. The police are
supposed to be there to help. If they become authoritarian and
hostile to the population in general, then things need to change (laws
need to be made/changed, police training needs to be improved, etc.).
Change doesn't happen by refusing to answer questions. Change happens
when enough people complain to the police chief, lobby their
legislature, or seek redress in court.
> He's basically giving the argument of:
>
> "In Germany, they came first for the Communists, And I didn't speak
> up because I wasn't a Communist;
>
> And then they came for the trade unionists, And I didn't speak up
> because I wasn't a trade unionist;
>
> And then they came for the Jews, And I didn't speak up because I
> wasn't a Jew;
>
> And then... they came for me... And by that time there was no one
> left to speak up."
Excellent point.
We should actively resist if *anyone*'s civil rights are being
trampled.
But that's a far cry from refusing to answer any police questions
ever.
Mr. Bat is free to act within his rights and refuse to answer any
police questions if he wishes. But I can certainly think of scenarios
where it is preferable (in my opinion) to answer questions for the
police.
Example 1:
Officer: "Why are you breaking into that house?"
Me: "It's my house. I locked my key inside. Here's my driver's
license showing that I live here."
Example 2:
Officer: "That guy just kicked you in the shoulder! Are you ok? Do
you want to press charges?"
Me: "No, no. Don't worry officer. He's my friend. We're just having
an outdoor karate practice session."
Example 3:
Officer: "What is that plastic baggie with white powder hanging out of
your pocket?"
Me: "Oh, that's just milk formula powder for my six-month-old son.
See him right over there? There he is in my wife's arms. Whenever
we're going to be away from home for more than a few hours, we pre-
measure the dry formula into packets so that we can just add it to
four-ounce bottles of water as needed. (Formula goes bad after a
couple of hours at room temperature.) Here, you can see/smell/taste
the powder for yourself."
(Saves a 30-minute detention waiting for a drug-sniffing dog.)
Et cetera.
Barry Gold
>Factfinders are usually given great deference by appellate courts.
>It would be extremely difficult for a defendant to argue to an
>appeallate court that his speed was safe _as_a_matter_of_law_
>regardless of what the posted prima facie limit said, if the
>factfinder at his trial rejected the same contention. Of course, the
>same appeallate court would also uphold the trial factfinder if the
>trial level decisionmaker found that the actual speed _was_
>reasonable. "Clearly" doesn't enter into an appeal of a factual issue
>at all except in the most egregious cases (generally categorized as
>"clearly erroneous" or as an "abuse of discretion" and even there, on
>appeal those equitable standards will only overturn a _conviction_.
>Due to the double jeopardy rule, an acquittal is final and will not be
>overturned, period, unless it was due to some _legal_ (not factual)
>error by the trial judge that prejudiced the prosecution.
I have never heard of an acquittal being overturned based on judicial
error. Acto Wikipedia:
http://en.wikipedia.org/wiki/Double_jeopardy
There are two exceptions to the general rule that the prosecution
cannot appeal from an acquittal. If the earlier trial is proven to
be a fraud or scam, double jeopardy will not prohibit a new trial.
In Harry Aleman v. Judges of the Criminal Division, Circuit Court
of Cook County, Illinois, et al., 138 F.3d 302 (1998), an appeals
court ruled that a man who bribed his trial judge and was
acquitted of murder was allowed to be tried again because his
bribe prevented his first trial from actually putting him in
jeopardy.
The other exception is that prosecutors may appeal when a trial
judge sets aside a jury verdict for conviction with a judgment
notwithstanding the verdict for the defendant. A successful appeal
by the prosecution would simply reinstate the jury verdict and so
would not place the defendant at risk of another trial.
This is another good reason for a prosecutor to comply with discovery
rules. Let's say that the prosecutor has some piece of evidence which
he fails to tell the defense attorney about. He goes to introduce it
at trial, the defense objects, the judge excludes the evidence. The
jury acquits. The judge's ruling excluding the evidence was clearly
erroneous. WIll an appeals court order a new trial? I very much doubt
it.
If the prosecutor had disclosed the evidence in advance, the defense
would have been expected to challenge it _before_ the trial began.
That way, an adverse ruling by the judge could be appealed before a
jury was impaneled.
Note wrt the second exception: if the jury brings in a verdict of
Guilty and the judge overrules and enters JNV, the prosecution can
appeal and possibly get it overturned. OTOH, if the judge directs an
acquittal before the jury brings back a verdict, AFAIK that is final.
(Again, with the exception where the judge was bribed so that the
defendant was never truly "in jeopardy".)
Matt Carter
>
> >Incidentally, it's hard for me to imagine any interaction between an
> >individual and the police being considered a "stop" if the individual
> >was (always) free to leave.
>
> What if the lack of ability to leave had nothing to do with the police
> officer?
In that case, the individual was *not* free to leave, so my statement
(which was conditioned on "the individual was free to leave") does not
apply.
> For instance, they were on a train.
What I think you wanted to ask is, "Is it considered a fourth
amendment seizure if the police question an individual who is, due to
conditions unrelated to the police presence, not free to leave?"
The answer is "No."
In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court
said that a seizure occurs in only one of two ways. There must be
either:
1. the application of physical force, however slight, OR
2. submission to an officer's "show of authority" to restrain the
subject's liberty.
If the subject's foot is stuck in a drain, and an officer merely walks
up to the subject and asks him questions, there is no fourth amendment
seizure.
If the subject is on a crowded train and an officer standing next to
the subject asks him questions, there is no fourth amendment seizure.
Why do we care whether there is a fourth amendment seizure here?
Because if there is, the officer generally* needed to have at least
reasonable suspicion that the subject was involved in a crime.
* In very limited circumstances in the public interest (such as
seatbelt checkpoints, DUI checkpoints, urgent safety issues, traffic
direction, and investigation of a crime that occurred recently at that
location), courts have permitted officers to briefly stop individuals
without reasonable suspicion. These things do not run afoul of the
fourth amendment because they are all considered "reasonable"
seizures.
Now suppose the subject in that crowded train scenario says, "Officer,
I'd rather not talk to you." What happens if the officer keeps
questioning the subject against the subject's wishes? I don't know,
but I'm pretty sure the officer's behavior is illegal or tortious IF
it would be illegal/tortious for a private individual in that
circumstance to do the same thing. If the subject requests to
discontinue the conversation, and the officer continues to pepper the
subject with questions, and the subject then blurts out a criminal
confession... Hmmm. It might be suppressible, but I don't know. Any
criminal defense attorneys out there?
Daniel R.Reitman
>In article <R-GdnY8a6J4yTbvX...@posted.nuvoxcommunications>,
>Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>>At least historically, there _were_ some "west of the Mississippi" states
>>where the numeric limits were 'advisory' only, and "reasonable and prudent"
>>was the _governing_ law. This probably didn't survive the 70's Federally-
>>mandated speed-limit reductions.
>
>All states now have some number that is referred to as the "speed
>limit." Usually this is a limit; sometimes it is more advisory.
>States where driving 90+ miles per hour is not per se illegal are
>
>Massachusetts
>Oregon (rural non-Interstates)
>Rhode Island
>Minnesota (outside of city limits)
>Texas
>Utah
>
>Each of these states has a law saying that exceeding a speed
>limit is prima facie evidence but not conclusive evidence of
>unreasonable speed, with unreasonable speed being the true
>offense. These are different from former Montana law, which
>lacked a numeric maximum, or current Autobahn law, where 130
>is just a suggestion.
>. . . .
Not true in Oregon. ORS 811.100 imposes a basic speed standard. ORS
811.111 makes exceeding a limit a separate infraction, including a
limit of 65 on interstates. ORS 811.108 specifically explains that
both the basic speed statute and limits apply, effectively on a
"whichever is lower" basis.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Cy Pres
wrote:
>This is another good reason for a prosecutor to comply with discovery
>rules. Let's say that the prosecutor has some piece of evidence which
>he fails to tell the defense attorney about. He goes to introduce it
>at trial, the defense objects, the judge excludes the evidence. The
>jury acquits. The judge's ruling excluding the evidence was clearly
>erroneous. WIll an appeals court order a new trial? I very much doubt
>it.
If the prosecution has evidence they want to introduce, and
deliberately fail to disclose it until trial, it seems vanishingly
unlikely that a judge's choice to exclude that evidence as a sanction
could be an abuse of discretion. Even if the judge chose a clearly
bogus reason to exclude it, the existence of a valid reason for
excluding it (failure to disclose) would generally result in an
appeals court upholding the exclusion.
Generally, such evidentiary rulings are, as you point out, made before
trial, so that they may be appealed, precisely because evidentiary
errors against a criminal defendant generally cannot ever be appealed
if that defendant is acquitted. I'm not sure what would happen if a
prosecutor attempted to stop a trial because of evidence exclusion at
trial, in order to take an immediate appeal. (I suppose one potential
sleazy tactic would be to deliberately create a mistrial at this
point.)
John F. Carr
As long as it is possible that somebody driving 26 might be
more dangerous, or loud, or whatever, than somebody driving
25 courts will permit the legislature to draw an arbitrary
line. There is no constitutional right to good law, or better
law, or the best possible law.
Keep in mind that the judges who decide whether an absolute
speed limit is constitutional are colleagues of the judges
whose workload is reduced by abolishing defenses, jury trials,
rules of evidence, and the like. An appeals court approved
of abolishing defendants' rights in traffic cases in
Massachusetts in part because preparing criminal warrants
was work and that work could be eliminated by treating cases
as "civil."
--
John Carr (j...@mit.edu)
John F. Carr
Daniel R.Reitman <drei...@spiritone.com> wrote:
>On 08 Jun 2009 16:41:11 GMT, j...@mit.edu (John F. Carr) wrote:
>
>>In article <R-GdnY8a6J4yTbvX...@posted.nuvoxcommunications>,
>>Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>>>At least historically, there _were_ some "west of the Mississippi" states
>>>where the numeric limits were 'advisory' only, and "reasonable and prudent"
>>>was the _governing_ law. This probably didn't survive the 70's Federally-
>>>mandated speed-limit reductions.
>>
>>All states now have some number that is referred to as the "speed
>>limit." Usually this is a limit; sometimes it is more advisory.
>>States where driving 90+ miles per hour is not per se illegal are
>>
>>[... list trimmed by JFC ...]
>>
>>Each of these states has a law saying that exceeding a speed
>>limit is prima facie evidence but not conclusive evidence of
>>unreasonable speed, with unreasonable speed being the true
>
>>. . . .
>
>Not true in Oregon. ORS 811.100 imposes a basic speed standard. ORS
>811.111 makes exceeding a limit a separate infraction, including a
>limit of 65 on interstates. ORS 811.108 specifically explains that
>both the basic speed statute and limits apply, effectively on a
>"whichever is lower" basis.
811.111 sets absolute speed limits but not for all roads.
There is an absolute speed on interstate highways (subsection a),
for trucks and buses on all roads (subsection b), on ocean shores
(subsection c), in cities (subsection d), and in school zones
(subsection e). There is no absolute speed limit for passenger
cars on ordinary rural two lane roads.
Section 810.180 shows that the omission was intentional.
It refers to "a highway on which there is no speed limit
other than the limit established under ORS 811.111(1)(b)",
section 811.111(1)(b) being the 55 mph truck speed limit.
That was why I qualified my statement about Oregon to refer
to rural non-interstates. It is a violation of 811.111 to
drive 90 on any city street and interstate highway in Oregon,
and there is no "but I was driving safely" defense allowed.
It is not a violation of that section to drive that fast on
a rural two lane road, and the charge of driving faster than
reasonable and proper in violation of 811.100 is subject to
a "safe for conditions" defense.
One of the top engineers in the Oregon DOT complained to the
federal government that the national sign standard does not
permit the Oregon-style signs that say "SPEED" without "LIMIT".
(Also not allowed by national standards, but in common use in
some states, are signs that say a speed zone ends without
specifying the new speed limit.)
--
John Carr (j...@mit.edu)
Daniel R.Reitman
>811.111 sets absolute speed limits but not for all roads.
>There is an absolute speed on interstate highways (subsection a),
>for trucks and buses on all roads (subsection b), on ocean shores
>(subsection c), in cities (subsection d), and in school zones
>(subsection e). There is no absolute speed limit for passenger
>cars on ordinary rural two lane roads.
>
>Section 810.180 shows that the omission was intentional.
>It refers to "a highway on which there is no speed limit
>other than the limit established under ORS 811.111(1)(b)",
>section 811.111(1)(b) being the 55 mph truck speed limit.
>. . . .
In theory, I'll concur. As a practical matter, however, it's unlikely
that a basic speed above 55 will be allowed on a rural non-interstate.
LDC
>That was why I qualified my statement about Oregon to refer
>to rural non-interstates. It is a violation of 811.111 to
>drive 90 on any city street and interstate highway in Oregon,
>and there is no "but I was driving safely" defense allowed.
>It is not a violation of that section to drive that fast on
>a rural two lane road, and the charge of driving faster than
>reasonable and proper in violation of 811.100 is subject to
>a "safe for conditions" defense.
>From ORS 811.105:
811.105 Speeds that are evidence of basic rule violation.
(2) If no designated speed is posted by authority granted under ORS
810.180, any speed in excess of one of the following speeds is prima
facie evidence of violation of the basic speed rule:
(e) Fifty-five miles per hour in locations not otherwise described
in this section.
This would seem to rule out 90 mph on a rural road.